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HomeMy WebLinkAbout2003-06 06-19 APSTATE OF MINNESOTA) COUNTY OF HENNEPIN) Richard Hendrickson, being duly sworn on an oath states or affirms, that he is the Chief Financial Officer of the newspaper known as Sun -Post and has full 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 19 day of June 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 publica Subscribed and on this C day o Nota ss. abcdefghijklmno to or affirm before me 003. MERIDEL M. HEDBL "`A NOTARY PUBLIC- MINNE:QT. MY COMMISSION EXPIRES i -23F. WVIANYNANNAAAlvselvwYVVVVNAAAMIst RATE INFORMATION (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 BY: CFO notice: 2.85 per line 6.20 per line 1.40 per line City of Brooklyn Center (Official Publication) CITY OF BROOKLYN CENTER Notice is hereby given that a public hearing will be held on the 14th day of July at 7:00 p.m. or as soon thereafter as the matter may be heard at City Hall, 6301 Shingle Creek Parkway, to consider a natural gas franchise ordinance. Auxiliary aids for handicapped persons are available upon request at least 96 hours in advance. Please notify the Deputy City Clerk at 763- 569 -3308 to make arrange ments. ORDINANCE NO. AN ORDINANCE GRANTING CENTERPOINT ENER- GY MINNEGASCO, A DIVISION OF CENTERPOINT ENERGY RESOURCES CORPORATION, A DELAWARE CORPORATION, ITS SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OP- ERATE, REPAIR AND MAINTAIN FACILITIES AND EQUIPMENT FOR THE TRANSPORTATION, DISTRIB- UTION, MANUFACTURE AND SALE OF GAS ENERGY FOR PUBLIC AND PRIVATE USE AND TO USE THE PUBLIC WAYS AND GROUNDS OF THE CITY OF BROOKLYN CENTER, MINNESOTA, FOR SUCH PUR- 1 POSE; AND, PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF THE CITY COUNCIL OF THE CITY OF BROOKE CENTER DOES ORDAIN AS FOLLOWS: SECTION 1. DEFINITIONS. For purposes of this Ordinance, the following capitalized` terms listed in alphabetical order shall have the follod6ing meanings: City. The City of Brooklyn Center; County of Hennepin, State of Minnesota. City Utility System. Facilities used for providing public 1 utility service owned or operated by City or an agency thereof including sewer, storm sewei; water service, street lighting and traffic signals, but excluding facilities for pro- viding heating, lighting, 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 ;l part of the authority to regulate gas retail rates now vest- ed in the Minnesota Public Utilities Commission. Company. CenterPoint Energy Minnegaaco, 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 Fa- cilities. 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, Minnesota 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 -of -way within the City as de- fined in Minn. Stat. 237.162, subd. 3. Public Ground. Land owned or otherwise controlled by the City for park, open space or similar public purpose, which is held for use in common by the public. SECTION 2. ADOPTION OF FRANCHISE. 2.1. Grant of Franchise. City hereby grants Compa- ny, fora period of 10 years 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 provision of Gas that is (i) manufactured by the Company or its affiliates and delivered by the Com- 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, subject however, to such lawful regulations as may be adopted by separate ordi- nance and as currently exist under City Code, Sections 25- 1000 through 25 -1032 (the "Right -of -Way Ordinance The.Company shall be notified 60 days in advance of pro- posed changes to the Right -of -Way Ordinance. The City and Company shall negotiate in good faith to reach mutu- ally acceptable changes. If the City and Company are un- able to agree, disputes will be handled under the terms of Section 2.5 of this Ordinance. If a provision of the Right of -Way Ordinance conflicts with a provision on the same subject in this Ordinance, this Ordinance will control: 2.2. Effective Date. Written Acceptance. This fran- chise shall be in force and effect from and after adoption and upon thirty (30) days following publication of this Or dinance as required by law and its acceptance by Compa- ny. If Company does not file a written acceptance with the City within 90 Days after the date the City Council adopts this Ordinance, or otherwise places the City on written no- tice, at any earlier time, that the Company does not accept all terms of this franchise, the City Council by resolution may either repeal this ordinance or seek its enforcement in a court of competent jurisdiction. 2.3. Service and Gas Rates. The service to be pro- vided and the rates to be charged by Company for gas ser- vice in City are subject to the jurisdiction of the Commis- sion 2.4. Publication E_�ense The expense of publication of this Ordinance shall be paid by Company. 2.5. Dispute Resolution. If either party asserts that the other party is in default in the performance of any obligation hereunder, the complaining party shall notify the other party of the default and the desired remedy. The notification shall be written. Representatives of the par- ties must promptly meet and attempt in good faith to ne- gotiate a resolution of the dispute. If the dispute is not re- solved 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 un- able to resolve the dispute within 30 days after first meet- ing with the selected mediator, either party may com- mence an action in District Court to interpret and enforce this franchise 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 writ- ten Notice to the other party of its intention to allow the franchise 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 determined by the City. 3.2. Restoration of Public Wave and Public Ground. Restoration of the Public Way shall be subject to the Right-of-Way Ordinance. After completing work re- quiring the opening of Public Ground, the Company shall restore the Public Ground to as good a condition as for- merly existed, and shall maintain the surface in good con- dition for six (6) months thereafter. All work shall be com- pleted as promptly as weather permits. 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 and after demand to Compa- ny to cure, City shall, after passage of a reasonable period of time following the demand, but not to exceed five days, have the right to make the restoration of the Public Ground at the expense of Company. Company shall pay to the City the cost of such work done for or performed by the City. This remedy shall be in addition to any other reme- dy available to the City for noncompliance with this Sec- tion. 3.3. Waiver of Performance Security, The City hereby waives any requirement for Company to post a con- struction 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 cur- rently or in the future. The City reserves all other rights under the Right -of -Way Ordinance to enforce Company performance requirements for work in the Public Way or Public Ground. 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 Facilities in Public Ways shall be subject to the Right-of- Way Ordinance. City may require Company at Company's expense to relocate or remove its Gas Facilities from Pub lic 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. t E erg Fundia_a,. Relocation, re- made rearrangement of any Company Gas Facilities made necessary essary 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 on or to Gas Facilities constructed in reliance on a permit franchise from City, and Company does not waive its rights under an easement or prescriptive right or State or Coun- ty permit. SECTION 5. r'IISN p' ri sADM OE C-OVERN-' IREttl. in the form of government of the City shall not I Any change of this Ordinance. Any governmental i affect the validity w ithoutthe consent ofCom- pany, succeed to the City shall, i pany, succeed to all of tiie.nghts and obligations of the City provided in this Ordinance. SECTION 6.ex —FEE. 6.1. Form. During the term of the franchise hereby granted, and in addition to permit fees being imposed or that the City has a right to impose, the City may charge the Company a franchise fee. The fee may be (i) a p r- centage of gross revenues received by the Company s for operations within the City, or (ii) a flat fee per c based on metered service to retail customers t fee within based the oe City or on some other similar basis, units of energy delivered to any class of retail customers within the corporate limits of the City. The method of im- posing the franchise fee, the percentage of revenue rate, or 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 stable and predictable amount of fees, without placing the Company at a competitive dis- advantage. If the Company claims that the City required fee formula is discriminatory or otherwise places the Com- pany at a competitive disadvantage, the Company shall provide a formula that will produce a substantially simi- lar fee amount to the City and reimburse the City's rea- sonable fees and costs in reviewing and implementing the formula. The City will attempt to accommodate the Com- pany but is under no franchise obligation to adopt the Company proposed franchise fee formula and each review will not delay the implementation of the City imposed fee. 6.2. Separate Ordinance. The franchise fee be imposed by separate ordinance duly adopted by the City Council, which ordinance shall not be adopted until at least thirty (30) days after written notice enclosing such proposed ordinance has been served upon the Company. The fee shall become effective ten (10) days after written notice enclosing such adopted ordinance has been served upon the Company by certified mail. 6.3. Condition of Fee. The separate ordinance im- posing the fee shall not be effective against the Company 1 unless it lawfully imposes a fee of the same or substan- tially similar amount on the sale of gas energy within the City by any other gas 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 a pre- viously agreed upon franchise 6 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 require- ments and the fee may not be changed more often than an- nually. Such fee shall not exceed any amount that the Company may legally charge to its customers prior to payment to the City. Such fee is subject to subsequent re- ductions to account for uncollectibles and customer re- funds incurred by the Company. The Company agrees to make available for inspection by the City at reasonable times all records necessary to audit the Company's deter- mination of the franchise fee payments. 6.5. Continuation of Franchise Fee. If this fran chise expires and the City and the Company are unable to agree upon terms of a new franchise, the franchise fee, if i any being imposed by the City at the time this franchise expires, will remain in effect until a new franchise is agreed upon. SECTION 7. LIMITATION ON APPLICABILPI'Y 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) so 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 of any 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 subse- quent ordinance declaring the provisions of the amend- ment, which amendatory ordinance shall become effective upon the filing of Company's written consent thereto with the City Manager within 60 days after the effective date of the amendatory ordinance. SECTION 9. PREVIOUS FRANCHISES SUPER SEDER. 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 day of 2003 Mayor ATTEST: Clerk Date of Publication Effective Date (June 19, 2003)Pl/Centerpoint Energy Minnegaaco 1