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HomeMy WebLinkAbout2003-06 07-24 APSTATE OF MINNESOTA) Subscribed and sworn -t or affirm :d before me on this c 1 day of 2003. Nota SS. abcdefghijklmnopgrs s L IC MERIDEL M. HEDBLOM NOTARY PUBLIC-MINNESOTA MY COMMISSION EXPIRES 1.312005 (1) Lowest classified rate paid by commercial users for comparable space (2) Maximum rate allowed by law (3) Rate actually charged newspapers AFFIDAVIT OF PUBLICATION COUNTY OF HENNEPIN) Richard Hendrickson, being duly sworn on an oath states or affirms, that he is the Chief Sun -Post and has full Financial Officer of the newspaper known as knowledge of the facts stated below: (A) The newspaper has complied with all of the requirements constituting qualification as a qualified newspaper, as provided by Minn. Stat. §331A.02, §331A.07, and other applicable laws, as amended. (B) The printed public notice that is attached was published in the newspaper once each week, for one successive weeks; it was first published on Thursday, the 24 day of July 2003, and was thereafter printed and published on every Thursday to and including Thursday, the day of 2003; and printed below is a copy of the lower case alphabet from A to Z, both inclusive, which is hereby acknowledged as being the size and kind of type used in the composition and publication of the notice: t R d BY: CFO RATE INFORMATION 2.85 per line 6.20 per line 1.40 per line City of Brooklyn Center (Official Publication) CITY OF BROOKLYN CENTER NOTICE OF ORDINANCE ADOPTION ORDINANCE NO. 2003.06 AN ORDINANCE GRANTING CENTERPOINT ERGY MINNEGASCO, A DIVISION OF CENTER- POINT ENERGY RESOURCES CORPORATION, A DELAWARE CORPORATION, ITS SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND MAIN- TAIN FACILITIES AND EQUIPMENT FOR THE TRANSPORTATION, DISTRIBUTION, MANUFAC- TURE AND SALE OF GAS ENERGY FOR PUBLIC AND PRIVATE USE AND TO USE THE PUBLIC WAYS AND GROUNDS OF THE CITY OF BROOK. LYN CENTER, MINNESOTA, FOR SUCH PURPOSE; AND, PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS: SECTION 1. DEFINITIONS, For purposes of this Ordinance, the following capitalized terms listed in alphabetical order shall have the following meanings; City. The City of Brooklyn Center, County of Hennepin, State of City Utility System. Facilities used for providing public utility service owned or operated by City or an agency thereof, including sewer, storm sewer, water service, street lighting and traffic signals, but excluding facilities for pro viding heating, fighting, or other forms of energy. Commission. The Minnesota Public Utilities Commis- sion, 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. Company. CenterPoint Energy Minnegasco, a division of CenterPoint Energy Resources Corporation, a Delaware corporation, its successors and assigns including all suc- cessors or assigns that own or operate any part or parts of the Gas Facilities subject to this franchise. Gas Facilities. Gas transmission and distribution pipes, lines, ducts, fixtures, and all necessary equipment and ap- purtenances owned or operated by the Company for the purpose of providing gas energy for public or private use. Gas. Natural gas, manufactured gas, mixture of natural gas and manufactured gas or other forms of gas energy. Non Betterment Costs. Costs incurred by Company from relocation, removal or rearrangement of Gas Facili- ties that do not result in an improvement to the Gas Facil- ities. Notice. A writing served by any party or parties on any other party or parties. Notice to Company shall be mailed to CenterPoint Energy Minnegasco, V.P., Regulatory Supply Service, 800 LaSalle Avenue, Minneapolis, MN 55402-2006. Notice to the City shall be mailed to the City Manager, City of Brooklyn Center, 6301 Shingle Creek Parkway, Brooklyn Center, Min iesota 55430 -2113. Either party may change its address for the purpose of this Ordi- nance by written notice to the other party. Public Way. Public right -o" -way within the City as de- fined in Minn. Stat. 237.16 subd. 3. Public Ground. Land ow ,ed,or otherwise controlled by the City for park, open sp ice or similar public purpose, which is held for use in cot anon by the public. SECTION 2. ADOPTION OF FRANCHISE. 2.1. Qant of Franchise.. City hereby grants Company, for a period of 10 yearn from the date this Ordinance is passed and approved by the City, the right to import man- ufacture, distribute and sell gas 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 the pro ision of Gas that is (i) manufactured by the Company or it affiliates and delivered by the Corn- pany, (ii) purchased .and delivered by the Company or (iii) purchased from another source by the retail customer and delivered by the Company. For these purposes, 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 Ordinance. Com- pany may do all reasonable things necessary or customary, to accomplish these purposes,?si ject however, to such lawny, ful regulations as may be adopted by separate ordinance and as currently exist under City Code, Sections 25 -1000 through 25 -1032 (the "Right -of -Way Ordinance Thev Company shall be notified 60 days advance of. pro changes to the Right -of -Way nance. The Cit k Company shall negotiate in goad faith to reach mutually acceptable changes. If the Ci and Company are unable der the terms of Sec B iota of"thalught -ofd puthe same sub control an 2.5 of this Ordin If s Way Ordinance conflicts witha ject in this, `Le$* 2.& eo tive Date Wtrittert Acc ma. chiae shall bb in force an d aadr adopti nndtupc thf days folio n o£thte th tlinanea as equired by la an ttsaeceptanc by Comps- ny l Wompany does not�l a Ayritt a ccept ant 'tl they City within 90 Days the date the e Ci C ity Co �dopta ibis Ordntan ora tite rw is en places th on written n Mi ce at y e e t tha y does notattce all te rms of this franch th City Council by resoluti may eith this or o seek its enforcement in a cour of competent jurisdi ction. 2.3 i ce sail Gas Rates The s ervice to be provided an the rates to °be charged by Comp for gas service Cit a"re s thejlurisdfelaoh of the C'�o tutias ion 2 .4. Pub Expense. `heexpense of publication thi Ordinance s hall be paid by Company 2. Disp Resolution If either party asserts that th oth p arty is i n default i n the perf of any oblige timer th e: co mplain ing party me notify the oth p arty of the default and desired Th itd. tifi shall be wri tten.. Re presen ta tives of the p arties mu st p r omptly mee and attempt in g oo d faith negoti- ate ;`Tithe di spute isnotre within 30 days of the wri n otice, the parties may., oint• ly select a mediator t fac ilita te fu rther dis c us sio The p ar t ies will equ share the fees and ex penses of this me diator. If a mediator is not usedor if t parties ar e un able to resolve dispute within days after first meet w ith the sele cted m ediator, either party tray com an action in Distr Co urt to interpre a e nforce this Fran chise or for any other relief permitted by law. 2.6. Continuation of Franchise. If the City and the Company are unable to agree on the terms of a new fran- chise by the time this franchise expires, this franchise will remain in effect until a new franchise is agreed upon, or until 90 days after the City or the Company serves written Notice to the other party of its intention to allow the fran- chise to expire. SECTION 3. LOCATION. OTHER REGULATIONS, 3.1. Location of Facilities. Subject to regulation under the Right -of -Way Ordinance, Gas Facilities in the Public Way shall be located, constructed, and maintained so as not to disrupt normal operation of any City Utility System. Gas Facilities may be located on Public Grounds as deter- mined by the, City. 3.2. Restoration of Public Ways and Public Ground. Restoration of the Public Way shall be anbjecttothe Right of -Way Ordinance. After completing work requiring the opening of Public Ground, the Company shall restore the Public Ground to as good a condition as formerly existed, and maintain the surface in good condition for six (6) months thereafter. All work shall be completed as prompt- ly as weather permits. If Company shall not promptly per form and complete the work, remove all dirt, rubbish, equipment and material, and put the Public Ground in the said condition and after demand to Company to cure, City shall, after passage of a reasonable period of time follow ing the demand, but not to exceed five days, have the right to make the restoration of the Public Ground at the ex- pense of Company. 'Company shall pay to the City the cost of such work done for or performed by the City."` This rem edy shall be in addition to any other remedy available to the City for noncompliance with this Section. 3.3. Waiver of Performance Security The City hereby waives any requirement for Company to post a construc- tion performance bond, certificate of insurance, letter of credit or any other form of security or assurance that may be required under the Right -of -Way Ordinance currently or in the future. The City reserves all other rights under the Right-of-Way Ordinance to enforce Company perfor- mance requirements for work in the Public Way or Public 3.4. Avoid Damage to Gas Facilities. Nothing in this Ordinance relieves any person from liability arising out of the failure to exercise reasonable care to avoid damaging Gas Facilities while performing any activity. SECTION 4. RELOCATIONS, 4.1. Relocation of Gas Facilities, Relocation of Gas Fa- cilitiee in Public Ways shall be subject to the Right-of-Way Ordinance. City may require Company at Company's ex- pense 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 Grounds. Relo- cation Gas Facilities in Public Ground shall comply with applicable City ordinances consistent with law. 4.2.1eMeS1a with± Fedora Fundine- Relocation, re- moval, "or rearrangement of any Company Gas Facilities made necessary because of the extension into "Or through City of a federally -aided highway project shall be governed by the provisions of Minnesota Statutes Section 161.46, as supplemented or amended. 4.3. No Waiver. The provisions of Section 4 apply only to Gas Facilities constructed in reliance on a permit or fran- chise from City, and Company does not waive its rights under an easement or prescriptive right or State or Coun- ty permit. SECTION 6 CRANGE 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 Com- pany, succeed to all of the rights and obligations of the City provided in this Ordinance. SECTION 6. FRANCHISE FEE. 6.1. Form. During the term of the franchise hereby grant- ed, and in addition to permit fees being imposed or that the City has a right to impose, the City may charge the Com pany a franchise fee. The fee may be (i) a percentage of gross revenues received by the Company for its operations within the City, or (ii) a flat fee per customer based on me- tered service to retail customers within the City or on some other similar basis, or (iii) a fee based on units of energy delivered to any class of retail customers within the corpo- rate limits of the City. The method of imposing the fran- chise fee, the percentage of revenue rate, ar the flat rate based on metered service may differ for each customer class or combine the methods described in (i) (iii) above in assessing the fee. The City shall seek to use a formula that provides a,.staple and predictable amount of fees, with outpla g th .c d pany a comp disadvantage. If the Company'claims thatthe` required fee formula is discriminatory places the Companyat a corn petitive disadv the Company s hall provide a for m ule that will pradui asubst fee amount to the City and remahurse'the City s reasonable fees and costs in reviewing and implementing th e f ormul a The City will, attempt to accommodate the Company but is under no franchise obligation to adopt the Company -p ro- posed franchise fee formula and each review will not delay the implementation of the City- imposed fee. 6,2. c 7 chise fee shall be im posed by separate' ordinal 4 adopted by the City Council, which ordinance sb ...it be adopted until at least _thirty (30) days after written notice enclosing such pro pbsed ordinance has been served upon the Company. The -fee shall become effective ten (10) days after written notice enclosing ch adopted ordinance has been served upon the Company by certified mail. 6.3. 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 sim- ilar amount on the sale of gas energy within the City by any,. other gas energy supplier, provided that,as to such. supplier, the`Cityhas the a�ithorityor contractual ri to require a franchise fee or similar fen through a previously 6 :Collection of Pee.: The franchise fee shall be payable not less than quarterly during complete billing months of the period for which payment is to be franchise fee' formula may lie changed from time to time, 'however, the change shall meet the same notice requirements and the fee may natb changed more often than annually. Such fee shall not exceed any amount that the Company may legally to its customers prior to payment to the City. Such fee is subject to subsequent reductions to account for uncollectibles and customer refunds incurred by the Com pany. The Company agrees to make available for inspec- tion by the City at reasonable times all records necessary to audit the Company's determination of the franchise fee payments. 6.5. 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 ex- pires, will remain in effect until a new franchise is agreed upon. SECTION 7. LIMITATION ON APPLICABILITY: NO WAIVER. This Ordinance constitutes a franchise agreement be- tween the City and its successors and the Company and its successors and permitted assigns, as the only parties. No provision of this franchise shall in any way inure to the benefit of any third person (including the public at large) se as to constitute any such person as a third party bene- ficiary 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. This franchise agreement shall not be interpreted to constitute a waiver by the City deny of its defenses of immunity or limitations on liability under Minnesota Statutes, Chapter 466. SECTION 8. AMENDMENT PROCEDURE, Either party to this franchise agreement may at any time propose that the agreement be amended. This Ordinance may be amended at any time by the City passing a subsequent ordinance declaring the provisions of the amendment, which amendatory ordinance shall be- come effective upon the filing of Company's written con- sent thereto with the City Manager within 60 days after the effective date of the amendatory ordinance. SECTION 9. PREVIOUS FRANCHISES' SUPER SEDED, This franchise supersedes and replaces previous franchis- es granted to the Company or its predecessors. Upon Com- pany acceptance of this franchise under Section 2.2, the previous franchise shall terminate. Adopted this 14th day of July, 2003 Mayor Myrna Kragness ATTEST: City Clerk Sharon Knutson Date of July 24, 2003 Effective Date: August 23, 2003 (July 24, 2003)PlJOrd 2003 -06