Blaine City Zoning Code
Appendix C
FRANCHISES
ARTICLE I. - NATURAL GAS FRANCHISE (MINNEGASCO COMPANY)[1]
The City of Blaine does ordain:
Editor's note— Ord. No. 21-2478, adopted Aug. 16, 2021, repealed the former Art. I, §§ 1—11, and enacted a new Art. I as set out herein. The former Art. I pertained to similar subject matter and derived from Ord. No. 98-1697, adopted March 5, 1998. Amendments are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Obvious misspellings and punctuation errors have been corrected without notation. For stylistic purposes, headings and catchlines have been made uniform, and the same system of capitalization, citation to state statutes, and expression of numbers in text as appears in the Code of Ordinances has been used. Additions made for clarity are indicated by brackets.
ARTICLE III. - NATURAL GAS FRANCHISE (CITY OF CIRCLE PINES)[4]
Amending Appendix C of the Code of Ordinances, Natural Gas Franchise, (City of Circle Pines) granting to the city of Circle Pines, a municipal corporation, 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 and to use the public grounds and public ways of the city for such purposes.
The City of Blaine does ordain:
Editor's note— Printed in this article is Ord. No. 18-2401, adopted March 15, 2018, which superseded and replaced Ord. No. 98-1711, adopted May 21, 1998. Amendments are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Obvious misspellings and punctuation errors have been corrected without notation. For stylistic purposes, headings and catchlines have been made uniform, and the same system of capitalization, citations to state statutes, and expression of numbers in text as appears in the Code of Ordinances has been used. Additions made for clarity are indicated by brackets.
ARTICLE IV. - NATURAL GAS FRANCHISE (NORTHERN STATES POWER COMPANY)[5]
Ord. No. 98-1710
Amending Appendix C of the Code of Ordinances, Natural Gas Franchise (Northern States Power Co.) granting to Northern States Power Company, a Minnesota corporation, 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 Blaine does ordain:
Editor's note— Printed in this article is Ord. No. 98-1710, adopted May 21, 1998. Amendments are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Obvious misspellings and punctuation errors have been corrected without notation. For stylistic purposes, headings and catchlines have been made uniform, and the same system of capitalization, citations to state statutes, and expression of numbers in text as appears in the Code of Ordinances has been used. Additions made for clarity are indicated by brackets.
ARTICLE V. - ELECTRIC DISTRIBUTION SYSTEM AND TRANSMISSION LINES (ANOKA ELECTRIC COOPERATIVE)[6]
Ord. No. 98-1698
An ordinance granting to Anoka Electric Cooperative, a Minnesota corporation, its successors and assigns, permission to construct, operate, repair and maintain in the City of Blaine, 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 ways and public grounds of the city for such purposes.
The City of Blaine does ordain:
Editor's note— Printed in this article is Ord. No. 98-1698, adopted March 5, 1998. Amendments are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Obvious misspellings and punctuation errors have been corrected without notation. For stylistic purposes, headings and catchlines have been made uniform, and the same system of capitalization, citations to state statutes, and expression of numbers in text as appears in the Code of Ordinances has been used. Additions made for clarity are indicated by brackets.
ARTICLE VI. - ELECTRIC DISTRIBUTION SYSTEM AND TRANSMISSION LINES (NORTHERN STATES POWER COMPANY)[7]
Ord. No. 98-1699
An ordinance granting to Northern States Power Company, a Minnesota corporation, its successors and assigns, permission to construct, operate, repair and maintain in the city of Blaine, 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 ways and public grounds of the city for such purposes.
The City of Blaine does ordain:
Editor's note— Printed in this article is Ord. No. 98-1699, adopted March 5, 1998. Amendments are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Obvious misspellings and punctuation errors have been corrected without notation. For stylistic purposes, headings and catchlines have been made uniform, and the same system of capitalization, citations to state statutes, and expression of numbers in text as appears in the Code of Ordinances has been used. Additions made for clarity are indicated by brackets.
Sec. 1. - Definitions.
For purposes of this ordinance, the following capitalized terms listed in alphabetical order shall have the following meanings:
City. The City of Blaine, County of Anoka, State of Minnesota.
City utility system. Facilities used for providing 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.
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.
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.
Gas energy. Gas energy includes both retail and wholesale natural, manufactured or mixed gas.
Gas facilities. Gas transmission and distribution pipes, lines, ducts, fixtures, and all necessary equipment and appurtenances owned or operated by the company for the purpose of providing gas energy for retail or wholesale use.
Notice. A writing served by any party or parties on any other party or parties. 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 of Blaine, City Manager, 10801 Town Square Drive NE, Blaine, Minnesota 55449. Any party may change its respective address for the purpose of this article by written notice to the other parties.
Ordinance. This gas franchise ordinance, also referred to as the franchise.
Public ground. Land owned or otherwise controlled by the city for utility easements, park, trail, walkway, open space or other public property, which is held for use in common by the public or for public benefit.
Public way. Any public right-of-way within the city as defined by M.S.A. § 237.162, subd. 3.
(Ord. No. 21-2478, 8-16-2021)
Sec. 2. - Adoption of franchise.
2.1.
Grant of franchise. City hereby grants company, for a period of 20 years from the date this article is passed and approved by the city, the right to import, manufacture, distribute and sell gas energy 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 and also the right to transport gas energy through the limits of the city for use outside of the city limits. For these purposes, company may construct, operate, repair and maintain gas facilities in, on, over, under and across the public ways and public grounds, subject to the provisions of this article. 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 an ordinance or permit requirements adopted consistent with state law.
2.2.
Effective date; written acceptance. This franchise shall be in force and effect from and after the passage of this article and publication as required by law and its acceptance in writing by company.
2.3.
Service and gas rates. The terms and conditions of service and the rates to be charged by company for gas energy in city are subject to the exclusive jurisdiction of the commission.
2.4.
Publication expense. Company shall pay the expense of publication of this article.
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 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.
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.
(Ord. No. 21-2478, 8-16-2021)
Sec. 3. - Location, other regulations.
3.1.
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. Gas facilities may be located on public grounds as determined by the city. The location and relocation of gas facilities shall be subject to 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.
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, unless the city is receiving a franchise fee pursuant to this article, in which case all permit fees will be waived. Permit conditions imposed on company shall not be more burdensome than those imposed on other public right-of-way users 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 gas facilities and (ii) company gives telephone, email or similar notice to the city before commencement of the emergency repair, if reasonably possible. 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 or public ground, the company shall restore the public ways or public grounds in accordance with Minn. R. 7819.1100. Company shall restore the public ground to as good a condition as formerly existed, and shall maintain the surface in good condition for six months thereafter. All work shall be completed as promptly as weather permits, and if company shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the public ground in the said condition, the city shall have, after demand to company to cure and the passage of a reasonable period of time following the demand, but not to exceed five days, the right to make the restoration of the public ways or public grounds at the expense of company. Company shall pay to the city the cost of such work done for or performed by the city. The company shall not be required to post a construction performance bond.
3.4.
Avoid damage to gas facilities. 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 gas facilities by persons, property, or the elements. Company must take protective measures when the city performs work near the gas facilities, if given reasonable notice by the city of such work prior to its commencement.
3.5.
Notice of improvements to streets. The city will give company reasonable written notice of plans for improvements to public ways and public grounds where the city has reason to believe that gas facilities may affect or be affected by the improvement. The notice will 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 grounds is involved, the order in which the work is to proceed. The notice will 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 gas facilities the company deems necessary.
3.6.
Mapping information. If requested by city, the company must promptly provide complete and accurate mapping information for any of its gas facilities in accordance with the requirements of Minn. R. 7819.4000 and 7819.4100.
(Ord. No. 21-2478, 8-16-2021)
Sec. 4. - Relocations.
4.1.
Relocation in public ways. The company and city shall comply with the provisions of Minn. R. 7819.3100, with respect to requests for the company to relocate gas facilities located in public ways.
4.2.
Relocation in public grounds. City may require company at company's expense to relocate or remove its gas facilities from public grounds 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 grounds. Nothing in this section 4.2 shall be construed so as to invalidate or impair any existing company easements in public grounds.
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 M.S.A. § 161.46.
(Ord. No. 21-2478, 8-16-2021)
Sec. 5. - Indemnification.
5.1.
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 gas facilities located in the public ways and public grounds. The city shall not be indemnified for losses or claims occasioned through its own negligence or otherwise wrongful act or omission 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.
5.2.
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. The 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 M.S.A. ch. 466.
(Ord. No. 21-2478, 8-16-2021)
Sec. 6. - Vacation of public ways and public grounds.
The city shall give company at least two weeks prior written notice of a proposed vacation of a public ways or public grounds. The city and the company shall comply with Minn. R. 7819.3200 with respect to any request for vacation.
(Ord. No. 21-2478, 8-16-2021)
Sec. 7. - Relocations.
Any change in the form of government of the city shall not affect the validity of this article. 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 article.
(Ord. No. 21-2478, 8-16-2021)
Sec. 8. - Franchise fee.
8.1.
Form. During the term of the franchise hereby granted, the city may charge the company a franchise fee. The company will administer the collection and payment of franchise fees to city in lieu of permit fees or other fees that may otherwise be imposed on the company in relation to its operations as a public utility in the city. The franchise fee will be collected on a flat fee basis, or by some other method that is mutually acceptable to both city and company for each retail customer account within the corporate limits of the city. The amount of the fee collected may differ for each customer class. The city will use a formula that provides a stable and predictable amount of fees, without placing the company at a competitive disadvantage. Such fee shall not exceed any amount that the company may legally charge to its customers prior to payment to the city and be consistent with the Minnesota Public Utility Commission's March 23, 2011, order establishing franchise fee filing requirements in Docket No. E,G999/CI-09-970. If the company claims that the city required fee formula is discriminatory or otherwise places the company at a competitive disadvantage, the company will provide a formula that will produce a substantially similar fee amount to the city. If the city and company are unable to agree, the disagreement shall be subject to the dispute resolution provisions of this article.
8.2.
Separate ordinance. The franchise fee shall be imposed by separate ordinance duly adopted by the city council. The effective date of the franchise fee ordinance shall be no less than 90 days after written notice enclosing a copy of the duly adopted and approved ordinance has been served upon the company by certified mail. The company is not required to collect a franchise fee if the terms of the fee agreement are inconsistent with this franchise or state law, provided the company notifies the city council of the same within the 90-day period.
8.3.
Condition of fee. The separate ordinance imposing the fee shall not be effective against the company unless it lawfully imposes a fee of the same or substantially similar amount on the sale of energy within the city by any other energy supplier, provided that, as to such supplier, the city has the authority or contractual right to require a franchise fee or similar fee through an agreed-upon franchise.
8.4.
Collection of fee. The franchise fee shall be payable not less than quarterly during complete billing months of the period for which payment is to be made. The franchise fee formula may be changed from time to time, however, the change shall meet the same notice and acceptance requirements and the fee may not be changed more often than annually. Such fee shall not exceed any amount that the company may legally charge to its customers prior to payment to the city and be consistent with Minnesota Public Utility Commission's March 23, 2011, order establishing franchise fee filing requirements in Docket No. E,G999/CI-09-970. Such fee is subject to subsequent reductions to account for uncollectibles and customer refunds incurred by the company. The company shall not be responsible to pay city fees that company is unable to collect under commission rules or order. The company agrees to make available for inspection by the city at reasonable times all records necessary to audit the company's determination of the franchise fee payments.
8.5.
Continuation of franchise fee. If this franchise expires and the city and the company are unable to agree upon terms of a new franchise, the franchise fee, if any being imposed by the city at the time this franchise expires, will remain in effect until a new franchise is agreed upon. However, the franchise fee will not remain in effect for more than one year after the franchise expires as stated in section 2.6 of this franchise. If for any reason the franchise terminates, the franchise fee will terminate at the same time.
(Ord. No. 21-2478, 8-16-2021)
Sec. 9. - Abandoned facilities.
The company shall comply with M.S.A. § 216D.01 et seq. and Minn. R. 7819.3300 as they may be amended from time to time. The company shall maintain records describing the exact location of all abandoned and retired gas facilities within the public ways and public grounds, produce such records at the city's request and comply with the location requirements of M.S.A. § 216D.04 with respect to all gas facilities, including abandoned and retired facilities, located in public ways and public grounds.
(Ord. No. 21-2478, 8-16-2021)
Sec. 10. - Provisions of ordinance.
10.1.
Severability. Every section, provision, or part of this article 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 is inconsistent with the provisions of this article, the provisions of this article shall prevail.
10.2.
Limitation on applicability. This article constitutes a franchise agreement between the city and company as the only parties. No provisions herein 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 this article 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.
(Ord. No. 21-2478, 8-16-2021)
Sec. 11. - Limitation on applicability.
Either party may propose at any time that this franchise ordinance be amended. Franchise 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 effective date of the amendatory ordinance.
(Ord. No. 21-2478, 8-16-2021)
DIVISION 1. - GROUP W CABLE OF THE NORTH CENTRAL SUBURBS, INC.[2]
Editor's note— Ord. No. 83-786, adopted Aug. 18, 1983, granting a cable communications franchise to Group W Cable of the North Central Suburbs, Inc., has not been set out at length herein, but is available for public inspection in the city clerk's office. Subsequently Ord. No. 85-919, adopted December 5, 1985, and Ord. No. 98-1739, adopted August 20, 1998, amended Ord. No. 83-786. Ord. No. 02-1957, adopted Nov. 21, 2002, supersedes any previous cable communications franchise agreement, and is available for public inspection in the city clerk's office. Subsequently Ord. No. 15-2304, §§ 1, 2, adopted February 5, 2015, amended Ord. No. 02-1957. Ord. No. 15-2332, adopted December 3, 2015, was treated as adding art. II, div. 2, at the editor's discretion. Inasmuch as art. II did not contain divisions, and for the purposes of clarity, the provisions of art. II have been included here in as art. II div. 1.
DIVISION 2. - QWEST BROADBAND SERVICES, INC., D/B/A CENTURYLINK[3]
Editor's note—Ord. No. 15-2332, adopted December 3, 2015, was not specifically amendatory. Said provisions have been treated as adding art. II, div. 2. To preserve the style of this Code, headings and catchlines have been made uniform, and the same system of capitalization, citations to state statutes, and expression of numbers in text as appears in the Code of Ordinances has been used.
Sec. 1. - Definitions.
1.1.
City. The City of Blaine, county of Anoka, State of Minnesota.
1.2.
City utility system. Facilities used for providing nonenergy related public utility service owned and operated by the city or agency thereof, including sewer and water service, but excluding facilities for providing heating, lighting, or other forms of energy.
1.3.
Company. City of Circle Pines, a municipal corporation, by and through its public utilities commission, its successors, and assigns, including successors and assignees of those portions of the company that constitute any part or parts of the gas facilities subject to this franchise.
1.4.
Effective date. The date on which the ordinance becomes effective under section 2.2.
1.5.
Gas. Natural gas, manufactured gas, mixture of natural gas and manufactured gas or others 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.
Non-betterment cost. Costs incurred by the company from relocation, removal or rearrangement of gas facilities that do not result in an improvement to the facilities.
1.8.
Notice. A writing served by a party or parties on another party or parties. Notice to the company shall be mailed to City Administrator, City of Circle Pines, 200 Civic Heights Circle, Circle Pines, MN 55014. Notice to city shall be mailed to the City Manager, City of Blaine, 10801 Town Square Drive NE, Blaine, MN 55449.
1.9.
Public ways. Any street, alley, or other public right-of-way within the city.
2.0.
Public grounds. Land owned or otherwise controlled by the city for parks, open space or similar public purpose.
Sec. 2. - Franchise.
2.1.
Grant of franchise. The city grants the company, for a period of 20 years from the effective date, the right to import, manufacture, 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 manufactured by the company or its affiliates and delivered by the company, gas purchased and delivered by the company, or purchased from another source by 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 this ordinance. The company may do all things reasonably necessary or customary to accomplish these purposes, subject to other applicable ordinances, permit requirements and further provisions of this ordinance.
2.2.
Effective date. This franchise is effective from and after its acceptance by the company. Written acceptance by the company must be filed with the city clerk within 90 days after publication of this notice.
2.3.
Nonexclusive franchise. This ordinance does not grant an exclusive franchise.
2.4.
Publication expense. The expense of publication of this ordinance must be paid by the company.
2.5.
Default; dispute resolution. If the city or the 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 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 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.
Sec. 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. Gas facilities must 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 other ordinances and regulations of the city.
3.2.
Field locations. Upon request by the city, the company must provide field locations for any of its gas facilities within the period of time required by state law.
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. The permit conditions imposed on the company may not be more burdensome than those imposed on other non-city utilities for similar facilities or work. The company must obtain the permit according to the procedures and requirements stated in Blaine Code, chapter 70, article I, section 70-3. 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. On the next business day after commencing the repair, the company must apply for any required permits and pay the required fees.
3.4.
Restoration. After completing work requiring the opening of a public way of public ground, the company must restore the same, including paving and its foundation, to the condition formerly existing and maintain the same in good condition for two years 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 exceeding 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, plus ten percent of cost and administrative expense. This remedy is in addition to any other remedies available to the city for noncompliance with this section.
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 and 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 must take protective measures when the city performs work near gas facilities, if given reasonable notice by the city of such work prior to its commencement.
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 improvement. The 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. If streets are at a final width and grade and the city has installed underground sewer and water mains and service connections to the property line abutting the streets prior to a permanent paving or resurfacing of such streets, and the company's main is located under such street, the city may require the company to install gas service connections prior to such paving or resurfacing, if it is apparent that gas service will be required during the five years following the paving or resurfacing.
Sec. 4. - Relocation.
4.1.
Relocation of gas facilities in public ways. If the city determines to vacate a public way or public ground for a city improvement project, or to grade, re-grade or change the alignment of any public way or public ground or construct or reconstruct any city utility system in any public way or public ground, the city may order the company to relocate its gas facilities located therein. The company must relocate its gas facilities at its own expense. The city must give the company reasonable notice of plans to vacate for a city improvement project, grade, re-grade, or change the line of any public way or to construct or reconstruct any city utility system. City may order company to relocate permanently its mains, services, and other property located in said public way. If any subsequent relocation is required because of the extension of a city utility system to a previously un-served area, the city may require the company to make the subsequent relocation at its expense. If a relocation is ordered within five years of a prior relocation of the same gas facilities, which was made at company expense, the city shall reimburse the company for non-betterment costs on a time and material basis. Nothing in this ordinance requires the company to relocate, remove, replace or reconnect its facilities at the company's expense 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. The city may require the company, at the company's expense, to relocate gas facilities within or remove gas facilities from public ground upon a finding by city that the gas facilities have become or will become a substantial impairment of the public use or enjoyment to which the public ground is or will be put. The provisions of this section 4.2 apply only to gas facilities constructed in reliance on this franchise and the company does not waive its rights under an easement or prescriptive right in the public ground.
4.3.
Vacation of public ways. The city must give the company at least two weeks' notice of a proposed vacation of a public way. Except where required for a city street or other improvement project, or other improvement project or as otherwise provided in section 4.2, the vacation of a public way, after the installation of gas facilities, does not deprive the company of its rights to operate and maintain the gas facilities, until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are first paid to company by the city. The city is not liable to the company for failure to specifically preserve a right-of-way in the manner permitted by law.
4.4.
Project with state or 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 M.S.A. § 161.46.
Sec. 5. - Defense and indemnification.
5.1.
Terms. The company will defend, indemnify, keep, and hold the city free and harmless from any and all liability on account of injury to persons or damage to property caused by the construction, maintenance, operation, repair, inspection, or issuance of permits relating to the gas facilities. The city will not be indemnified by the company for losses or claims in which the city is determined to be negligent, except for losses or claims arising out of or alleging the city's negligence as to the issuance of permits for, or inspection of, the company's plans or work. The city will not be indemnified if the injury or damage results from the performance in a proper manner of acts reasonably deemed hazardous by the company, and such performance is nevertheless ordered or directed by the city after notice to the city of the company's determination. The city will not indemnify the company nor contribute towards costs, fees or damages incurred by the company, arising out of claims by third parties against the company.
5.2.
Litigation. If a suit is brought against the city under circumstances where the agreement in 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.
Sec. 6. - Successors in interest.
This ordinance and the rights and obligations conferred hereby, is binding on and inures to the benefit of the city and its successors and permitted assigns. This ordinance and the franchise it confers may not be assigned by the company without the written consent of the city.
Sec. 7. - Franchise fee.
7.1.
Separate ordinance. During the term of the franchise hereby granted, and in addition to other fees being imposed or that the city has the right by statute to impose on the company, the city may require a franchise fee to be paid by the company. The franchise fee must be imposed by a separate ordinance by the city council, which ordinance may not be adopted until at least 60 days after notice enclosing such proposed ordinance has been served upon the company by certified mail. A fee imposed under this section does not become effective until 60 days after notice enclosing the adopted ordinance has been served upon the company by certified mail.
7.2.
Calculation of fee. The city may impose the franchise fee: (i) as a percentage of gross revenues received by the company for its operations within the city; or (ii) as a flat fee per customer based on metered service to retail customers within the city or on some other reasonable basis; or (iii) as a fee based on units of gas delivered to any class of retail customers within the corporate limits of the city. The formula for a franchise fee based on units of gas delivered may incorporate both commodity and demand units. The method of imposing the franchise fee, the percent of revenue rate, the flat rate and the per unit rate may differ for each customer class.
7.3.
Collection of the fee. The franchise fee will be payable not less often than quarterly, and based on any of the alternative formulas described in section 7.2 during complete billing months of the period for which payment is to be made. The franchise fee formula may be changed by ordinance from time to time; however, each change must meet the same notice requirements and may not be made more often than annually. The fee may not exceed any amount that the company may legally charge to its customers prior to payment to the city, by imposing a surcharge equivalent to such fee in its rates for gas service. The company may pay the city the fee based upon the surcharge billed subject to subsequent reductions to account for uncollectibles or customer refunds. The company agrees to make available for inspection by the city at reasonable times all records necessary to audit the company's determination of the franchise fee payments.
7.4.
Continuation of franchise fee. If this franchise expires and the city and the company are unable to agree upon terms of a new franchise, the franchise fee, if any, being imposed by the city at the time this franchise expires, will remain in effect until a new franchise is agreed upon.
Sec. 8. - Severability.
If any portion of this franchise is found to be invalid for any reason whatsoever the validity of the remainder will not be affected.
Sec. 9. - Amendment.
This ordinance may be amended at any time by the city. An amendatory ordinance becomes effective upon the filing of the company's written consent thereto.
Sec. 10. - 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.
Sec. 11. - Previous franchise superseded.
This franchise supersedes and replaces any previous gas franchise granted to the company or its predecessor.
Introduced and read this first day of March, 2018.
Passed by the city council of the City of Blaine this 15th day of March, 2018.
Sec. 1. - Definitions.
1.1.
City. The City of Blaine, County of Anoka, State of Minnesota.
1.2.
City utility system. Facilities used for providing nonenergy related public utility service owned and operated by the city or agency thereof, including sewer 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 that preempts all or part of the authority to regulate gas retail rates now vested in the Minnesota Public Utilities Commission.
1.4.
Company. Northern States Power Company, a Minnesota corporation, its successors and assigns.
1.5.
Gas facilities. Gas transmission and distribution pipes, mains, regulators and necessary appurtenances owned, operated or otherwise used by company for the purpose of providing natural gas, manufactured gas or other form of gaseous energy for public use.
1.6.
Non-betterment cost. Costs incurred by company from relocation, removal or rearrangement of gas facilities that do not result in an improvement to the gas facilities.
1.7.
Notice. A writing served by any party or parties on any other party or parties. Notice to company shall be mailed to President, NSP Gas, 825 Rice Street, St. Paul, Minnesota 55117. Notice to the city shall be mailed to the City Manager, City of Blaine, 9150 Central Ave. NE, Blaine, MN 55434. Either party may change its respective address for the purpose of this ordinance by written notice to the other party.
1.8.
Effective date. The date on which the ordinance becomes effective under section 2.2.
1.9.
Public way. Any street, alley, walkway or other public right-of-way within the city.
1.10.
Public ground. Land owned by the city for parks, open space or similar purpose, which is held for use in common by the public.
Sec. 2. - Franchise.
2.1.
Grant of franchise. City grants company, for a period of 20 years from the date of passage of this ordinance, the nonexclusive 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, and under and across the public ways and public grounds of city, subject to the provisions of this ordinance. Company may do all things reasonably necessary or customary to accomplish these purposes, subject however, to such reasonable regulations as may be imposed by the city pursuant to ordinance 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 its passage and acceptance by company, and its publication as required by law. An acceptance by company must be filed with the city clerk 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 shall be paid by the 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 must 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 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 the 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.
Sec. 3. - Location, other regulations.
3.1.
Location of facilities. Gas facilities shall be located, and constructed, 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 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 city's request company removes abandoned metal pipe interfering with a city improvement project if such metal pipe is uncovered as part of the city improvement project.
3.2.
Field locations. Company shall provide field locations for its underground gas facilities within city consistent with the requirements of M.S.A. ch. 216D.
3.3.
Street openings. Company shall not open or disturb the paved surface of any public way or public ground for any purpose without first having obtained permission from the city, for which the city may impose a reasonable fee. Any 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 paved surface of any public way or public ground 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 a public way or public ground, company shall restore the same, including paving and its foundation, 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 the company shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the public way or public ground, in the said condition, the city shall have, after demand to the 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 the company. Company shall pay to the city the cost of such work done for or performed by the city, including its administrative expense and overhead, plus ten percent additional as liquidated damages. This remedy shall be in addition to any other remedies available to the city for noncompliance with this section 3.4.
3.5.
Protection of 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 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 improvement. The 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.
3.7.
Major facilities. Before company constructs any new structure or converts any existing structure for the manufacture or storage of gas, company shall first obtain the approval of the structure and the location thereof with the city. Such approval by the city shall not be unreasonably withheld.
Sec. 4. - Relocation.
4.1.
Relocation of gas facilities in public ways. Except as provided in section 4.4, if the city determines to vacate a public way for a city improvement project, or at city's cost to grade, re-grade or change the line of any public way or construct or reconstruct any city utility system in any public way, city may order the company to relocate its gas facilities located therein if relocation is reasonably necessary to accomplish the city's proposed public improvement. Company shall relocate its gas facilities at its own expense. The city shall give the company reasonable notice of plans to vacate for a city improvement project, or to grade, re-grade, or change the line of any public way or to construct or reconstruct any city utility system. If a relocation is ordered within five years of a prior relocation of the same gas facilities, which was made at company expense, the city shall reimburse company for non-betterment costs on a time and material basis provided that if any 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 the company to relocate, remove, replace or reconstruct its facilities at the company's expense 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. Except as may be provided in section 4.4, 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 of the existing or proposed public use of the public ground.
4.3.
No waiver. The provisions of section 4 apply only to gas facilities constructed in reliance on a franchise and company does not waive its rights under an easement or prescriptive right, or state or county permit.
4.4.
Project 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 M.S.A. § 161.46 as supplemented or amended. It is understood that the right herein granted to company is a valuable right. City shall not order company to remove or relocate its gas facilities when a public way is vacated, improved or realigned because of a renewal or redevelopment plan which is financially subsidized in whole or in part by the federal government or any agency thereof, unless the reasonable non-betterment costs of such relocation and the loss and expense resulting therefrom are first paid to company, but the city need not pay those portions of such for which reimbursement to it is not available.
Sec. 5. - 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 are first paid to company. In no case, however, shall city be liable to company for failure to specifically preserve right-of-way under M.S.A. § 160.29.
Sec. 6. - Indemnification.
6.1.
Indemnity of the 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 ways and public grounds. 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. 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.
6.2.
Defense of the city. In the event a suit is brought against the city under circumstances where this agreement to indemnify applies, the company at its sole cost and expense will defend the city in such suit if written notice thereof is promptly given to the 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 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.
Sec. 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.
Sec. 8. - Franchise fee.
8.1.
Separate ordinance. During the term of the franchise hereby granted, and in lieu of any permit fee or other fees being imposed on company, the city may require a franchise fee to be paid by the company. The franchise fee must be imposed by a separate ordinance adopted by the city council, which ordinance may not be adopted until at least 60 days after notice enclosing such proposed ordinance has been served upon the company by certified mail. A fee imposed under this section does not become effective until at least 60 days after notice enclosing the adopted ordinance has been served upon the company by certified mail.
8.2.
Calculation of fee. The total amount collected annually as a franchise fee shall not exceed what is estimated by company to be two percent of the total annual revenues at the time the fee is to commence less any sales tax and franchise fee, from the sale or delivery of gas energy within the city through meters measuring such gas service. The city may impose the franchise fee: (i) as a percentage of gross revenues received by the company for its operations within the city; or (ii) as a flat fee per customer based on metered service to retail customers within the city or on some other reasonable basis; or (iii) as a fee based on units of gas delivered to any class of retail customers within the corporate limits of the city. The formula for a franchise fee based on units of gas delivered may incorporate both commodity and demand units. The method of imposing the franchise fee, the percent of revenue rate, the flat rate and the per unit rate may differ for each customer class to the extent that the total annual franchise fee amount estimated by company to be collected from any non-residential customer class shall not, as a percentage of the total revenues estimated by company, less any sales tax and franchise fee from said non-residential customer class, exceed the percentage estimated by company to be collected from the residential customer class.
8.3.
Collection of the fee. The franchise fee will be payable quarterly, and based on any of the alternative formulas described in section 8.2 during complete billing months of the period for which payment is to be made. The franchise fee formula may be changed by ordinance from time to time; however, each change must meet the same notice requirements and may not be made more often than annually. The fee may not exceed any amount that the company may legally charge to its customers prior to payment to the city, by imposing a surcharge equivalent to such fee in its rates for gas service. The company may pay the city the fee based upon the surcharge billed subject to subsequent reductions to account for uncollectibles or customer refunds. The time and manner of collecting the franchise fee is subject to the approval of the public utilities commission, which the company agrees to use best efforts to obtain. The company agrees to make available for inspection by the city at reasonable times all records necessary to audit the company's determination of the franchise fee payments.
Sec. 9. - Provisions of ordinance.
9.1.
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. Where a provision of any other city ordinance conflicts with the provisions of this ordinance, the provisions of this ordinance shall prevail.
9.2.
Limitation on applicability. This ordinance constitutes a franchise agreement between the city and the 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.
Sec. 10. - Amendment.
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 the company's written consent thereto with the city clerk within 90 days after the effective date of the amendatory ordinance.
Introduced and read in full this 16th day of April, 1998.
Passed by the Blaine City Council this 21st day of May, 1998.
Attest:
Sec. 1. - Definitions.
1.1.
City. The City of Blaine, County of Anoka, State of Minnesota.
1.2.
City utility system. Facilities used for providing nonenergy related public utility service owned or operated by the city or agency thereof, including sewer 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 that preempts all or part of that authority to regulate electric retail rates now vested in the Minnesota Public Utilities Commission.
1.4.
Company. Anoka Electric Cooperative, a Minnesota corporation, its successors, and assignees of that portion of the company that constitutes any part of the electric facilities subject to the franchise.
1.5.
Electric facilities. Electric transmission and distribution substations, towers, poles, lines, guys, anchors, conduits, fixtures, and necessary appurtenances owned, operated or otherwise used by the company for the purpose of providing electric energy for public use.
1.6.
Notice. A writing served by any party or parties on any other party or parties. Notice to the company shall be mailed to the President and CEO, Anoka Electric Cooperative, 14601 Ramsey Blvd., Ramsey, MN 55303. Notice to city shall be mailed to the City Manager, City of Blaine, 9150 Central Ave. NE, Blaine, MN 55434. Either party may change its respective address for the purpose of this ordinance by written notice to the other party.
1.7.
Effective date. The date on which the ordinance becomes effective under section 2.2.
1.8.
Public ways. Any street, alley, or other public rights-of-way within the city.
1.9.
Public grounds. Land owned by the city for parks, open space or similar purpose, which is held for use in common by the public.
Sec. 2. - Franchise.
2.1.
Grant of franchise. The city grants the company, for a period of 20 years from the effective date, the right to transmit and furnish electric 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. This right includes electric energy that is (i) generated and delivered by the company, (ii) generated by others and purchased and delivered by the company, or (iii) generated by others, purchased from others by the retail customer and delivered by the company. For these purposes, the company may construct, operate, repair and maintain electric facilities in, on, over, under and across the public ways and public grounds subject to the provisions of this ordinance. Company may do all things reasonably necessary or customary to accomplish these purposes, subject to other applicable ordinances, permit procedures, and to the further provisions of this ordinance.
2.2.
Effective date; written acceptance. This franchise shall be effective from and after its acceptance by the company. Written acceptance by the company must be filed with the city clerk within 90 days after publication of this ordinance.
2.3.
Service rates and area. The service to be provided and the rates to be charged by company for electric service in city currently are subject to the jurisdiction of the board of directors of the company. The area within the city in which the company may provide electric service currently is subject to the provisions of the M.S.A. §§ 216B.37—.40.
2.4.
Publication expense. The expense of publication of this ordinance shall be paid by the company.
2.5.
Dispute resolution. If the city or the 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 30 days after service of the notice, the parties may jointly select a mediator to facilitate negotiation. The parties will share equally the fees and expenses of the 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.
Sec. 3. - Location, other regulations.
3.1.
Location of facilities. Electric facilities must be located, constructed, installed, and maintained so as not to interfere with the safety and convenience of ordinary travel along and over public ways. Electric facilities must be located on public grounds as determined by the city. The company's construction, reconstruction, operation, repair, maintenance, and location of electric facilities shall be subject to other ordinances and regulations of the city.
3.2.
Field locations. Upon request by the city, the company must provide field locations for any of its underground electric facilities consistent within the period of time required by state law or city ordinance, whichever is shorter.
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. Permit conditions imposed on the company must not be more burdensome than those imposed on other utilities for similar facilities or work. The company may, however, open and disturb the surface of any public way or public ground without permission from the city if (i) an emergency exists requiring the immediate repair of electric facilities and (ii) the company gives notice to the city before, if possible, commencement of the emergency repair. On the next business day after commencing the repair, the company must apply for any required permits and pay any required fees.
3.4.
Restoration. After completing any work requiring the opening of any public way or public ground, the company must restore the same, including paving and its foundation, to the condition formerly existing and maintain the same in good condition for two years 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, but not to exceed five days, 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, plus ten percent of cost and administrative expense. This remedy is in addition to any other remedies available to the city for noncompliance with this section.
3.5.
Shared use of poles. The company must make space available on its poles, towers or, upon timely request by the city for city fire, water utility, police or other city utility system whenever such use will not interfere with the use of such poles, towers, by the company, by another electric utility, by a telephone utility, or by any cable television company or other form of communication company. The city must pay for any added cost incurred by the company because of such city use. Any such attachment or use shall be in accordance with the national electric safety code.
3.6.
Company protection of electric facilities. The company must take reasonable measures to prevent the electric facilities from causing damage to persons or property. The company must take reasonable measures to protect the electric facilities from damage that could be inflicted by persons, property, or the elements. The company must take protective measures when the city performs work near the electric facilities, if given reasonable notice by the city of such work prior to its commencement.
3.7.
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 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 ways and 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 electric facilities.
3.8.
Tree trimming. The company may trim or selectively spray with approved herbicides, all trees and shrubs in the public ways and public grounds of the city interfering with the proper construction, operation, repair and maintenance of any electric facilities, provided that the company must save the city harmless from any liability arising therefrom, and will be subject to permit or other reasonable regulations by the city.
Sec. 4. - Relocations.
4.1.
Relocation of electric facilities in public ways. If the city determines to vacate a public way or public ground for a city improvement project, or to grade, regrade or change the alignment of any public way or public ground, or construct or reconstruct any city utility system in any public way, or construct or reconstruct any city utility system in any public way, the city may order the company to relocate its electric facilities located therein. The company must relocate its electric facilities at its own expense. The city must give the company reasonable notice of plans to vacate for a city improvement project, or to grade, regrade, or change the alignment of any public way or to construct or reconstruct any city utility system. If any subsequent relocation is required because of the extension of a city utility system to a previously unserved area, the company may be required to make the subsequent relocation at its own expense. Any relocation of same electric facilities within five years shall be reimbursed by the city to the company to cover non-betterment expenses. Nothing in this ordinance requires the company to relocate, remove, replace or reconnect its facilities at the company's expense where such relocation, removal, replacement of 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 electric facilities in public ground. The city may require the company 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 of the public use or enjoyment to which the public ground is or will be put. The relocation or removal will be at the company's expense. The provisions of section 4 apply only to electric facilities constructed in reliance on this franchise and the company does not waive its rights under an easement or prescriptive right, or state or county permit.
4.3.
Vacation of public ways. The city must give the company at least two weeks' notice of the proposed vacation of a public way. Except where required for a city street or other improvement project, or otherwise provided in section 4.2, the vacation of any public way, after the installation of electric facilities, does not deprive the company of its rights to operate and maintain such electrical facilities until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are first paid to company by the city. The city is not liable to the company for failure to specifically preserve a right-of-way, under M.S.A. § 160.29.
4.4.
Projects with federal funding. Relocation, removal, or rearrangement of any company facilities made necessary because of the extension into or through city of a federally aided highway project shall be governed by the provisions of M.S.A. § 161.46.
4.5.
Liability. Nothing in this ordinance relieves any person from liability arising out of the failure to exercise reasonable care to avoid damaging electric facilities while performing any activity.
Sec. 5. - Indemnification.
5.1.
Terms. The company will defend, indemnify, keep and hold the city free and harmless from any and all liability on account of injury to persons or damage to property caused by the construction, maintenance, operation, repair, inspection, the issuance of permits, or the operation of the electric facilities located in the city. The city shall not be indemnified by the company for losses or claims in which the city is determined to be negligent, except for losses or claims arising out of or alleging the city's negligence as to the issuance of permits for, or inspection of, the company's plans or work. The city will 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 the city after notice to the city of the company's determination.
5.2.
Litigation. If a suit is brought against the city under circumstances where the agreement in section 5.1 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.
Sec. 6. - Successors in interest.
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. This ordinance and the franchise it confers may not be assigned by the company without the written consent of the city.
Sec. 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 the company, succeed to all of the rights and obligation of the city provided in this ordinance.
Sec. 8. - Franchise fee.
8.1.
Separate ordinance. During the term of the franchise hereby granted, and in addition to other fees being imposed or that the city has the right by statute to impose on the company, the city may require a franchise fee to be paid by the company. The franchise fee must be imposed by a separate ordinance, which ordinance may not be adopted until at least 60 days after notice enclosing such proposed ordinance has been served upon the company by certified mail. The fee does not become effective until 60 days after notice enclosing the adopted ordinance has been served upon the company by certified mail.
8.2.
Calculation of fee. The city may impose the franchise fee: (i) as a percentage of gross revenues received by the company for its operations within the city; or (ii) as a flat fee per customer based on metered service to retail customers within the city or on some other reasonable basis; or (iii) as a fee based on units of energy delivered to any class of retail customers within the corporate limits of the city. The formula for a franchise fee based on units of energy delivered may incorporate both commodity and demand units. The method of imposing the fee, the percent of revenue rate, the flat rate and the per unit rate may differ for each customer class. The design of said fees shall be consistently and equally applied by the city to all utility providers operating within the city in order to prohibit any unfair advantage for one company over another as a result of the imposition of said fees. Electric energy sales for the purpose of providing fuel for vehicles shall be exempt from this ordinance.
8.3.
Collection of the fee. The franchise fee will be payable not less often than quarterly and based on any of the alternative formulas described in section 8.2 during complete billing months of the period for which payment is to be made. The franchise fee formula may be changed by ordinance from time to time; however, each change must meet the same notice requirements and may not be made more often than annually. The fee may not exceed any amount that the company may legally charge to its customers prior to payment to the city, by imposing a surcharge equivalent to such fee in its rates for electric service. The company may pay the city the fee based upon the surcharge billed subject to subsequent reductions to account for uncollectibles or customer refunds. The time and manner of collecting the franchise fee is subject to the approval of the board of directors of the company. The company agrees to make available for inspection by the city at reasonable times all records necessary to audit the company's determination of the franchise fee payments.
8.4.
Continuation of franchise fee. If this franchise expires and city and the company are unable to agree to terms of a new franchise, the franchise fee, if any, being imposed by the city at the time this franchise expires, will remain in effect until a new franchise is agreed upon.
Sec. 9. - 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.
Sec. 10. - Severability.
If any portion of this franchise is found to [be] invalid for any reason whatsoever, the validity of the remainder will not be affected.
Sec. 11. - Amendment.
This ordinance may be amended at any time by the city. An amendatory ordinance becomes effective upon filing of the company's written consent thereto.
Sec. 12. - Previous franchises superseded.
This franchise supersedes any previous electric franchise granted to the company or its predecessors.
Introduced and read in full this fifth day of February, 1998.
Passed by the Blaine City Council this fifth day of March, 1998.
Attest:
Council action: 98-107
Dated: March 5, 1998
Published: March 13, 1998
Sec. 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 Blaine, County of Anoka, State of Minnesota.
1.2.
City utility system. Facilities used for providing nonenergy related public utility service owned or operated by the city or agency thereof, including sewer 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 that 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 assignees.
1.5.
Electric facilities. Electric transmission and distribution towers, poles, lines, guys, anchors, conduits, fixtures, and necessary appurtenances owned, operated or otherwise used by the company for the purpose of providing electric energy for public use.
1.6.
Non-betterment costs. Cost incurred by company from relocation, removal or rearrangement of electric facilities that do not result in an improvement to the electric facilities.
1.7.
Notice. A writing served by any party or parties on any other party or parties. Notice to the company shall be mailed to the General Counsel, Law Department, Northern States Power Company, 414 Nicollet Mall, Minneapolis, MN 55401. Notice to city shall be mailed to the City Manager, City of Blaine, 9150 Central Ave. NE, Blaine, MN 55434. Either party may change its respective address for the purpose of this ordinance by written notice to the other party.
1.8.
Effective date. The date on which the ordinance becomes effective under section 2.2.
1.9.
Public way. Any street, alley, walkway, or other public rights-of-way within the city.
1.10.
Public ground. Land owned by the city for parks, open space or similar purpose, which is held for use in common by the public.
Sec. 2. - Franchise.
2.1.
Grant of franchise. City grants company, for a period of 20 years from the date of passage of this ordinance, the right to transmit and furnish electric 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, the company may construct, operate, repair and maintain electric facilities in, on, over, under and across the public ways and public grounds of city subject to the provisions of this ordinance. Company may do all things reasonably necessary or customary to accomplish these purposes, subject however to such reasonable regulations as may be imposed by the city pursuant to ordinance 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 its passage and its acceptance by the company, and its publication as required by law. An acceptance by the company must be filed in writing with the city clerk within 90 days after publication of this ordinance.
2.3.
Service rates and area. The service to be provided and the rates to be charged by company for electric service in city currently are subject to the jurisdiction of the public utilities commission. The area within the city in which the company may provide electric service currently is subject to the provisions of the M.S.A. § 216B.40.
2.4.
Publication expense. The expense of publication of this ordinance shall be paid by the 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 must 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 30 days of the written notice, the parties may jointly select a mediator to facilitate further discussion. The parties will share equally the fees and expenses of the 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.
Sec. 3. - Location, other regulations.
3.1.
Location of facilities. Electric facilities shall be located, and constructed, so as not to interfere with the safety and convenience of ordinary travel along and over public ways and so as not disrupt normal operation of any city utility system previously installed therein. Electric facilities shall be located on public grounds as determined by city. Company's construction, reconstruction, operation, repair, maintenance, and location of electric facilities shall be subject to other reasonable regulations of the city. Under this franchise agreement the city does not relinquish its police power regulatory authority and company does not relinquish its eminent domain authority. Company may abandon underground electric facilities in place provided at city's request company removes abandoned metal conduit or concrete enclosed conduit interfering with a city improvement project if such conduit is uncovered as part of the city improvement project.
3.2.
Field locations. The company shall provide field locations for its underground electric facilities within city consistent with the requirements of M.S.A. ch. 216D.
3.3.
Street openings. Company shall not open or disturb the paved surface of any public way or public ground for any purpose without first having obtained permission from the city, for which the city may impose a reasonable fee. Any conditions imposed on the company must not be more burdensome than those imposed on other utilities for similar facilities or work. Company may, however, open and disturb the paved surface of any public way or public ground without permission from the city where an emergency exists requiring the immediate repair of electric facilities. In such event, company shall notify 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. In the event that there is no franchise fee imposed pursuant to section 8.1, the city retains the right to charge a permit fee.
3.4.
Restoration. After undertaking any work requiring the opening of any public way or public ground, company must restore the same, including paving and its foundation, to as good a condition as formerly existed and shall maintain any paved surface in good condition for two years thereafter. The work must be completed as promptly as weather permits and if the company does not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the public way or public ground in the said condition, the city shall have, after demand to the 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, including its administrative expense and overhead, plus ten percent additional as liquidated damages. This remedy shall be in addition to any other remedy available to the city for noncompliance with this section 3.4.
3.5.
Shared use of poles. The company must make space available on its poles, towers, for city fire, water utility, police or other city facilities whenever such use will not interfere with the use of such poles or towers, by company, by another electric utility, by a telephone utility, or by any cable television company or other form of communication company. In addition, city shall pay for any added cost incurred by company because of such city use.
3.6.
Notice of improvements. The city must give company reasonable notice of plans for improvements to public ways or public grounds 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 ways and 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 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 electric facilities.
3.7.
Tree trimming. The company may trim all trees and shrubs in the public ways and public grounds of the city interfering with the proper construction, operation, repair and maintenance of any electric facilities installed hereunder; provided that company must save city harmless from any liability arising therefrom, and subject to permit or other reasonable regulations by city.
3.8.
Company protection of electric facilities. Nothing in this ordinance relieves any person from liability arising out of the failure to exercise reasonable care to avoid damaging electric facilities while performing any activity.
Sec. 4. - Relocations.
4.1.
Relocation of electric facilities in public ways. Except as provided in section 4.4, if the city determines to vacate a public way for a city improvement project, or at the city's cost to grade, regrade or change the line of any public way, or construct or reconstruct any city utility system in any public way, the city may order company to relocate its electric facilities located therein if relocation is reasonably necessary to accomplish the city's proposed public improvement. Company shall relocate its electric facilities at its own expense. The city must give the company reasonable notice of plans to vacate for a city improvement project, or to grade, regrade, or change the line of any public way or to construct or reconstruct any city utility system. If a relocation is ordered within five years of a prior relocation of the same electric facilities, which was made at company expense, the city shall reimburse company for non-betterment costs on a time and material basis. If any 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 own expense. Nothing in this ordinance requires the company to relocate, remove, replace or reconstruct at its own expense its electric 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 electric facilities in public ground. Except as may be provided in section 4.4, the city may require the company, at the 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 of the existing or proposed public use of the public ground.
4.3.
No waiver. The provisions of section 4 apply only to electric facilities constructed in reliance on a franchise and the company does not waive its rights under an easement or prescriptive right, or state or county permit.
4.4.
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 M.S.A. § 161.46 as supplemented or amended. It is understood that the right herein granted to the company is a valuable right. The city shall not order the company to remove or relocate its electric facilities when a public way is vacated, improved or realigned because of a renewal or a redevelopment plan which is financially subsidized in whole or in part by the federal government or any agency thereof, unless the reasonable non-betterment costs of such relocation and the loss and expense resulting therefrom are first paid to company, but the city need not pay those portions of such for which reimbursement to it is not available.
Sec. 5. - Vacation of public ways.
The city must give the company at least two weeks' prior written notice of the 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 electrical facilities until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are first paid to company. In no case, however, shall the city be liable to the company for failure to specifically preserve a right-of-way, under M.S.A. § 160.29.
Sec. 6. - Indemnification.
6.1.
Indemnity of the 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 electric facilities located in the public ways and public grounds. 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. 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 the city after notice of company's determination.
6.2.
Defense of the 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 will 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 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 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.
Sec. 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 obligation of the city provided in this ordinance.
Sec. 8. - Franchise fee.
8.1.
Separate ordinance. During the term of the franchise hereby granted, and in lieu of any permit fee or other fees being imposed on company, the city may impose on company a franchise fee for each customer classification not to exceed an amount determined by collecting the amounts indicated below from each customer in the designated company customer classification for metered service at each and every customer location.
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 60 days after written notice enclosing such proposed ordinance has been served upon the company by certified mail. The fee shall not become effective until at least 60 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. A separate ordinance which imposes a lesser franchise fee on the residential class of customers than the amount set forth in the above fee schedule shall not be effective against company unless the fee imposed on each other customer classification is reduced proportionately by the same percentage as the reduction represented by the lesser fee on the residential class. The payment of a franchise fee as provided by this section 8.1. does not relieve company from paying fees to city unrelated to the installation, ownership or operation of electric facilities, such as building permit fees.
8.2.
Terms defined. For the purpose of this section 8, the following definitions apply:
8.2.1.
Customer classification 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.
8.2.2.
Final order refers to an order of the commission changing company's electric service rates for one or more of the company's customer classifications, if the order is not an interim order and the time for appeal on such order has expired or all proceedings relating to an appeal have been exhausted.
8.2.3.
Fee schedule. Refers to the schedule in section 8.1 setting forth an amount per month for various customer classes.
8.3.
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 metered 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 metered 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 rate 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. The time and manner of collecting the franchise fee is subject to the approval of the commission, which company agrees to use its best efforts to obtain. 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.
8.4.
Conditions on the fee. 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, or by comparing as to similar customers, the percentage of the annual bill represented by the amount collected for the franchise fee purposes. The franchise fee or tax shall be applicable to energy sales for any energy use related to heating, cooling, or lighting, as well as to the supply of energy needed to run machinery and appliances on premises located within or adjacent to the city, but shall not apply to energy sales for the purpose of providing fuel for vehicles.
8.5.
Permitted adjustments. If following effective date of this franchise the commission by final order approves a change in company's electric rates resulting in a general rate increase for one or more customer classifications, company shall calculate and send to the city a letter setting forth the amount, as a percentage, of authorized increase for each classification of customer with 60 days after company receives the final order. The amount of the franchise fee that may be imposed by the city, may be increased from the fee schedule in section 8.1 by an amount not to exceed the percentage for the applicable customer classification stated in company's letter times each monthly amount set forth in the fee schedule. In this manner the franchise fee collected or permitted to be collected from each class of customer can increase by the same percentage as company's electric rate increases. During the period where the city has imposed a franchise fee by separate ordinance under section 8.1, there is no waiver of the right to impose the amendment if the city does not seek an increase in any franchise fee immediately after any such letter from company and, if the city so chooses, the city can combine the percentages derived from more than one rate case, to the extent not previously applied by the city, in setting the amount of the franchise fee, so that the city is not prejudiced by delaying any action to impose or increase the franchise fee.
Sec. 9. - Limitation on applicability.
This ordinance constitutes a franchise agreement between the city and the 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 agreements 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.
Sec. 10. - 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. Where a provision of any other city ordinance conflicts with the provisions of the ordinance, the provisions of this ordinance shall prevail.
Sec. 11. - Amendment.
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 filing of the company's written consent thereto with the city clerk within 60 days after the effective date of the amendatory ordinance.
Introduced and read in full this fifth day of February, 1998.
Passed by the Blaine city council this fifth day of March, 1998.
Attest:
Dated: March 5, 1998
Published: March 13, 1998
Council action: 98-109
Sec. 1. - Short title and definitions.
The City of Blaine does ordain:
Editor's note— Ord. No. 21-2478, adopted Aug. 16, 2021, repealed the former Art. I, §§ 1—11, and enacted a new Art. I as set out herein. The former Art. I pertained to similar subject matter and derived from Ord. No. 98-1697, adopted March 5, 1998. Amendments are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Obvious misspellings and punctuation errors have been corrected without notation. For stylistic purposes, headings and catchlines have been made uniform, and the same system of capitalization, citation to state statutes, and expression of numbers in text as appears in the Code of Ordinances has been used. Additions made for clarity are indicated by brackets.