HomeMy WebLinkAbout2507-16 - ADMIN Ordinance - City Council - 2016/09/19ORDINANCE NO. 2507-16
ORDINANCE GRANTING CENTERPOINT ENERGY RESOURCES CORP., D/B/A
CENTERPOINT ENERGY MINNESOTA GAS ("CENTERPOINT ENERGY"),, ITS
SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT,
OPERATE, REPAIR AND MAINTAIN FACILITIES AND EQUIPMENT FOR THE
TRANSPORTATION, DISTRIBUTION, MANUFACTURE AND SALE OF GAS ENERGY
FOR PUBLIC AND PRIVATE USE AND TO USE PUBLIC WAYS AND PUBLIC
GROUNDS OF THE CITY FOR SUCH PURPOSES; AND PRESCRIBING CERTAIN
TERMS AND CONDITIONS THEREOF
THE CITY OF ST. LOUIS PARK DOES ORDAIN:
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 St. Louis Park, County of Hennepin, State of Minnesota.
1.2 City Utility System. Facilities used for providing public utility service owned or
operated by City or agency thereof, including sanitary sewer, storm sewer, street lighting, traffic
signals, and water service, 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 gas retail rates now vested in the Minnesota Public Utilities Commission.
1.4 Company. CenterPoint Energy Resources Corp., d/b/a CenterPoint Energy
Minnesota Gas ("CenterPoint Energy"), its successors and assigns, including all successors or assigns
that own or operate any part or parts of the Gas Facilities subject to this Franchise.
1.5 Gas. Natural gas, manufactured gas, mixture of natural gas and manufactured gas or
other forms of gas energy.
1.6 Gas Facilities. Gas transmission and distribution pipes, mains, lines, ducts, fixtures,
and all necessary facilities, equipment and appurtenances owned, operated or otherwise used by the
Company for the purpose of providing gas energy for public use.
1.7 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:
CenterPoint Energy,
Minnesota Division Vice President,
505 Nicollet Mall
Minneapolis, Minnesota 55402.
Notice to the City shall be mailed to:
City Manager,
City Hall,
5005 Minnetonka Boulevard,
St. Louis Park, MN 55416.
Ordinance No. 2507-16 -2-
Either party may change its respective address for the purpose of this Ordinance by written notice
to the other party.
1.7 Ordinance. This gas franchise ordinance, also referred to as the Franchise.
1.8 Public Ground. Land owned or otherwise controlled by the City for park, open space
or similar purpose, which is held for use in common by the public.
1.8 Public Way. Any street, alley, walkway or other public right-of-way located within
the City.
SECTION 2. ADOPTION OF FRANCHISE.
2.1 Grant of Franchise. City hereby grants Company, for a period of 20 years from the
date passed and approved by the City, the right to transmit and furnish gas energy for light, heat,
power and other purposes 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 Gas Facilities in, on, over, under and across the Public Grounds
and Public Ways of City, subject to the provisions of this franchise. 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 a public right-of-way ordinance or permit
requirements adopted consistent with state law.
2.2 Effective Date; Written Acceptance. This franchise agreement shall be in force and
effect from and after passage of this Ordinance, its acceptance by Company, and its publication as
required by law. The City, by Council resolution, may revoke this franchise agreement if Company
does not file a written acceptance with the City within 90 days after publication.
2.3 Service and Rates. The service to be provided and the rates to be charged by Company
for gas service in City are subject to the jurisdiction of the Commission.
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 parry asserts that the other party is in default in the
performance of any obligation hereunder, the complaining party shall notify the other parry 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 30 days of the 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 for breach of contract, or
either party may take any other action permitted by law.
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 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.
Ordinance No. 2507-16 -3-
SECTION 3. LOCATION, OTHER REGULATIONS.
31 Location of Facilities. Gas 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 normal operation of any City Utility System previously installed therein. Gas
Facilities shall be located on Public Grounds as determined by the City. Company's construction,
reconstruction, operation, repair, maintenance and location of Gas Facilities shall be subject to permits
if required by separate ordinance and to other reasonable regulations of the City to the extent not
inconsistent with the terms of this franchise agreement. Company may abandon underground Gas
Facilities in place, provided at the City's request, Company will remove abandoned metal or concrete
encased conduit interfering with a City improvement project, but only to the extent such conduit is
uncovered by excavation as part of the City improvement project. The Company shall maintain
records describing the exact location of all abandoned and retired Gas Facilities within the Public
Ways and Public Grounds, produce such records at the City's request and comply with the location
requirements of Section 216D.04 with respect to all Gas Facilities, including abandoned and retired
Gas Facilities not located in Public Ways and Public Grounds.
3.2 Field Locations and Mapping Information. Company shall provide field locations for
its underground Gas Facilities within the City consistent with the requirements of Minnesota Statutes,
Chapter 216D. Company shall provide current mapping information for any of its Gas Facilities in
accordance with Minnesota Rules Parts 7819.4000 and 7819.4100 and other applicable state and
federal laws.
3.3 Street Openings. Company shall not open or disturb any Public Ground or Public
Way 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 any Public Ground or Public Way without permission
from the City where an emergency exists requiring the immediate repair of Gas Facilities. In such
event Company shall notify the City by telephone to the office designated by the City as soon as
practicable. Not later than the second working day thereafter, Company shall obtain any required
permits and pay any required fees.
3.4 Restoration. After undertaking any work requiring the opening of any Public Ground
or Public Way, Company shall restore the same, including paving and its foundation, in accordance
with Minnesota Rules Part 7819.1100, to as good a condition as formerly existed, and shall maintain
any paved surface in good condition for two years thereafter. The 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 or Public Way 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 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 3.4, but the City hereby 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.
Ordinance No. 2507-16 -4-
3.5 Avoid Damage to Gas Facilities. Nothing in this Ordinance relieves any person from
liability arising out of the failure to exercise reasonable care to avoid damaging Gas Facilities while
performing any activity.
3.6 Notice of Improvements. The City must give Company reasonable notice of plans for
improvements to Public Grounds or Public Ways where the City has reason to believe that Gas
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 and 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 in advance
of the actual commencement of the work to permit Company to make any necessary additions,
alterations or repairs to its Gas Facilities.
SECTION 4. RELOCATIONS.
4.1 Relocation of Gas Facilities in Public Ways. Company shall comply with the
requirements of Minnesota Rules, Part 7819.3100 and applicable law relating to relocation of Gas
Facilities in Public Ways. If a relocation is ordered within five (5) years of a prior relocation of the
same Gas Facilities, which was made at Company expense, the City shall reimburse Company for
non -betterment expenses on a time and material basis, provided that if a subsequent relocation is
required because of the extension of a City Utility System to a previously unserved area, Company
may be required to make the subsequent relocation at its expense. Nothing in this Ordinance requires
Company to relocate, remove, replace or reconstruct at its own expense its Gas Facilities where such
relocation, removal, replacement or reconstruction is solely for the convenience of the City and is not
reasonably necessary for the construction or reconstruction of a Public Way or City Utility System or
other City improvement.
4.2 Relocation of Gas Facilities in Public Ground. City may require Company, at
Company's expense, to relocate or remove its Gas Facilities from Public Ground upon a finding by
City that the Gas Facilities have become or will become a substantial impairment to the existing or
proposed public use of the Public Ground.
4.3 Projects with Federal Funding. Relocation, removal or rearrangement of any
Company Gas 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, as supplemented or amended.
4.4 No Waiver. The provisions of this fianchise apply only to facilities constructed in
reliance on a franchise from the City and shall not be construed to waive or modify any rights obtained
by Company for installations within a Company right-of-way acquired by easement or prescriptive
right before the applicable Public Ground or Public Way was established, or Company's rights under
state or county permit.
SECTION 5. INDEMNIFICATION.
5.1 Indemnity of City. Company shall indemnify, keep and hold the City free and
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
Gas Facilities located in the Public Grounds and Public Ways. The City shall not be indemnified for
Ordinance No. 2507-16 -5-
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. The City shall not be indemnified if the injury or damage results from the performance in a
proper manner, of acts reasonably deemed hazardous by Company, and such performance is
nevertheless ordered or directed by City after notice of Company's determination.
5.2 Defense of City. In the event a suit is brought against the City under circumstances
where this franchise 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 shall not be interpreted
to constitute a waiver by the City of any of its defenses of immunity or limitations under Minnesota
Statutes Chapter 466.
SECTION 6. 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 Gas Facilities, shall not operate to deprive Company of its rights to
operate and maintain such Gas Facilities, until the reasonable cost of relocating the same and the loss
and expense resulting from such relocation is first paid to Company. In no case, however, shall City
be liable to Company for failure to specifically preserve a right-of-way ander Minnesota Statutes,
Section 160.29.
SECTION 7. 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 S. FRANCHISE FEE.
8.1 Fee Schedule. During the term of the franchise hereby granted, 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. Such fee shall
not exceed any amount that the Company may legally charge to its customers.
8.2 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 enclosing such proposed ordinance has been served upon Company by certified
mail. 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. No action
by the City to implement a separate ordinance will commence until this Ordinance is effective.
Ordinance No. 2507-16 -6-
8.3 Terms Defined. For the purpose of this Section 8, the following definitions apply:
8.3.1 "Customer Class" shall refer to the classes listed on the Fee Schedule and as
defined or determined in Company's gas tariffs on file with the Commission.
8.3.2 "Fee Schedule" refers to the schedule in the fee ordinance 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 gas
tariffs after the effective date of this franchise agreement.
8.4 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 gas 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 gas service in excess of the amounts specifically permitted by this
Section 8. 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 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 by
the City at reasonable times provided that the City and its designated representative agree in writing
not to disclose any information which would indicate the amount paid by any identifiable customer
or customers or any other information regarding identified customers.
8.5 Equivalent Fee Requirement. The separate ordinance imposing the fee shall not be
effective against Company unless it lawfully imposes and the City monthly 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, or by
comparing, as to similar customers 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 rum machinery and appliances, but shall
not apply to energy sales for the purpose of providing fuel for vehicles. If the Company specifically
consents in writing to a franchise or separate ordinance collecting or failing to collect a fee from
another energy supplier in contravention of this Section 8.5, the foregoing conditions will be waived
to the extent of such written consent.
8.6 City Fees. Company shall be responsible for all permit or other fees imposed by the
City for work conducted pursuant to this franchise.
SECTION 9. PROVISIONS OF ORDINANCE.
9.1 Severabilitv. 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. Where a provision of any other
City ordinance conflicts with the provisions of this Ordinance, the provisions of this Ordinance
shall prevail.
Ordinance No, 2507-16 -7-
9.2 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 10. AMENDMENT PROCEDURE.
Either party to this franchise agreement may at any time propose that the agreement be
amended to address a subject of concern and the other party will consider whether it agrees that the
amendment is mutually appropriate. If an amendment is agreed upon, 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 within 90 days after the date of final passage by the
City of the amendatory ordinance.
SECTION 11. PREVIOUS FRANCHISES SUPERSEDED.
This franchise supersedes any previous gas franchise granted to Company or its predecessor.
SECTION 12. EFFECTIVE DATE; WRITTEN ACCEPTANCE.
Attest:
This franchise shall be in force and effect from and after passage of this Ordinance, its
cc by Company, and its publication as required by law. The City Council may revoke this
lee f Company does not file a written acceptance with the City within 90 days after publication.
by the City Council September 19, 2016
as to Form and Execution:
AA
-
07ee4��'
Mchss t Kenned , Cit Clerk Soren Mattick, City Attorney
CenterPoint Energy Resources Corp., d/b/a
CenterPoint Energy Minnesota Gas
By \-
Subscrib94 and sworn to before me
this _,-;C9 day of p 120
=KATHLENIMONSON .:blicNotary Public taxpires017
AFFIDAVIT OF PUBLICATION
STATE OF MINNESOTA ) ss
COUNTY OF HENNEPIN
Charlene Vold being duly sworn on an oath,
states or affirms that he/she is the Publisher's
Designated Agent of the newspaper(s) known
as:
SS St Louis Park
with the known office of issue being located.
in the county of,
HENNEPIN
with additional circulation in the counties of:
HENNEPIN
and has full knowledge of the facts stated
below:
(A) The newspaper has complied with all of
the requirements constituting qualifim-
tion as a qualified newspaper as provided
by Minn. Stat. §331A.02.
(B) This Public Notice was printed and pub-
lished in said newspaper(s) once each
week, for 1 successive week(s); the first
insertion being on 09/29/2016 and the last
insertion being on 09/29/2016.
MORTGAGE FORECLOSURE NOTICES
Pursuant to Minnesota Stat. §580.033
relating to the publication of mortgage
foreclosure notices: The newspaper complies
with the conditions described in §580.033,
subd. 1, clause (1) or (2). If the newspaper's
known office of issue is located in a county
Ijoining the county where the mortgaged
premises or some part of the mortgaged
premises described in the notice are located,
a substantial portion of the newspaper's
circulation is in the latter county.
By:y Cj
Designated Agent
Subscribed and sworn to or affirmed before
me on 09/29/2016 by Charlene Vold.
L .i . R�/L 1
MARLENE M. MITCHELLIcvNotary Publio-Minnesota My Commisslon Expires Jen 31, 2020
Rate Information:
Lowest classified rate paid by commercial users
,r comparable space:
$68.50 per column inch
Ad ID 601500
CITY OF SL LOUIS PARK
SUMMARY ORDINANCE
NO. 2507-16
ORDINANCE GRANTING
A NATURAL GAS
UTILITY FRANCHISE TO
CENTERPOINT ENERGY
RESOURCES CORPORATION
This ordinance states that St.
Louis Park City Council has given
CenterPoint Energy the right to
transmit and furnish gas energy
for light, heat, power and other
purposes 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 Gas Facilities
in, on, over, under and across the
Public Grounds and Public Ways
of City, subject to the provisions of
this franchise.
This ordinance shall take effect
15 days ager publication.
Adopted by the City Council.
September 19, 2016
/s/Jake Spano,
Mayor
Published in the
SL Louis Park Sun Sailor
September 29, 2016
601500
RECEIUru
3 20%
OFFICE OF THE CITY GlE{?