Ordinance 645ELECTRIC FRANCHISE ORDINANCE
ORDINANCE NO. 645
CITY OF CHANHASSEN, CARVER AND HENNEPIN COUNTY, MINNESOTA
AN ORDINANCE GRANTING TO MINNESOTA VALLEY ELECTRIC COOPERATIVE,
A MINNESOTA COOPERATIVE ASSOCIATION, ITS SUCCESSORS AND ASSIGNS, A
NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND
MAINTAIN IN THE CITY OF CHANHASSEN, MINNESOTA, AN ELECTRIC
DISTRIBUTION SYSTEM AND TRANSMISSION LINES, INCLUDING NECESSARY
POLES, LINES, FIXTURES AND APPURTENANCES, FOR THE FURNISHING OF
ELECTRIC ENERGY TO THE CITY, ITS INHABITANTS, AND OTHERS, AND TO USE
THE PUBLIC GROUNDS AND PUBLIC WAYS OF THE CITY FOR SUCH PURPOSES.
THE CITY COUNCIL OF THE CITY OF CHANHASSEN, CARVER AND HENNEPIN
COUNTY, MINNESOTA, ORDAINS:
SECTION 1. DEFINITIONS.
For purposes of this Ordinance, the following capitalized terms listed in alphabetical order shall
have the following meanings:
1.1 City. The City of Chanhassen, County of Carver and Hennepin, State of Minnesota.
1.2 City Utility System. Facilities used for providing non -energy related public utility
service owned or operated by City or agency thereof, including sewer, storm sewer, water service, street
lighting and traffic signals, but excluding facilities for providing heating, lighting, or other forms of energy.
1.3 Commission. The Minnesota Public Utilities Commission, or any successor agency or
agencies, including an agency of the federal government, which preempts all or part of the authority to
regulate electric retail rates now vested in the Minnesota Public Utilities Commission.
1.4 Company. Minnesota Valley Electric Cooperative, a Minnesota cooperative association,
its successors and assigns including all successors or assignees that own or operate any part or parts of
the Electric Facilities subject to this franchise.
1.5 Electric Facilities. Electric transmission and distribution towers, poles, lines, guys,
anchors, conduits, fixtures, and necessary appurtenances owned or operated by Company for the purpose
of providing electric energy for public or private use.
1.6 Notice. A written notice served by one party on the other party referencing one or
more provisions of this Ordinance. Notice to Company shall be mailed to the Minnesota Valley
Electric Cooperative, 125 Minnesota Valley Electric Drive, Jordan, MN 55352. Notice to the City
shall be mailed to the City Administrator, City Hall, 7700 Market Boulevard, P.O. Box 147,
Chanhassen, MN 55317. Either party may change its respective address for the purpose of this
Ordinance by written notice to the other party.
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1.7 Public Way. Any public right-of-way within the City as defined by Minnesota Statutes,
Section 237.162, subd. 3.
1.8 Public Ground. Land owned or otherwise controlled by the City for park, open space
or similar public purpose, which is held for use in common by the public and not a Public Way.
SECTION 2. ADOPTION OF FRANCHISE.
2.1. Grant of Franchise. City hereby grants Company, for a period of 20 years from the date
this Ordinance is passed and approved by the City, the right to transmit and furnish electric energy for
light, heat and power for public and private use within and through the limits of the City as its boundaries
now exist or as they may be extended in the future. For these purposes, Company may construct, operate,
repair and maintain Electric Facilities in, on, over, under and across the Public Grounds and Public Ways
of City, subject to the provisions of this Ordinance. Company may do all reasonable things necessary or
customary to accomplish these purposes, subject however, to such reasonable regulations as may be
imposed by the City pursuant to ordinance or permit requirements and to the further provisions of this
franchise agreement.
2.2. Effective Date; Written Acceptance. This franchise shall be in force and effect from
and after the passage of this Ordinance and publication as required by law and its acceptance by Company.
If Company does not file a written acceptance with the City within 60 days after the date the City Council
adopts this Ordinance, the City Council by resolution may revoke this franchise, seek its enforcement in
a competent jurisdiction or pursue other remedies in law or in equity.
2.3. Service, Rates and Area. The service to be provided and the rates to be charged by
Company for electric service in City are subject to the jurisdiction of the Commission. The area within
the City in which Company may provide electric service is subject to the provisions of Minnesota Statutes,
Section 216B. 37 - .40.
2.4. Publication Expense. The expense of publication of this Ordinance will be paid by
City and reimbursed to City by Company.
2.5. Dispute Resolution. If either party asserts that the other party is in default in the
performance of any obligation hereunder, the complaining party shall notify the other party of the default
and the desired remedy. The notification shall be written. Representatives of the parties must promptly
meet and attempt in good faith to negotiate a resolution of the dispute. If the dispute is not resolved
within thirty (30) days of the date of written Notice, the parties may jointly select a mediator to facilitate
further discussion. The parties will equally share the fees and expenses of this mediator. If a mediator is
not used or if the parties are unable to resolve the dispute within 30 days after first meeting with the
selected mediator, either party may commence an action in District Court to interpret and enforce this
franchise or for such other relief as may be permitted by law or equity.
2.6. Continuation of Franchise. If the City and the Company are unable to agree on the
terms of a new franchise by the time this franchise expires, this franchise will remain in effect until a new
franchise is agreed upon, or until 90 days after the City or the Company serves written Notice to the other
party of its intention to allow the franchise to expire. However, in no event shall this franchise continue
for more than one year after expiration of the 20-year term set forth in Section 2.1.
514563v1 CH135-60
SECTION 3. LOCATION OTHER REGULATIONS.
3.1. Location of Facilities. Electric Facilities shall be located, constructed, and maintained
so as not to interfere with the safety and convenience of ordinary travel along and over Public Ways and
so as not to disrupt or interfere with the normal operation of any City Utility System. Electric Facilities
may be located on Public Grounds as determined by the City. Company's construction, reconstruction,
operation, repair, maintenance, location and relocation of Electric Facilities shall be subject to other
reasonable regulations of the City consistent with authority granted the City to manage its Public Ways
and Public Grounds under state law, to the extent not inconsistent with a specific term of this franchise
agreement.
3.2. Street Openings. Company shall not open or disturb the surface of any Public Way or
Public Ground for any purpose without first having obtained a permit from the City, if required by a
separate ordinance for which the City may impose a reasonable fee. Permit conditions imposed on
Company shall not be more burdensome than those imposed on other utilities for similar facilities or
work. Company may, however, open and disturb the surface of any Public Way or Public Ground
without a permit if (i) an emergency exists requiring the immediate repair of Electric Facilities and (ii)
Company gives telephone notice to the City before, if reasonably possible, commencement of the
emergency repair. Within two business days after commencing the repair, Company shall apply for any
required permits and pay any required fees.
3.3. Restoration. After undertaking any work requiring the opening of any Public Way, the
Company shall restore the Public Way in accordance with Minnesota Rules, part 7819.1100 and applicable
City ordinances consistent with law. Company shall restore Public Ground to as good a condition as
formerly existed, and shall maintain the surface in good condition for six (6) months thereafter. All work
shall be completed as promptly as weather permits, and if Company shall not promptly perform and
complete the work, remove all dirt, rubbish, equipment and material, and put the Public Ground in the
said condition, the City shall have, after demand to Company to cure and the passage of a reasonable
period of time following the demand, but not to exceed five days, the right to make the restoration of the
Public Ground at the expense of Company. Company shall pay to the City the cost of such work done
for or performed by the City. This remedy shall be in addition to any other remedy available to the City
for noncompliance with this Section 3.3. Company shall also post a construction performance bond
consistent with provisions of the Minnesota Rules parts 7819.3000 and 7819.0100, subpart 6.
3.5. Avoid Damage to Electric Facilities. The Company must take reasonable measures
to prevent the Electric Facilities from causing damage to persons or property. The Company must take
reasonable measures to protect the Electric Facilities from damage that could be inflicted on the Facilities
by persons, property, or the elements. The Company must take protective measures when the City
performs work near the Electric Facilities, if given reasonable notice by the City of such work prior to its
commencement.
3.6. Notice of Improvements to Streets. The City must give Company reasonable written
Notice of plans for improvements to Public Grounds or Public Ways where the City has reason to believe
that Electric Facilities may affect or be affected by the improvement. The notice must contain: (i) the
nature and character of the improvements, (ii) the Public Grounds or Public Ways upon which the
improvements are to be made, (iii) the extent of the improvements, (iv) the time when the City will start
the work, and (v) if more than one Public Ground or Public Way is involved, the order in which the work
is to proceed. The notice must be given to Company a sufficient length of time, considering seasonal
514563v1 CH135-60
working conditions, in advance of the actual commencement of the work to permit Company to make
any additions, alterations or repairs to its Electric Facilities the Company deems necessary.
3.7. Mapping Information. The Company must promptly provide mapping information
for any of it underground Electric Facilities in accordance with Minnesota Rules parts 7819.4000 and
7819.4100.
3.8 Shared Use of Poles. Company shall make space available on its poles or towers for
City fire, water utility, police or other City facilities whenever such use will not interfere with the use of
such poles or towers by Company, by another electric utility, by a telephone utility, or by any cable
television company or other form of communication company. In addition, the City shall pay for any
added cost incurred by Company because of such use by City.
SECTION 4. FACILITIES RELOCATION.
4.1. Relocation in Public Ways. The Company shall comply with Minnesota Rules, part
7819.3100 and applicable City ordinances consistent with law.
4.2. Relocation in Public Grounds. City may require Company at Company's expense to
relocate or remove its Electric Facilities from Public Ground upon a finding by City that the Electric
Facilities have become or will become a substantial impairment to the existing or proposed public use of
the Public Ground. Such relocation shall comply with applicable ordinances consistent with law.
4.3. Projects with Federal Funding. Relocation, removal, or rearrangement of any Electric
Facilities made necessary because of the extension into or through City of a federally -aided highway
project shall be governed by the provisions of Minnesota Statutes Section 161.46.
SECTION 5. TREE TRIMMING.
Unless otherwise provided in any permit or other reasonable regulation required by the City under
separate ordinance, Company may trim all trees and shrubs in the Public Grounds and Public Ways of
City to the extent Company finds necessary to avoid interference with the proper construction, operation,
repair and maintenance of any Electric Facilities installed hereunder, provided that Company shall hold
the City harmless from any liability arising therefrom.
SECTION 6. INDEMNIFICATION.
6.1. Indemnity of City. Company shall indemnify and hold the City harmless from any and
all liability, on account of injury to persons or damage to property occasioned by the construction,
maintenance, repair, inspection, the issuance of permits, or the operation of the Electric Facilities located
in the Public Grounds and Public Ways. The City shall not be' in for losses or claims occasioned
through its own negligence except for losses or claims arising out of or alleging the City's negligence as
to the issuance of permits for, or inspection of, Company's plans or work.
6.2. Defense of City. In the event a suit is brought against the City under circumstances
where this agreement to indemnify applies, Company at its sole cost and expense shall defend the City in
such suit if written notice thereof is promptly given to Company within a period wherein Company is not
prejudiced by lack of such notice. If Company is required to indemnify and defend, it will thereafter have
5145630 CHI 35-60
control of such litigation, but Company may not settle such litigation without the consent of the City,
which consent shall not be unreasonably withheld. This section is not, as to third parties, a waiver of any
defense or immunity otherwise available to the City; and Company, in defending any action on behalf of
the City shall be entitled to assert in any action every defense or immunity that the City could assert in its
own behalf. This franchise agreement shall not be interpreted to constitute a waiver by the City of any
of its defenses of immunity or limitations on liability under Minnesota Statutes, Chapter 466.
SECTION 7. VACATION OF PUBLIC WAYS.
The City shall give Company at least two weeks prior written notice of a proposed vacation of a
Public Way. The City and the Company shall comply with Minnesota Rules, 7819.3200 and applicable
ordinances consistent with law.
SECTION 8. ABANDONED FACILITIES.
The Company shall comply with City ordinances, Minnesota Statutes, Section 216D.01 et seq.
and Minnesota Rules Part 7819.3300, as they may be amended from time to time. The Company shall
maintain records describing the exact location of all abandoned and retired Facilities within the City,
produce such records at the City's request and comply with the location requirements of Section
216D.04 with respect to all Facilities, including abandoned and retired Facilities.
SECTION 9. CHANGE IN FORM OF GOVERNMENT.
Any change in the form of government of the City shall not affect the validity of this Ordinance.
Any governmental unit succeeding the City shall, without the consent of Company, succeed to all of the
rights and obligations of the City provided in this Ordinance.
SECTION 10. FRANCHISE FEE.
10.1. Form. During the term of the franchise hereby granted, and in addition to permit fees
being imposed or that the City has a right to impose, the City may charge the Company a franchise
fee. The fee may be (i) a percentage of gross revenues received by the Company for its operations
within the City, or (ii) a flax fee per customer based on metered service to retail customers within the
City or on some other similar basis, or (iii) a fee based on units of energy delivered to any class of
retail customers within the corporate limits of the City. The formula for a franchise fee based on units
of energy delivered may incorporate both commodity and demand units. The method of imposing
the franchise fee, the percentage of revenue rate, or the flat rate based on metered service may differ
for each customer class or combine the methods described in (i) - (iii) above in assessing the fee. The
City shall seek to use a formula that provides a stable and predictable amount of fees, without placing
the Company at a competitive disadvantage. If the Company claims that the City -required fee formula
is discriminatory or otherwise places the Company at a competitive disadvantage, the Company shall
provide a formula that will produce a substantially similar fee amount to the City and reimburse the
City's reasonable fees and costs in reviewing the formula. The City will attempt to accommodate the
Company but is under no franchise obligation to adopt the Company -proposed franchise fee formula
and such review will not delay the implementation of the City -imposed fee.
10.2. Separate Ordinance. The franchise fee shall be imposed by separate ordinance duly
adopted by the City Council, which ordinance shall not be adopted until at least thirty (30) days after
514563v1 CH135-60
written notice enclosing such proposed ordinance has been served upon the Company. The fee shall
become effective ten (10) days after written notice enclosing such adopted ordinance has been served
upon the Company by certified mail.
10.3. Condition of Fee. The separate ordinance imposing the fee shall not be effective
against the Company unless it lawfully imposes a fee of the same or substantially similar amount on
the sale of electric energy within the City by any other electric energy supplier, provided that, as to
such supplier, the City has the authority to require a franchise fee.
10.4. Collection of Fee. The franchise fee shall be payable not less than quarterly during
complete billing months of the period for which payment is to be made. The franchise fee formula
may be changed from time to time; however, the change shall meet the same notice requirements and
the fee may not be changed more often than annually. Such fee shall not exceed any amount that the
Company may legally charge to its customers prior to payment to the City. Such fee is subject to
subsequent reductions to account for uncollectibles and customer refunds incurred by the Company.
The Company agrees to make available for inspection by the City at reasonable times all records
necessary to audit the Company's determination of the franchise fee payments.
10.5. Continuation of Franchise Fee. If this franchise expires and the City and the Company
are unable to agree upon terms of a new franchise, the franchise fee, if any being imposed by the City at
the time this franchise expires, will remain in effect until a new franchise is agreed upon notwithstanding
the franchise expiration as provided in section 2.6 above.
SECTION 11. SERVICE RELIABILITY INFRASTRUCTURE REPORTING.
The Company and the City shall meet annually at a mutually convenient time to discuss items of
concern or interest relating to the Company's service reliability in the previous year, compared to other
service areas, infrastructure plans for the coming year and other matters raised by the City or Company.
Upon request, the Company shall produce reports comparing its service record in the City to other service
areas and provide, among other reasonably required data, System Average Interruption Duration Index
(SAIDI), Customers Experiencing Multiple interruptions (CEMI) and municipal pumping station and
general customer outage data for the previous year.
SECTION 12. PROVISIONS OF ORDINANCE.
12.1. Severability. Every section, provision, or part of this Ordinance is declared separate
from every other section, provision, or part; and if any section, provision, or part shall be held invalid,
it shall not affect any other section, provision, or part; provided, however, that if the City is unable to
enforce its franchise fee provisions for any reason the City will be allowed to amend the franchise
agreement to impose a franchise fee pursuant to statute. Where a provision of any other City
ordinance conflicts with the provisions of this Ordinance, the provisions of this Ordinance shall
prevail.
12.2. Limitation on Applicability. This Ordinance constitutes a franchise agreement
between the City and Company as the only parties and no provision of this franchise shall in any way
inure to the benefit of any third person (including the public at large) so as to constitute any such
person as a third party beneficiary of the agreement or of any one or more of the terms hereof, or
otherwise give rise to any cause of action in any person not a party hereto.
514563vl CH135-60
SECTION 13. AMENDMENT PROCEDURE.
Either party to this franchise agreement may at any time propose that the agreement be
amended. This Ordinance may be amended at any time by the City passing a subsequent ordinance
declaring the provisions of the amendment, which amendatory ordinance shall become effective
upon the filing of Company's written consent thereto with the City Clerk after City council adoption
of the amendatory ordinance. This amendatory procedure is subject, however, to the City's police
power and franchise rights under Minnesota Statutes, Section 21613.36 and 301B.01, which rights are
not waived hereby.
Passed and approved: October 28, 2019.
Mayor of the City of Cha assen, Minnesota
Attest:
City Manager, Chanhassen, Minnesota
514563vl CH135-60
ELECTRIC FRANCHISE
ORDINANCE
ORDINANCE NO. 645
CITY OF CHANHASSEN,
CARVER AND HENNEPIN
COUNTY, MINNESOTA
AN ORDINANCE GRANTING
TO MINNESOTA VALLEY
ELECTRIC COOPERATIVE, A
MINNESOTA COOPERATIVE
ASSOCIATION, ITS
SUCCESSORS AND ASSIGNS, A
NONEXCLUSIVE FRANCHISE
TO CONSTRUCT, OPERATE,
REPAIR AND MAINTAIN IN
Affidavit of Publication
THE CITY OF CHANHASSEN,
MINNESOTA, AN ELECTRIC
DSouthwest
DISTRIBUTION
Newspapers
SYSTEM
AND TRANSMISSION LINES,
INCLUDING NECESSARY
POLES, LINES, FIXTURES AND
State of Minnesota)
APPURTENANCES, FOR THE
FURNISHING OF ELECTRIC
)SS.
ENERGY TO THE CITY, ITS
County of Carver)
INHABITANTS, AND OTHERS,
Y
AND TO USE THE PUBLIC
GROUNDS AND PUBLIC WAYS
OF THE CITY FOR SUCH
PURPOSES.
Laurie A. Hartmann, being duly sworn, on oath says that she is the publisher or the authorized
THE CITY COUNCIL OF
THE CITY OF CHANHASSEN,
agent of the publisher of the newspapers known as the Chaska Herald and the Chanhassen Vil-
CARVER AND HENNEPIN
lager and has full knowledge of the facts herein stated as follows:
g g
COUNTY, MINNESOTA,
ORDAINS:
(A) These newspapers have complied with the requirements constituting qualification as a legal
SECTION 1. DEFINITIONS.
newspaper, as provided by Minnesota Statute 331A.02, 33IA.07, and other applicable laws, as
For purposes of this
amended.
Ordinance, the following
capitalized terms listed in
(B) The printed public notice that is attached to this Affidavit and identified as No.
alphabetical order shall have the
following meanings:
was published on the date or dates and in the newspaper stated in the attached Notice and said
1.1 City. The City
Notice is hereby incorporated as part of this Affidavit. Said notice was cut from the columns of
of Chanhassen, County of
the newspaper specified. Printed below is a copy of the lower case alphabet from A to Z, both
Carver and Hennepin, State of
inclusive, and is hereby acknowledged as being the kind and size of type used in the composition
Minnesota.
and publication of the Notice:
1.2 City Utility System.
Facilities used for providing
abedefghijkhnnopgrstuvwxyz
non -energy related public utility
service owned or operated by
City or agency thereof, including
sewer, storm sewer, water service,
Py: -
street lighting and traffic signals,
but excluding facilities for
Laurie A. Hartmann
providing heating, lighting, or
other forms of energy.
1.3 Commission. The
Subscribed and sworn before me on
Minnesota Public Utilities
Commission, or any successor
agency or agencies, including an
h allorepartent
this �day } i 't`U �T �'�' `t 2019
ch preempts of
of
the authority to regulate electric
retail rates now vested in the
�`
Minnesota Public Utilities
1 �7�'`
�' ; �Y t JEANNETTE BARK
Commission.
+_ � ,
1.4 Company. Minnesota
NOTARY PUBLIC - NINNESOTA
Valley Electric Cooperative,
a Minnesota cooperative
Notary ublic
�tsF VYCO:',PPSSIONEXPIRES 01/31/231
association, its successors and
a<-
assigns including all successors
or assignees that own or operate
any part or parts of the Electric
Facilities subject to this franchise.
1.5 Electric Facilities.
RATE INFORMATION
Electric transmission_ and
distribution towers, poles, lines,
Lowest classified rate paid by commercial users for comparable space .... $31.20 per column inch
guys, anchors, conduits, fixtures,
Maximum rate allowed by law for the above matter ................................. $31.20 per column inch
and necessary appurtenances
owned or operated by Company
Rate actually charged for the above matter ............................................... $13.62 per column inch
for the purpose of providing
electric energy for public or
private use.
1.6 Notice. A written
notice served by one party on
the other party referencing
one or more provisions of this
Ordinance. Notice to Company
shall be mailed to the Minnesota
Valley Electric Cooperative, 125
Minnesota Valley Electric Drive,
Jordan, MN 55352. Notice to the
City shall be mailed to the City
Administrator, City Hall, 7700
Market Boulevard, P.O. Box 147,
Chanhassen, MN 55317. Either
(6) months thereafter. All work
shall be completed as promptly as
weather permits, and if Company
party may cnange its respective
i'ne parties will equally share
shall not promptly perform and
address for the purpose of this
the fees and expenses of this
complete the work, remove all
Ordinance by written notice to
mediator. If a mediator is not
dirt, rubbish, equipment and
the other party
used or if the parties are unable
material, and put the Public
1.7 Public Way. Any public
to resolve the dispute within 30
Ground in the said condition,
right-of-way within the City as
days after first meeting with the
the City shall have, after demand
defined by Minnesota Statutes,
selected mediator, either party
to Company to cure and the
Section 237.162, subd. 3.
may commence an action in
passage of a reasonable period
1.8 Public Ground. Land
District Court to interpret and
of time following the demand,
owned or otherwise controlled
enforce this franchise or for such
but not to exceed five days, the
by the City for park, open space
other relief as may be permitted
right to make the restoration of
or similar public purpose, which
by law or equity.
the Public Ground at the expense
is held for use in common, by the
2.6. Continuation of
of Company. Company shall pay
public and not a Public Way.
Franchise. If the City and the
to the City the cost of such work
SECTION 2. ADOPTION OF
Company are unable to agree on
done for or performed by the City.
FRANCHISE.
the terms of a new franchise by
This remedy shall be in addition to
2.1. Grant of Franchise.
the time this franchise expires,
any other remedy available to the
City hereby grants Company,
this franchise will remain in
City for noncompliance with this
for a period of 20 years from the
effect until a new franchise is
Section 3.3. Company shall also
date this Ordinance is passed
agreed upon, or until 90 days
post a construction performance
and approved by the City, the
after the City or the Company
bond consistent with provisions
right to transmit and furnish
serves written Notice to the other
of the Minnesota Rules parts
electric energy for light, heat and
party of its intention to allow the
7819.3000 and 7819.0100, subpart 6.
power for public and private use
franchise to expire. However,
3.5. Avoid Damage to
within and through the limits
in no event shall this franchise
Electric Facilities. The Company
of the City as its boundaries
continue for more than one year
must take reasonable measures
now exist or as they may be
after expiration of the 20-year
to prevent the Electric Facilities
extended in the future. For
term set forth in Section 2.1.
from causing damage to persons
these purposes, Company may
SECTION 3. LOCATION,
or property. The Company must
construct, operate, repair and
take reasonable measures to
maintain Electric Facilities in,
OTHER REGULATIONS.
protect the Electric Facilities from
on, over, under and across the
Public Grounds and Public Ways
3.1. Location of Facilities.
Electric Facilities shall be located,
damage that could be inflicted
on the Facilities by persons,
of City, subject to the provisions
constructed, and maintained so as
interfere the safety and
property, or the elements. The
of this Ordinance. Company may
do all reasonable things necessary
not to with
convenience of ordinary travel
Company must take protective
measures when the City performs
or customary to accomplish these
along and over Public Ways and
work near the Electric Facilities,
purposes, subject however, to
so as not to disrupt or interfere
if given reasonable notice by the
such reasonable regulations as
with the normal operation of
City of such work prior to its
may be imposed by the City
any City Utility System. Electric
commencement.
pursuant to ordinance or permit
requirements and to the further
Facilities may be located on
Public Grounds as determined
3.6. N o t i c e o f
Improvements to Streets.
provisions of this franchise
by the City. Company's
The City must give Company
agreement.
construction, reconstruction,
reasonable written Notice of
2.2. Effective Date; Written
operation, repair, maintenance,
plans for improvements to Public
Acceptance. This franchise
location and relocation of Electric
Grounds or Public Ways where
shall be in force and effect from
Facilities shall be subject to other
the City has reason to believe that
and after the passage of this
reasonable regulations of the
Electric Facilities may affect or
Ordinance and publication as
City consistent with authority
the City to manage its
be affected by the improvement.
required by law and its acceptance
by Company. If Companydoesnot
granted
Public Ways and Public Grounds
The notice must contain:
e
the nature and character of the
file a written acceptance with
under state law, to the extent not
inconsistent with a specific term
improvements, (i the Public
the City within 60 days after
the date the City Council adopts
of this franchise agreement.
Grounds or Public Ways upon
which the improvements are
this Ordinance, the City Council
by resolution may revoke this
3.2. Street Openings.
Company shall not open or
to be made, (ent the extent of
the improvements, the time
franchise, seek its enforcement
disturb the surface of any Public
Way or Public Ground for any
rt
when the City will start the work,
in a competent jurisdiction or
pursue other remedies in law or
purpose without first having
and (v) if more than one Public
Ground Public Way is involved,
in equity.
obtained a permit from the City, if
required by a separate ordinance
the orderr in which the work is to
2.3. Service, Rates and Area.=
The service to be provided and the
for which the City may impose a
proceed. The notice must be given
to Company a sufficient length
rates to be charged by Company
reasonable fee. Permit conditions
imposed on Company shall
of time, considering seasonal
for electric service in City are
subject to the jurisdiction of the
not be more burdensome than
working conditions, advance
the actual commencement of
Commission. The area within
those imposed on other utilities
for facilities or work.
of
the work to permit Company to
the City in which Company may
provide electric service is subject
similar
Company may, however, open and
make any additions, alterations
or repairs to its Electric Facilities
to the provisions of Minnesota
disturb the surface of any Public
Way or Public Ground without a
the Company deems necessary.
Statutes, Section 216B. 37 - .40.
2.4. Publication Expense.
permit if (i) an emergency exists
3.7. Mapping Information.
The Company must promptly
The expense of publication of
requiring the immediate repair
Electric Facilities and (ii)
provide mapping information for
this Ordinance will be paid by
City and reimbursed to City by
of
Company gives telephone notice
any of it underground Electric
Facilities in accordance with
Company.
2.5. Dispute Resolution.
to the City before, if reasonably
possible, commencement of the
Minnesota Rules parts 7819.4000
If either party asserts that the
emergency repair. Within two
and 7819.4100.
3.8 Shared Use of Poles.
other party is in default in the
business days after commencing
the repair, Company shall apply
Company shall make space
performance of any obligation
hereunder, the complaining
for any required permits and pay
available on its poles or towers
for City fire, water utility, police
party shall notify the other party
of the default and the desired
any required fees.
3.3. Restoration. After
or other City facilities whenever
such use will not interfere with
remedy. The notification shall be
written. Representatives of the
undertaking any work requiring
the opening of any Public Way,
the use of such poles or towers
parties must promptly meet and
the Company shall restore the
Public Way in accordance with
by Company, by another electric
utility, by a telephone utility, or
attempt in good faith to negotiate
g
a resolution of the dispute. If the
Minnesota Rules, part
by any cable television company
or other form of communication
dispute is not resolved within
thirty (30) days of the date of
and applicable City ordinancesdinances
consistent with law. Company
company. In addition, the City
written Notice, the parties may
shall restore Public Ground to
a condition as formerly
shall pay for any added cost
incurred by Company because of
jointly select a mediator to
facilitate further discussion.
as good
existed, and shall maintain the
such use by City
surface in good condition for six
SECTION 4. FACILITIES
RELOCATION.
4.1. Relocation in Public
Ways. The Company shall
comply with Minnesota Rules,
part 7819.3100 and applicable City
ordinances consistent with law.
4.2. Relocation in Public
Grounds. City may require
Company at Company's expense
to relocate or remove its Electric
Facilities from Public Ground
upon a finding by City that the
Electric Facilities have become
or will become a substantial
impairment to the existing
or proposed public use of the
Public Ground. Such relocation
shall comply with applicable
ordinances consistent with law.
4.3. Projects with Federal
Funding. Relocation, removal,
or rearrangement of any Electric
Facilities made necessary because
of the extension into or through
City of a federally -aided highway
project shall be governed by the
provisions of Minnesota Statutes
Section 161.46.
SECTION 5. TREE
TRIMMING.
Unless otherwise provided in
any permit or other reasonable
regulation required by the
City under separate ordinance,
Company may trim all trees and
shrubs in the Public Grounds and
Public Ways of City to the extent
Company finds necessary to avoid
interference with the proper
construction, operation, repair
and maintenance of any Electric
Facilities installed hereunder,
provided that Company shall
hold the City harmless from any
liability arising therefrom.
S E C T I O N 6
INDEMNIFICATION.
6.1. Indemnity of City.
Company shall indemnify and
hold the City harmless from
any and all liability, on account
of injury to persons or damage
to property occasioned by the
construction, maintenance,
repair, inspection, the issuance
of permits, or the operation of the
Electric Facilities located in the
Public Grounds and Public Ways.
The City shall not be indemnified
for losses or claims occasioned
through its own negligence except
for losses or claims arising out of
or alleging the City's negligence
as to the issuance of permits for,
or inspection of, Company's plans
or work.
6.2. Defense of City. In the
event a suit is brought against the
City under circumstances where
this agreement to indemnify
applies, Company at its sole cost
and expense shall defend the City
in such suit if written notice
thereof is promptly given to
Company within a period wherein
Company is not prejudiced by
lack of such notice. If Company
is required to indemnify and
defend, it will thereafter have
control of such litigation, but
Company may not settle such
litigation without the consent
of the City, which consent shall
not be unreasonably withheld.
This section is not, as to third
parties, a waiver of any defense
or immunity otherwise available
to the City; and Company; in
defending any action on behalf
of the City shall be entitled to
assert in any action every defense
or immunity that the City could
assert in its own behalf. This
franchise agreement shall not be
interpreted to constitute a waiver
by the City of any of its defenses
of immunity or limitations
on liability under Minnesota
Statutes, Chapter 466.
SECTION 7. VACATION OF
PUBLIC WAYS.
The City shall give Company
at least two weeks prior written
notice of a proposed vacation
of a Public Way. The City and
the Company shall comply with
Minnesota Rules, 7819.3200 and
applicable ordinances consistent
with law.
SECTION 8.
ABANDONED FACILITIES.
The Company shall comply
with City ordinances, Minnesota
Statutes, Section 216D.01
et seq. and Minnesota Rules
Part 7819.3300, as they may be
amended from time to time. The
Company shall maintain records
describing the exact location
of all abandoned and retired
Facilities within the City, produce
such records at the City's request
and comply with the location
requirements of Section 216D.04
with respect to all Facilities,
including abandoned and retired
Facilities.
SECTION 9. CHANGE IN
FORM OF GOVERNMENT.
Any change in the form of
government of the City shall
not affect the validity of this
Ordinance. Any governmental
unit succeeding the City shall,
without the consent of Company,
succeed to all of the rights and
obligations of the City provided
in this Ordinance.
SECTION 10. FRANCHISE
FEE.
10.1. Form. During the term
of the franchise hereby granted,
and in addition to permit fees
being imposed or that the City has
a right to impose, the City may
charge the Company a franchise
fee. The fee may be (i) a percentage
of gross revenues received by
the Company for its operations
within the City, or (ii) a flat fee
per customer based on metered
service to retail customers within
the City or on some other similar
basis, or (iii) a fee based on units
of energy delivered to any class
of retail customers within the
corporate limits of the City. The
formula for a franchise fee based
on units of energy delivered may
incorporate both commodity and
demand units. The method of
imposing the franchise fee, the
percentage of revenue rate, or the
flat rate based on metered service
may differ for each customer
class or combine the methods
described in (i) - (iii) above in
assessing the fee. The City
shall seek to use a formula that
provides a stable and predictable
amount of fees, without placing
the Company at a competitive
disadvantage. If the Company
claims that the City -required
fee formula is discriminatory or
otherwise places the Company
at a competitive disadvantage,
the Company shall provide a
formula that will produce a
substantially similar fee amount
to the City and reimburse the
City's reasonable fees and costs
in reviewing the formula. The
City will attempt to accommodate
the Company but is under no
franchise obligation to adopt the
Company -proposed franchise fee
formula and such review will not
delay the implementation of the
City -imposed fee.
10.2. Separate Ordinance.
The franchise fee shall be imposed
by separate ordinance duly
adopted by the City Council,
which ordinance shall not be
adopted until at least thirty (30)
days after written notice enclosing
such proposed ordinance has been
served upon the Company. The
fee shall become effective ten (10)
days after written notice enclosing
such adopted ordinance has been
served upon the Company by
certified mail.
10.3. Condition of Fee. The
separate ordinance imposing the
fee shall not be effective against
the Company unless it lawfully
imposes a fee of the same or
substantially similar amount on
the sale of electric energy within
the City by any other electric
energy supplier, provided that, as
to such supplier, the City has the
authority to require a franchise
fee.
10.4. Collection of Fee. The
franchise fee shall be payable
not less than quarterly during
complete billing months of the
period for which payment is to be
made. The franchise fee formula
may be changed from time to time;
however, the change shall meet
the same notice requirements
and the fee may not be changed
more often than annually. Such
fee shall not exceed any amount
that the Company may legally
charge to its customers prior to
payment to the City. Such fee is
subject to subsequent reductions
to account for uncollectibles and
customer refunds incurred by the
Company. The Company agrees
to make available for inspection
by the City at reasonable times
all records necessary to audit the
Company's determination of the
franchise fee payments.
10.5. Continuation of
Franchise Fee. If this franchise
expires and the City and the
Company are unable to agree
upon terms of a new franchise,
the franchise fee, if any being
imposed by the City at the time
this franchise expires, will remain
in effect until a new franchise is
agreed upon notwithstanding the
franchise expiration as provided
in section 2.6 above.
S E C T I O N 1 1
SERVICE RELIABILITY,
I N F R A S T R U C T U R E
REPORTING.
The Company and the City
shall meet annually at a mutually
convenient time to discuss items
of concern or interest relating to
the Company's service reliability
in the previous year, compared to
other serviceareas, infrastructure
plans for the coming year and
other matters raised by the City
or Company. Upon request, the
Company shall produce reports
comparing its service record in
the City to other service areas and
provide, among other reasonably
required data, System Average
Interruption Duration Index
(SAIDI), Customers Experiencing
Multiple interruptions (CEMI)
and municipal pumping station
and general customer outage data
for the previous year.
SECTION 12. PROVISIONS
OF ORDINANCE.
12.1. Severability. Every
section, provision, or part of
this Ordinance is declared
separate from every other section,
provision, or part; and if any
section, provision, or part shall be
held invalid, it shall not affect any
other section, provision, or part;
provided, however, that if the City
is unable to enforce its franchise
fee provisions for any reason the
City will be allowed to amend the
franchise agreement to impose a
franchise fee pursuant to statute.
Where a provision of any other
City ordinance conflicts with the
provisions of this Ordinance, the
provisions of this Ordinance shall
prevail.
12.2. Limitation on
Applicability. This Ordinance
constitutes a franchise agreement
between the City and Company as
the only parties and no provision
of this franchise shall in any way
inure to the benefit of any third
person (including the public at
large) so as to constitute any
such person as a third party
beneficiary of the agreement or
of any one or more of the terms
hereof, or otherwise give rise to
any cause of action in any person
not a party hereto.
SECTION 13. AMENDMENT
PROCEDURE.
Either party to this franchise
agreement may at any time
propose that the agreement be
amended. This Ordinance maybe
amended at any time by the City
passing a subsequent ordinance
declaring the provisions of the
amendment, which amendatory
ordinance shall become effective
upon the filing of Company's
written consent thereto with
the City Clerk after City council
adoption of the amendatory
ordinance. This amendatory
procedure is subject, however,
to the City's police power and
franchise rights under Minnesota
Statutes, Section 216B.36 and
301B.01, which rights are not
waived hereby.
Passed and approved: October
28, 2019.
Mayor of the City of
Chanhassen, Minnesota
Attest:
City Manager, Chanhassen,
Minnesota
(Published in the Chanhassen
Villager on Thursday, November
7, 2019; No. 4802)