HomeMy WebLinkAbout0860CITY OF LAKEVILLE, DAKOTA COUNTY, MINNESOTA
ORDINANCE NO. 860
GAS FRANCHISE ORDINANCE CENTERPOINT ENERGY
AN 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 A GAS DISTRIBUTION
SYTEM INCLUDING NECESSARY GAS MAINS, PIPES AND EQUIPMENT FOR
THE TRANSPORTATION, DISTRIBUTION AND SALE OF GAS 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 LAKEVILLE ORDAINS:
SECTION 1. DEFINITIONS. For purposes of this Ordinance, the following
capitalized terms shall have the following meanings:
1.1. City. The City of Lakeville, County of Dakota, State of Minnesota.
1.2. City Utility System. Facilities used for providing public utility service owned or
operated by the City or agency thereof.
1.3. Commission. The Minnesota Public Utilities Commission, or any successor agency
or agencies, including an agency of the federal government that preempts all or part
of the authority to regulate gas retail rates now vested in the Commission.
1.4. Company. CenterPoint Energy Resources Corp., d /b /a CenterPoint Energy
Minnesota Gas "CenterPoint Energy its successors and assigns, including
successors to assignees of those portions of the Company that constitute any part or
parts of the Gas Facilities subject to this franchise.
1.5. Effective Date. The date on which the ordinance becomes effective under Section
2.2.
1.6. Gas. Natural gas, manufactured gas, mixture of natural gas and manufactured gas or
other forms of gas energy.
1.7. 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, but not including any gas manufacturing, processing or storage facilities.
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1.8. Notice. A writing served by a party or parties on another party or parties. Notice to
Company must be mailed to:
CenterPoint Energy
Minnesota Division Vice President
800 LaSalle Avenue
Minneapolis, MN 55402
Notice to City must be mailed to:
City of Lakeville
20195 Holyoke Avenue
Lakeville, Minnesota 55044 -8339
1.9. Public Way. Any street, alley or other public right -of -way within the City as
defined in Minn Stat. 237.162, Subd. 3.
1.10.Public Ground. Land owned or otherwise controlled by the City for parks, open
space or other public purposes, which is held for use in common by the public.
SECTION 2. FRANCHISE.
2.1 Grant of Franchise. The City grants the Company, for a period of twenty (20) years
from the Effective Date, the right to import, transport, distribute and sell Gas for
public and private use within and through the limits of the City. This right includes
the provision of Gas that is (i) manufactured by the Company or its affiliates and
delivered by the Company, (ii) purchased and delivered by the Company or (iii)
purchased from another source by the retail customer and delivered by the Company.
For these purposes, the Company may construct, operate, repair and maintain Gas
Facilities in, on, over, under and across the Public Way and Public Ground subject to
the provisions of state law, this ordinance and to provisions of other city right -of -way
ordinances including permit and fee requirements, as the same may be amended,
supplemented or replaced. The Company shall be notified sixty (60) days in advance
of any adoption of, or proposed changes to, any City ordinance regulating its Public
Ways or modifying permit or fee requirements of the Company. The service to be
provided and the rates to be charged by Company for gas service in the City are
subject to the jurisdiction of the Commission.
2.2 Effective Date. This franchise is effective upon passage and publication as required
by law and its acceptance by the Company. Written acceptance or rejection of the
franchise by the Company must be filed with the City Clerk within sixty (60) days
after written submission of a draft of this ordinance to the Company.
2.3 Non exclusive Franchise. This ordinance does not grant an exclusive franchise.
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2.4 Legal Fees. Each party is responsible for its own legal fees incurred related to
granting of this franchise.
2.5 Publication Expense. The expense of publication of this ordinance must be paid by
the Company.
2.6 Default: Dispute Resolution. If the City or Company asserts that the other party is
in default in the performance of any obligation hereunder, the complaining party
must notify the other party in writing of the default and the desired remedy.
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 after service of the notice, the parties may jointly select a mediator to facilitate
further discussion. The parties will equally share the fees and expenses of the
mediator. If a mediator is not used or if the parties are unable to resolve the dispute
within thirty (30) days after first meeting with the 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.
2.7 Continuation of Franchise. If this franchise expires and the City and the Company
are unable to agree on the terms of a new franchise, the existing franchise will
remain in effect until a new franchise is agreed upon, or until ninety (90) days after
the City or the Company serves written Notice to the other party of their intention to
allow the franchise agreement to expire.
SECTION 3. CONDITIONS OF USE.
3.1 Location of Facilities. Gas Facilities must be located, constructed, installed and
maintained so as not to interfere with the City Utility System or the safety and
convenience of ordinary travel along and over Public Ways. The Company is not
required to use Public Grounds or Public Ways exclusively for the location of its
Gas Facilities, but is subject to all other police power regulations for other
locations within the City. Gas Facilities may be located on Public Grounds as
determined by the City. The Company's construction, reconstruction, operation,
repair, maintenance and location of Gas Facilities is subject to any permit
requirements and other reasonable regulations required by other ordinances and
regulations of the City.
3.2 Field Location. Upon request by the City, the Company must provide field
locations for any of its Gas Facilities within the period of time required by
Minnesota State Statute 216D.
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Subject to the Homeland Security Act or other applicable laws protecting
confidential or proprietary information, the Company must promptly provide
mapping information for any of its underground Gas Facilities and shall otherwise
in all respects comply with Minnesota rules Parts 7819.4000 and 7819.4100.
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3.3 Permit Required. The Company may not open or disturb the surface of any
Public Way or Public Ground without first having obtained a permit from the City,
for which the City may impose a reasonable fee irrespective of any franchise fee
imposed pursuant to Section 7. Company will comply with all permit conditions
established by the City. The permit conditions and fees imposed on the Company
may not be more burdensome than those imposed on other utilities for similar
facilities or work, however, when establishing permit fees, the City may take into
account the renewal dates of existing franchises and whether the Company is also
paying a franchise fee to the City. The 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 Gas Facilities and (ii) the
Company gives notice to the City before, if possible, commencement of the
emergency repair. Within two (2) business days after commencing the repair, the
Company must apply for any required permits and pay the required fees. Except in
the case of emergency work, work undertaken without a permit by the Company or
its agents shall be subject at the discretion of the City to a penalty in the amount of
twice the established permit fees in addition to any other remedy or penalty
specified or allowed in City Code or State Rules.
3.4 Restoration. After completing work requiring the opening of a Public Way or
Public Ground, the Company must restore the same, including paving and its
foundation, to the condition specified in the permit which must not be inconsistent
with Minnesota Rules 7819.1100, and maintain the restored areas in good condition
for one (1) year thereafter. The work must be completed as promptly as weather
permits. If the Company does not promptly perform and complete the work,
remove all dirt, rubbish, equipment and material, and restore the Public Way or
Public Ground, the City may, after demand to the Company to cure and the passage
of a reasonable period of time not less than five calendar days following the
demand, make the restoration at the expense of the Company. The Company must
pay to the City the cost of such work done for or performed by the City, including
administrative expense and overhead. This remedy is in addition to any other
remedies available to the City for noncompliance with this section. In all other
aspects, Company shall comply with the terms of Minnesota Rules 7819.1100 for
restoration of Public Ways and Grounds, and Minnesota Rules 7819.3000 and
7819.0100.
3.5 Company Protection of Gas Facilities in Public Ways. The Company must take
reasonable measures to prevent the Gas Facilities from causing damage to persons or
property. The Company must take reasonable measures to protect the Gas Facilities
from damage that could be inflicted on the Facilities by persons, property or the
elements. The Company and the City will comply with all applicable laws and codes
when performing work near the Gas Facilities.
3.6 Notice of Improvements. The City must give the Company reasonable notice of
plans for improvements to Public Ways or Public Ground where the City has reason
to believe that Gas Facilities may affect or be affected by the improvements. The
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notice must contain; (i) the nature and character of the improvements, (ii) the
Public Ways or Public Grounds 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 Way or Public Ground is involved, the order in which
the work is to proceed. The notice must be given to the Company a sufficient
length of time in advance of the actual commencement of the work to permit the
Company to make any necessary additions, alterations, or repairs to its Gas
Facilities.
SECTION 4. RELOCATIONS.
4.1. Relocation of Gas Facilities._Relocation of Gas Facilities in Public Ways shall be
subject to Minnesota Rules, part 7819 -3100 and any applicable City right -of -way
ordinances consistent with law.
The City may require the Company at Company's expense to relocate or remove its
Gas Facilities from Public Grounds upon a finding that the Gas Facilities have
become or will become a substantial impairment to the existing or imminent public
use of the Grounds.
4.2 Vacation of Public Ways. The City must give the Company at least two weeks
written Notice of the proposed vacation of a Public Way. The City and the Company
shall comply with Minnesota Statute §160.29 and Minnesota Rules, 7819 -3200 and
applicable right -of -way City ordinances consistent with law.
4.3 Projects with Federal Funding. Relocation, removal or rearrangement of any Gas
Facilities made necessary because of the extension into or through the City of a
federally -aided highway project shall be governed by the provisions of Minnesota
Statutes, Section 161.46 if funds for these purposes are available.
SECTION 5. DEFENSE AND INDEMNIFICATION.
5.1 Terms. The Company shall indemnify, keep and hold the City, its elected officials,
officers, employees, and agents free and harmless from any and all claims and actions
on account of injury or death of persons or damage to property occasioned by the
construction, maintenance, repair, removal, on or across the Public Ways and the
Public Grounds. The City will not be indemnified for losses or claims alleged to be
the result of negligence of the City, its elected officials, employees, officers, or
agents, except for those arising out of the issuance of permits for, or inspection of the
Company's plans or work. The City shall not be entitled to reimbursement for its
costs incurred prior to notification to the Company of claims or actions and a
reasonable opportunity for the Company to accept and undertake the defense.
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5.2 Litigation. If such a suit is brought against the City under circumstances where the
agreement in this Section 5 to indemnify applies, the Company at its sole cost and
expense will defend the City in such suit if Notice thereof is promptly given to the
Company within a reasonable period. If the Company is required to indemnify and
defend, it will thereafter have control of such litigation, but the Company may not
settle such litigation without the consent of the City, which consent will 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 the Company, in defending any
action on behalf of the City is entitled to assert in any action every defense or
immunity that the City could assert in its own behalf.
SECTION 6. SUCCESSORS IN INTEREST.
6.1 This ordinance and the rights and obligations conferred hereby, is binding on and
inures to the benefit of the City and its successors and on the Company and its
successors and permitted assigns.
SECTION 7. FRANCHISE FEE.
7.1 Separate Ordinance. The City reserves all rights under Minnesota Statutes,
§216B.36, §301B.01 or other law to require a franchise fee at any time during the
term of this franchise. The franchise fee must be imposed by a separate ordinance
adopted by the City Council, which ordinance may not be adopted until at least sixty
(60) days after Notice enclosing such proposed ordinance has been served upon the
Company by certified mail. The franchise fee will be based on gross revenues, a
specified meter fee schedule or other mutually agreeable formula not to exceed 5%
of gross revenues. The franchise fees established by the City will not be materially
different than franchise fees imposed by the City on other energy franchises. A fee
imposed under this section does not become effective until sixty (60) days after
Notice enclosing the adopted ordinance has been served upon the Company by
certified mail.
SECTION 8. LIMITATION ON APPLICABILITY.
8.1 Limitation on Applicability. This Ordinance constitutes a franchise agreement
between the City and the Company. No provision of this franchise inures 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 for any person not a party
hereto.
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SECTION 9. PREVIOUS FRANCHISES SUPERSEDED.
9.1 Previous Franchises superseded. This franchise supersedes and replaces previous
franchises granted to the Company or its predecessors, including but not limited to
Ordinance Number 83 -03.
SECTION 10. AMENDMENTS.
10.1 Amendments. 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 provision of the amendment,
which amendatory ordinance shall become effective upon the filing of the
Company's written consent thereto with the City Clerk within 60 days after the
effective date of the amendatory ordinance.
SECTION 11. SEVERABILITY.
11.1 Severability. If any portion of this franchise is found unenforceable for any reason,
the validity of the remaining provisions will not be affected.
Adopted this 19th day of October, 2009 by the City Council of the City of Lakeville,
Minnesota.
A'TES
Charlene Friedges, City
IJY OF LA a' ILLE
Ati
f Da r
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RECITALS:
1. At a regular meeting of the City Council of the City of Lakeville held on October 19,
2009, a franchise ordinance entitled Ordinance Number 860 was duly passed by the City
Council.
2. The franchise ordinance was duly approved by Holly Dahl, Mayor of the City of
Lakeville, on October 19, 2009, and was duly published in Thisweek Farmington /Lakeville, the
official newspaper of the City of Lakeville, on October 23, 2009.
3. Section 2.2 of the franchise ordinance provides for written acceptance by CenterPoint
Energy Resources Corp., d/b /a CenterPoint Energy Minnesota Gas "CenterPoint Energy to
be filed with the City Clerk within 60 days after publication.
4. It is the purpose of this instrument to effect a due and sufficient acceptance of the
franchise ordinance.
ACCEPTANCE:
CenterPoint Energy Resources Corp., d /b /a CenterPoint Energy Minnesota Gas
"CenterPoint Energy for itself, its successors and assigns, accepts the franchise ordinance
referred to in Recital 1 upon the terms and conditions contained therein.
v..
Executed this '1 day of 2009.
CenterPoint En eraY
By:
The fore oin
David Baker
Regional Vice President
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)ss
KATHLEEN M SIMONSON
Notary Public -State of Minnesota
My Commission Expires
January 31, 2012
ny
I s ru
CenterPoint Energy
Acceptance of Ordinance
owledged before me this day of 'p 009.
lM l.)- 0L-4--.
Notary Public
The above acceptance was duly filed with the City of Lakeville e office of the City Clerk on
December 17 2009.
City Clerk
City of Lakeville
AN ORDINANCE GRANTING A GAS FRANCHISE
TO CENTERPOINT ENERGY
This ordinance grants a non exclusive franchise to construct and operate facilities
and equipment for the transportation, distribution, and sale of gas and to use public ways
and public ground for such purpose. The term of the franchise is twenty (20) years. The
franchise ordinance specifies the terms under which the company may use city rights of
way and public grounds to deliver gas service to residents, businesses and others within
the City and contains the following sections: Definitions, Franchise, Conditions of Use,
Relocations, Defense and Indemnification, Successors in Interest, Franchise Fee,
Limitation on Applicability, Previous Franchise Superseded, Amendments, and
Severability.
A printed copy of the entire ordinance is available for inspection by any person
during the City Clerk's regular office hours.
Approved for publication by the City Council of the City of Lakeville, Minnesota,
this 19 day of October, 2009.
TEST:
Charlene Friedges, Cit Jerk
SUMMARY ORDINANCE NO. 860
CITY OF LAKEVILLE
DAKOTA COUNTY, MINNESOTA
CITY I F LAKEVILLE
PUBLIC NOTICE
SUMMARY ORDINANCE NO. 860
CITY OF LAKEVILLE
DAKOTA COUNTY, MINNESOTA
AN ORDINANCE GRANTING
A GAS FRANCHISE
TO CENTERPOINT ENERGY
This ordinance grants a non-exclusive
franchise to construct and operate facilities
and equipment for the transportation, dis-
tribution, and sale of gas and to use public
ways and public ground for such purpose.
The term of the franchise is twenty (20)
years. The franchise ordinance specifies
the terms under which the company may
use city rights of way and public grounds to
deliver gas service to residents, businesses
and others within the City and contains the
following sections: Definitions, Franchise,
Conditions of Use, Relocations, Defense
and Indemnification, Successors in Interest,
Franchise Fee, Limitation on Applicability,
Previous Franchise Superseded, Amend-
ments, and Severability.
A printed copy of the entire ordinance is
available for inspection by any person dur-
ing the City Clerk's regular office hours.
Approved for publication by the City
Council of the City of Lakeville, Minnesota,
this 19th day of October, 2009.
CITY OF LAKEVILLE
BY: Holly Dahl, Mayor
ATTEST:
Charlene Friedges, City Clerk
1950519 10/23/09
AFFIDAVIT OF PUBLICATION
STATE OF MINNESOTA )
COUNTY OF DAKOTA )
SS
Tad Johnson, being d ly sworn on oath says that he is the managing editor of the
newspaper(s) known as Th. week Farmington/Lakeville, and has full knowledge of the facts
which are stated below:
(A) The newspaper(s) has(have) complied with all of the requirements constituting
qualifications as a legal n wspaper(s), as provided by Minnesota Statue 331A.02, 331A.07
and other applicable laws, as
mended.
(B) The printed legal notice, which is attached was cut from the columns of said
newspaper(s) and was printed and published once a week for one week; it was first
published on Friday, the 23 d day of October, 2009, and was therefore printed and published
on every Friday to and incl ding Friday, the 23rd day of October, 2009, and printed below is
a copy of the lower case al habet from A to Z, both inclusive, which is hereby acknowledged
as being the size and kind of pe used in the composition and publication of the notice
abcdcfglujklmnopgrswvwxy z
Subscribed and sworn to befo me on
this 23rd day of October, 200
Notary Public
Kara Elizabeth Shimota
Notary Public
Minnesota
I. Commission Expi:'s January 31, 2012
Managing Editor
1950519