Ordinance 647ELECTRIC FRANCHISE ORDINANCE
ORDINANCE NO. 647
CITY OF CHANHASSEN, CARVER AND HENNEPIN COUNTY, MINNESOTA
AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY, A
MINNESOTA CORPORATION, ITS SUCCESSORS AND ASSIGNS, A 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. Northern States Power Company, a Minnesota corporation, 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 General Counsel, 401
Nicollet Mall, 8th Floor, Minneapolis, MN 55401. 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.
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 90 days after the date the City Council
adopts this Ordinance, the City Council by resolution may revoke this franchise or seek its enforcement
in a competent jurisdiction.
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.
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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 detern mi ed 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. Company may abandon underground Electric Facilities in place, provided, that at the City's
request, Company will remove all abandoned Electric Facilities interfering with a City improvement
project, but only to the extent the Facilities are uncovered or will be uncovered by excavation as part of
the City improvement project.
3.2. Street 012eWngs. 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 subject to the provisions of Section
9. 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 the right, after demand to Company to cure and the passage of a
reasonable period of time following the demand, but not to exceed five days, 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. The City conditionally waives any requirement for Company
to post a construction performance bond, certificate of insurance, letter of credit or any other form of
security or assurance that may be required, under a separate existing or future ordinance of the City, of a
person or entity obtaining the City's permission to install, replace or maintain facilities in a Public Way or
the Public Ground. Notwithstanding the foregoing, the City reserves the right to require a performance
bond acceptable to the City and Company for new installation, replacement or repairs when the
Company's completion of its work is required in order for the City to proceed with its work for
constructing a public improvement to the Public Way, or if Company has failed to properly or timely
restore its work under a permit issued within two years of the Company's project permit application.
3.4. Avoid Damage to Electric Facilities. Nothing in this Ordinance relieves any person,
including Company, from liability arising out of the failure to exercise reasonable care to avoid damaging
Electric Facilities or other persons or property while performing any activity.
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3.5. 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
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.
3.6. 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.
3.7 Shared Use of Poles. Company shall make space available on its poles or towers for
City fire, water utility, police or other City facilities upon terms and conditions reasonably acceptable to
Company 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
7 819.3 100 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. The City is obligated
to pay Company only for those portions of its relocation costs for which City has received federal funding
specifically allocated for relocation costs in the amount requested by Company. The City shall reimburse
Company pursuant to this Section and the Government Prompt Payment Act, Minn. Stat. § 471.425,
after relocation costs are determined.
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,
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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 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. Except where required for a City improvement project, the vacation of any Public Way, after
the installation of Electric Facilities, shall not operate to deprive Company of its rights to operate and
maintain such Electric Facilities until the reasonable cost of relocating the same are first paid to Company.
The City and Company shall comply with Minnesota Rules, subpart 7819.3200 and applicable ordinances
consistent with law.
SECTION 8. 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 9. FRANCHISE FEE.
9.1 Fee Schedule. During the term of the franchise hereby granted, and in lieu of any permit or
other fees being imposed on Company, the City may impose on Company a franchise fee by collecting
the amounts indicated in a Fee Schedule set forth in a separate ordinance from each customer in the
designated Company Customer Class. The parties have agreed that the initial franchise fee collected by
the Company and paid to the City in accordance with this Section 9 shall be a fixed monthly fee in
accordance with the following customer classes and in amounts as set forth pursuant to section 9.2 below.
The City reserves its right to modify these fees from time to time, upward or downward, subject to the
amendatory procedure stated in Section 12 below.
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Class
Residential
Sm C & I — Non -Derr
Sm C & I — Demand
Large C & I
Public Street Ltg
Muni Pumping — N/D
Muni Pumping — Dem
Fee Per Premise Per Month
$ 5.00
$ 14.00
$ 40.00
$ 290.00
$0
$0
$0
9.2 Separate Ordinance. The franchise fee shall be imposed by a separate ordinance duly
adopted by the City Council, which ordinance shall not be adopted until at least 90 days after written
notice of the City's intent to impose a fee has been served upon Company. The fee shall not become
effective until the beginning of a Company billing month at least 90 days after written notice enclosing
such adopted ordinance has been served upon Company by certified mail. Section 2.5 shall constitute the
sole remedy for solving disputes between Company and the City in regard to the interpretation of, or
enforcement of, the separate ordinance.
9.3 Terms Defined. For the purpose of this Section 9, the following definitions apply:
9.3.1 "Customer Class" shall refer to the classes listed on the Fee Schedule and as defined
or determined in Company's electric tariffs on file with the Commission.
9.3.2 "Fee Schedule" refers to the schedule in Section 9.1 setting forth the various
customer classes from which a franchise fee would be collected if a separate ordinance were implemented
immediately after the effective date of this franchise agreement. The Fee Schedule in the separate
ordinance may include new Customer Class added by Company to its electric tariffs after the effective
date of this franchise.
9.4 Collection of the Fee. The franchise fee shall be payable quarterly and shall be based
on the amount collected by Company during complete billing months during the period for which
payment is to be made by imposing a surcharge equal to the designated franchise fee for the applicable
customer classification in all customer billings for electric service in each class. The payment shall be due
the last business day of the month following the period for which the payment is made. The franchise
fee may be changed by ordinance from time to time; however, each change shall meet the same notice
requirements and not occur more often than annually and no change shall require a collection from any
customer for electric service in excess of the amounts specifically permitted by this Section 9. The parties
acknowledge that certain elements of collecting the franchise fee are subject to the approval of the
Commission. No franchise fee shall be payable by Company if Company is legally unable to first collect
an amount equal to the franchise fee from its customers in each applicable class of customers by imposing
a surcharge in Company's applicable rates for electric service. Company may pay the City the fee based
upon the surcharge billed subject to subsequent reductions to account for uncollectibles, refunds and
correction of erroneous billings. Company agrees to make its records available for inspection and audit
by the City at reasonable times provided that the City and its designated representative agree in writing,
subject to requirements of law otherwise, not to disclose any information which would indicate the
amount paid by any identifiable customer or customers or any other information regarding identified
customers. If any error in collection of franchise fees is discovered by either party, the City and Company
G
shall meet as soon as reasonably practical to negotiate the means, methods and timing in which the fee
payment shall be made to the City. In no event shall fees the Company cannot collect from customers
be included in the amount payable to the City.
9.5 Equivalent Fee Requirement. The separate ordinance imposing the fee shall not be
effective against Company unless it lawfully imposes and the City quarterly or more often collects a fee
or tax of the same or greater equivalent amount on the receipts from sales of energy within the City by
any other energy supplier, provided that, as to such a supplier, the City has the authority to require a
franchise fee or to impose a tax. The "same or greater equivalent amount" shall be measured, if
practicable, by comparing amounts collected as a franchise fee from each similar customer class, or by
comparing, as to similar customer classes the percentage of the annual bill represented by the amount
collected for franchise fee purposes. The franchise fee or tax shall be applicable to energy sales for any
energy use related to heating, cooling or lighting, or to run machinery and appliances, but shall not apply
to energy sales for the purpose of providing fuel for vehicles. The Company may waive the foregoing of
this Section 9.5, to the extent of such written consent.
SECTION 10. 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 this Franchise, including, but not limited to, collaborative infrastructure
planning, vegetation management and reliability performance. Upon request, the Company shall provide
to City reporting information on service reliability, including System Average Interruption Duration Index
(SAIDI) and other measures as may be beneficial and mutually agreeable, such as Customers
Experiencing Multiple interruptions (CEMI) or other outage data, the exact form and content of which
shall all be mutually agreed to by City and Company.
SECTION 11. PROVISIONS OF ORDINANCE.
11.1. 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, if any provision is held
invalid, the parties agree to negotiate in good faith to substitute, to the extent reasonably possible,
amended provisions that validly carry out the primary purpose of the invalid provisions. Where a
provision of any other City ordinance conflicts with the provisions of this Ordinance, the provisions
of this Ordinance shall prevail.
11.2. 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 12. 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
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upon the filing of Company's written consent thereto with the City Clerk after City council adoption
of the amendatory ordinance. This amendatory procedure, however, is not a waiver of Company's
or the City's rights or arguments, whether under Minnesota Statutes, Sections 21613.36 and 30113.01
or other applicable law or otherwise.
Passed and approved: October 28, 2019.
Mayor of the City of Cb6hhassen, Minnesota
Attest:
City Manager, Chanhassen, Minnesota
�•�•�• -1-11 Vn1J�
ORDINANCE
ORDINANCE NO. 647
CITY OF CHANHASSEN,
CARVER AND HENNEPIN
COUNTY, MINNESOTA
AN ORDINANCE
GRANTING TO NORTHERN
STATES POWER COMPANY, A
MINNESOTA CORPORATION,
ITS SUCCESSORS AND
ASSIGNS, A FRANCHISE
TO CONSTRUCT, OPERATE,
REPAIR AND MAINTAIN IN
THE CITY OF CHANHASSEN,
MINNESOTA, AN ELECTRIC Affidavit of Publication
DISTRIBUTION SYSTEM
AND INCLUDING
TRANSMISSIONLINES,Southwest Newspapers
INCLUDING NECESSARY
POLES, LINES, FIXTURES AND
APPURTENANCES, FOR THE
FURNISHING OF HETY ELECTRIC
ENERGY TOITS State of Minnesota)
INHABITANTS, AND OTHERS,
AND TO USE THE PUBLIC )SS.
OF THE GROUNDS AND PUBLIC
SWAYS UCH County of Carver )
PURPOSES.
THE CITY COUNCIL OF
THE CITY OF CHANHASSEN,
CARVER AND HENNEPIN Laurie A. Hartmann, being duly sworn, on oath says that she is the publisher or the authorized
COUNTY, MINNESOTA, agent of the publisher of the newspapers known as the Chaska Herald and the Chanhassen Vil-
ORDAINS:
SECTION 1. DEFINITIONS. lager and has full knowledge of the facts herein stated as follows:
For Ordinance, urthe fol ow ng (A) These newspapers have complied with the requirements constituting qualification as a legal
capitalized terms listed in newspaper, as provided by Minnesota Statute 331A.02, 331A.07, and other applicable laws, as
alphabetical order shall have the amended.
following meanings:
1.1 City. The City (B) The printed public notice that is attached to this Affidavit and identified as No.
of Chanhassen, County of was published on the date or dates and in the newspaper stated in the attached Notice and said
Carver and Hennepin, State of Minnesota. Notice is hereby incorporated as part of this Affidavit. Said notice was cut from the columns of
1.2 City Utility System. the newspaper specified. Printed below is a copy of the lower case alphabet from A to Z, both
Facilities used for providing inclusive, and is hereby acknowledged as being the kind and size of type used in the composition
non -energy related public utility and publication of the Notice:
service owned or operated by
City or agency thereof, including abcdefghijklmnopgrstuvwxyz
sewer, storm sewer, water service, n
street lighting and traffic signals,
but excluding facilities for ;G��J✓V�V�' W�%
Providing heating, lighting, orBY i r
other forms of energy. -- Laurie A. Hartmann
1.3 Commission. The
Minnesota Public Utilities
Commission, or any successor
agency or agencies, including an Subscribed and sworn before me on
agency of the federal government,
which preempts all or part of
the authority to regulate electric i1
retail rates now vested in the f 2019
Minnesota Public Utilities this day of
Commission., ;
1.4 Company. Northern
ftMME JEANNETTE BARK
States Power Company, a NOTARY PUBLIC MINNESOTA
Minnesota corporation, its �1/
successors and assigns including MY COMMISSION EXPIRES 01/31/23
all successors or assignees that No ry ublic
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, RATE INFORMATION
guys, anchors, conduits, fixtures,
and necessary appurtenances Lowest classified rate paid by commercial users for comparable space.... $31.20 per column inch
owned or operated by Company
for the purpose of providing Maximum rate allowed by law for the above matter ................................. $31.20 per column inch
electric energy for public or Rate actually charged for the above matter ............................................... $13.62 per column inch
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 General
Counsel, 401 Nicollet Mall, 8th
Floor, Minneapolis, MN 55401.
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.
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 90 days after
the date the City Council adopts
this Ordinance, the City Council
by resolution may revoke this
franchise or seek its enforcement
in a competent jurisdiction.
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.
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.
Company may abandon
underground Electric Facilities
in place, provided, that at the
City's request, Company will
remove all abandoned Electric
Facilities interfering with a City
improvement project, but only
to the extent the Facilities are
uncovered or will be uncovered
by excavation as part of the City
improvement project.
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 subject to the provisions of
Section 9. 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 reasonable
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 the right, after
demand to Company to cure
and the passage of a reasonable
period of time following the
demand, but not to exceed five
days, 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. The
City conditionally waives any
requirement for Company to post
a construction performance bond,
certificate of insurance, letter
of credit or any other form of
security or assurance that may
be required, under a separate
existing or future ordinance of
the City, of a person or entity
obtaining the City's permission
to install, replace or maintain
facilities in a Public Way or the
Public Ground. Notwithstanding
the foregoing, the City reserves
the right to require a performance
bond acceptable to the City and
Company for new installation,
replacement or repairs when
the Company's completion of
its work is required in order
for the City to proceed with its
work for constructing a public
improvement to the Public Way, or
if Company has failed to properly
or timely restore its work under
a permit issued within two years
of the Company's project permit
application.
3.4. Avoid Damage to
Electric Facilities. Nothing
in this Ordinance relieves any
person, including Company,
from liability arising out of the
failure to exercise reasonable
care to avoid damaging Electric
Facilities or other persons or
property while performing any
activity.
3.5. N o t i c e o f
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
`o be made, (iii) the extent of
:'-e improvements, (iv) the time
. hen the City will start the work,
a :d (v) if more than one Public
C- ound or Public Way is involved,
t' e order in which the work is to
pi oceed. The notice must be given
to Company a sufficient length
of time, considering seasonal
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.
3.6. Mapping Information.
The Company must promptly
provide mapping information for
any of it underground Electric
Facilities in accordance with
Minnesota Rules parts 7819.4000
atld 7819.4100.
3.7 Shared Use of Poles.
Company shall make space
available on its poles or towers
for City fire, water utility, police
ci, other City facilities upon
terms and conditions reasonably
acceptable to Company 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. The City is obligated to
pay Company only for those
portions of its relocation costs for
which City has received federal
funding specifically allocated for
relocation costs in the amount
requested by Company. The
City shall reimburse Company
pursuant to this Section and the
Government Prompt Payment
Act, Minn. Stat. § 471.425, after
relocation costs are determined.
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 1 0 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. Except where
required for a City improvement
project, the vacation of any
Public Way, after the installation
of Electric Facilities, shall not
operate to deprive Company of
its rights to operate and maintain
such Electric Facilities until the
reasonable cost of relocating the
same are first paid to( a,+ pany.
The City and Compa shall
comply with Minnesota Rules,
subpart 7819.3200 and applicable
ordinances consistent with law.
SECTION 8. 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 9. FRANCHISE
FEE.
9.1 Fee Schedule. During
the term of the franchise hereby
granted, and in lieu of any permit
or other fees being imposed on
Company, the City may impose
on Company a franchise fee by
collecting the amounts indicated
in a Fee Schedule set forth in a
separate ordinance from each
customer in the designated
Company Customer Class. The
parties have agreed that the
initial franchise fee collected by
the Company and paid to the City
in accordance with this Section
9 shall be a fixed monthly fee in
accordance with the following
customer classes and in amounts
as set forth pursuant to section 9.2
below. The City reserves its right
to modify these fees from time
to time, upward or downward,
subject to the amendatory
procedure stated in Section 12
below
Class Fee Per Premise Per
Month
Residential $ 5.00
Sm C & I - Non-Dem $ 14.00
Sm C & I - Demand $ 40.00
Large C & I $ 290 00
Public Street Ltg $ 0
Muni Pumping - N/D $ 0
Muni Pumping - Dem $ 0
9.2 Separate Ordinance.
The franchise fee shall be imposed
by a separate ordinance duly
adopted by the City Council,
which ordinance shall not be
adopted until at least 90 days
after written notice of the City's
intent to impose a fee has been
served upon Company. The fee
shall not become effective until
the beginning of a Company
billing month at least 90 days
after written notice enclosing
such adopted ordinance has been
served upon Company by certified
mail. Section 2.5 shall constitute
the sole remedy for solving
disputes between Company
and the City in regard to the
interpretation of, or enforcement
of, the separate ordinance.
9.3 Terms Defined. For
the purpose of this Section 9, the
following definitions apply:
9.3.1 "Customer Class" shall
refer to the classes listed on the
Fee Schedule and as defined
or determined in Company's
electric tariffs on file with the
Commission.
9.3.2 "Fee Schedule" refers
to the schedule in Section 9.1
setting forth the various
customer classes from which a
franchise fee would be collected
if a separate ordinance were
implemented immediately after
the effective date of this franchise
agreement. The Fee Schedule
in the separate ordinance may
include new Customer Class
added by Company to its electric
tariffs after the effective date of
this franchise.
9.4 Collection of the
Fee. The franchise fee shall be
payable quarterly and shall be
based on the amount collected
by Company during complete
billing months during the period
for which payment is to be made
by imposing a surcharge equal
to the designated franchise fee
for the applicable customer
classification in all customer
billings for electric service in
each class. The payment shall
be due the last business day of
the month following the period
for which the payment is made.
The franchise fee may be changed
by ordinance from time to time;
however, each change shall meet
the same notice requirements
and not occur more often than
annually and no change shall
require a collection from any
customer for electric service in
excess of the amounts specifically
permitted by this Section 9.
The parties acknowledge that
certain elements of collecting
the franchise fee are subject to
the approval of the Commission.
No franchise fee shall be payable
by Company if Company is
legally unable to first collect an
amount equal to the franchise
fee from its customers in each
applicable class of customers
by imposing a surcharge in
Company's applicable rates for
electric service. Company may
Pay the City the fee based upon
the surcharge billed subject to
subsequent reductions to account
for uncollectibles, refunds and
correction of erroneous billings.
Company agrees to make its
records available for inspection
and audit by the City at reasonable
times provided that the City and
its designated representative
agree in writing, subject to
requirements of law otherwise,
not to disclose any information
which would indicate the
amount paid by any identifiable
customer or customers or any
other information regarding
identified customers. If any error
in collection of franchise fees is
discovered by either party, the
City and Company shall meet as
soon as reasonably practical to
negotiate the means, methods and
timing in which the fee payment
shall be made to the City. In no
event shall fees the Company
cannot collect from customers be
included in the amount payable
to the City.
9.5 Equivalent Fee
Requirement. The separate
ordinance imposing the fee shall
not be effective against Company
unless it lawfully imposes and
the City quarterly or more often
collects a fee or tax of the same
or greater equivalent amount on
the receipts from sales of energy
within the City by any other
energy supplier, provided that, as
to such a supplier, the City has the
authority to require a franchise
fee or to impose a tax. The "same
or greater equivalent amount"
shall be measured, if practicable,
by comparing amounts collected
as a franchise fee from each
similar customer class, or by
comparing, as to similar customer
classes the percentage of the
annual bill represented by the
amount collected for franchise
fee purposes. The franchise fee or
tax shall be applicable to energy
sale- fnr anv pnprQv nap. related
to heating, cooling or lighting, or
to run machinery and appliances,
but shall not apply to energy sales
for the purpose of providing
fuel for vehicles. The Company
may waive the foregoing of this
Section 9.5, to the extent of such
written consent.
S E C T I O N 1 0
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 this Franchise,
including, but not limited to,
collaborative infrastructure
planning, vegetation
management and reliability
performance. Upon request,
the Company shall provide to
City reporting information on
service reliability, including
System Average Interruption
Duration Index (SAIDI) and other
measures as may be beneficial
and mutually agreeable, such as
Customers Experiencing Multiple
interruptions (CEMI) or other
outage data, the exact form and
content of which shall all be
mutually agreed to by City and
Company.
SECTION 11. PROVISIONS
OF ORDINANCE.
11.1. 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, if
any provision is held invalid,
the parties agree to negotiate
in good faith to substitute, to
the extent reasonably possible,
amended provisions that validly
carry out the primary purpose
of the invalid provisions. Where
a provision of any other City
ordinance conflicts with the
Provisions of this Ordinance, the
Provisions of this ordinance shall
Prevail.
11.2. 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 12. 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, however, is not a
waiver of Company's or the City's
rights or arguments, whether
under Minnesota Statutes,
Sections 21613.36 and 301B.01 or
other applicable law or otherwise.
Passed and approved: October
28, 2019.
Chanhassen, MnCesyof
Attest:
City Manager, Chanhassen,
Minnesota
(Published in the Chanhassen
Villager on Thursday, November
7 2019• No. 4804