HomeMy WebLinkAbout1997-09 06-09 CCO CITY OF BROOKLYN CENTER
Notice is hereby given that a public hearing will be held on the 9th day of June, 1997, at 7 p.m. or as
soon thereafter as the matter may be heard at the City Hall, 6301 Shingle Creek Parkway, to consider
an ordinance granting Northern States Power Company a franchise to construct, operate, repair, and
maintain an electric distribution system and transmission lines in Brooklyn Center and to use public
ways and grounds far such purposes.
Auxiliary aids for persons with disabilities are a�ailable upon request at least 96 hours in advance.
Please contact the City Clerk at 569-3300 to make arrangements.
ORDINANCE NO. 97 -�9
AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY_ A
MINNESOTA CORPORATION_ ITS SiJCCESSORS AND ASSIGNS_ PERMISSION
TO CONSTRUCT_ OPERATE. REPAIR AND MAINTAIN IN THE CITY OF
BROOKLYN CENTER. NIINNESOTA. AN ELECTRiC DISTRIBUTION SYSTEM
AND TRANSMISSION L1NFS. IN�LUDNG NECESSARIT POLES. LINES_
FIXTURES AND APPUR'TENANCES. FOR THE FiJRNISHING 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 COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS:
Section l. DEFINITIONS.
Subdivision 1. Citv. The City of Brooklyn Center, County of Hennepin, State of
Minnesota.
Subdivision 2. Citv Utilitv Svstem. Facilities used for providing sewer, water, or any
other public utility service owned or operated by City or agency thereof.
Subdivision 3. Commission. The Minnesota Public Utilities Commission, or any
successor agency or agencies, including an agency of the federal government which preempts all or part
of the authority to regulate electric retail rates now aested in the Minnesota Public Utilities Commission.
Subdivision 4. Comnanv. Northern States Power Company, a Minnesota corporation,
its successors and assigns.
Subdivision 5. Electric Facilities. Electric transmission and distribution towers, poles,
lines, guys, anchars, conduits, fixtures, and necessary appurtenances owned or operated by Company
for the purpose of providing electric energy for public use.
Subdivision 6. Non-betterment Costs. Costs incurred by Company from relocation,
removal or rearrangement of Electric Facilities that do not result in an improvement to the Electric
Facilities.
ORDINANCE NO. Q7-09
Subdivision 7. Notice. A writing served by any party or parties on any other party or
parties. Notice to Company shall be mailed to the General Counsel, Law Department, 414 Nicollet Mall,
Minneapolis, MN 55401. Notice to the City sha11 be mailed to the City Clerk, 6301 Shingle Creek
Parkway, Brooklyn Center, MN 55430. Either party may change its respective address for the purpose
of this Ordinance by written notice to the other party.
Subdivision 8. Public Graund. Land owned by the City for park, open space or similar
purpose, which is held for use in common by the public.
Subdivision 9. Public Wav. Any street, alley, walkway or other public right-of-way
within the City.
Section 2. FRANCHISE.
Subdivision 1. Grant of Franchise. City hereby grants Company, for a period of twenty
(20) years, 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, Company may construct, operate, repair and maintain
Electric Facilities in, on, over, under and across the Public VVays and Public Grounds of City, subject
to the provisions of this Ordinance. 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 ordinance and to the further provisions of this franchise agreement.
Subdivision 2. Effective Date: Written Accentance. This franchise shall be in force and
effect from and after its passage and its acceptance by Company, and its publication as required by law.
An acceptance by Company must be filed with the City Clerk within ninety (90) days after publication.
Subdivision 3. Service_ Rates and Area. The service to be provided and the rates to be
charged by Company for electric service in City are subject to the jurisdiction of the Commission. The
area within the City in which Company may provide electric service is subject to the provisions of
Minnesota Statutes, Section 216B.40.
Subdivision 4. Publication Exnense. The expense of publication of this Ordinance shall
be paid by Company.
Subdivision 5. Disnute 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 thirty (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 thirty (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.
ORDINANCE NO. 97-09
Section 3. LOCATION, OTHER REGULATIONS.
Subdivision 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 to disrupt normal operation of any City Utility System previously installed therein. Electric
Facilities shall be located on Public Grounds as determined by the 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.
Subdivision 2. Field Locations. Company shall provide field locations for any of its
underground Electric Facilities consistent with the requirements of Minnesota Statutes, Chapter 216D.
Subdivision 3. Street Onenin�s. Company shall not open or disturb the paved surface
of any Public Way or Public Ground far any purpose without first having obtained permission from the
City, for which the City may impose a reasonable fee. Permit conditions imposed on Company shall not
be more burdensome than those imposed on other utilities for similar facilities or work. Company may,
however, open and disturb the pa�ed 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 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.
Subdivision 4. Restoration. After undertaking any work requiring the opening of any
Public Way or Public Ground, Company shall restore the same, including paving and its foundation, to
as good condition as formerly existed, and shall maintain the same in good condition for two (2) years
thereafter. The work shall be completed as promptly as weather permits, and if Company shall not
promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the
Public Way or 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 (5) 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 (10%) additional as liquidated damages. This remedy shall be in addition to any other
remedy available to the City for noncompliance with this Subdivision 3.4.
Subdivision 5. Shared Use of Poles. Company shall make space available on its poles
ar 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, the City shall
pay for any added cost incurred by Company because of such use by City.
Subdivision 6. Avoid Dama�e to Electric Facilities. Nothing in this Ordinance relieves
any person from liability arising out of the failure to exercise reasonable care to a�oid damaging Electric
Facilities while performing any activity.
ORDINANCE NO. R7-09
Subdivision 7. Notice of Imnrovements. The City must give 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 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.
Section 4. RELOCATIONS.
Subdivision 1. Relocation of Electric Facilities in Public Wavs. Except as provided in
Subdivision 4.3, if the City determines to vacate for a City improvement project, or to grade, regrade,
or change the line of any Public Way, ar construct or reconstruct any City Utility System in any Public
Way, it may arder Company to relocate its Electric Facilities located therein. Company shall relocate
its Electric Facilities at its own expense, and in a timely manner such as may be set forth in a document
executed by both parties. The City shall give Company reasonable notice of plans to vacate for a City
improvement project, or to grade, regrade, ar change the line of any Public Way or to construct or
reconstruct any City Utility System. If a relocation is ordered within five (5) years of a prior City-
requested 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, provided that if a
subsequent relocation is required because of the extension of a City Utility System to a previously
unserved area, Company may be required to make the subsequent relocation at its expense. Nothing in
this Ordinance requires Company to relocate, remove, replace or reconstruct at its own expense its
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 ar other City improvement.
Subdivision 2. Relocation of Electric Faciligies in Public Ground. Except as may be
provided in Subdivision 4.3, City may require (;ompany to relocate ar 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 to which the Public Ground is or will be put. The relocation or
removal shall be at Company's expense.
Subdivision 3. Proiects with Federal Fundine. Relocation, removal, or rearrangement
of any Company 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 Minnesota Statutes, Section
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 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.
ORDINANCE NO. q7-09
Subdivision 4. No Waiver. The provisions of Section 4 apply only to Electric 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.
Section 5. TREE TRIMMING. Company may trim all trees and shrubs in the Public
Ways and Pubiic Grounds of City interfering with the proper construction, operation, repair and
maintenance of any Electric Facilities installed hereunder, provided that Company shall save the City
harmless from any liability arising therefrom, and subject to permit or other reasonable regulation by
the City. Company shall confer with the City Forester prior to commencement of tree trimming on any
Public Grounds.
Section 6. TNDEMNIFICATION.
Subdivision 1. Indemnification of Citv. 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 VVays and Public Grounds. The City shall not be
indemnified for losses or claims occasioned through its own negligence except for losses or claims
arisin� 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 Cornpany, and such
performance is nevertheless ordered or directed,by City after notice of Company's determination.
Subdivision 2. Defense of Citv. In the event a suit is brou�ht 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 siiall 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 shail be entitled to assert in any action every defense or
immunity that the City could assert in its own behalf.
Section 7. VACATION OF PUBLIC WAYS. The Ciry shall aive Company at least rivo
(2) 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 Electric Facilities, shall
not operate to deprive Company of its rights to operate and maintain such Electric 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 a right-of-way under Minnesota Statutes, Section 160.29.
Section 8. CHANGE IN FORM OF GOVERI�IMENT. 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.
ORDINANCE NO. 97-09
Section 9. FRANCHISE FEE.
Subdivision 1. Fee Schedule. During the term of the franchise hereby granted, and in
lieu of any permit or other fees being imposed on Company, the city may impose on Company a
franchise fee not to exceed an amount determined by collecting the amounts indicated in a fee schedule
set forth in a separate ordinance from each customer in the designated Company Customer Classification
for metered service at each and every customer location based on a fee schedule similar to the following:
Customer Classification Amount per month
Residential
Small C& I and Municipal with no demand charge
Small C& I and Municipal with demand charge
Large C I
The amount from each customer in the Customer Classifica�ion shall be determined so that the total
amount collected annually from all customers does not exceed what is estimated by Company to be 2%
of total annual revenues from the sale of ele�tric energy delivered through meters owned or read by
Company within the City. The separate ordinance must impose a franchise fee on the residential class,
which on an annual basis, totals at least 2°/a of Company's estimated total annual revenues to be
collected from all residential customers within the City. Company shall within 30 days of City's request
provide City with revenue estimates for establishing a Fee Schedule.
Subdivision 2. Senarate Ordinance. The franchise fee shall be imposed by a separate
ordinance duly adopted by the City Council, which ordinance shall not be adopted until at least sixty (60)
days after written notice enclosing such proposed ordinance has been served upon company by certified
mail. The fee shall not become effective until at least sixty (60) days after written notice enclosing such
adopted ordinance has been served upon Company by certified mail. Subdivision 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 an amount vvhich collects 2% of the estimated total annual
revenues from the residential class shall not be effective against Company, unless the fee imposed on
each other Customer Classification in the Fee Schedule is �educed so that the total annual amount
estimated to be collected in any other Customer Classification shall not, as a percentage of the estimated
total annual revenues in that Customer Classi£'ication, exceesl the percentage being collected from the
residential class. The payment of a franchise fee as provided by this Subdivision 9.2 does not relieve
Company from paying fees to City unrelated to the installation, ownership, or operation of electric
facilities, such as building permit fees.
Subdivision 3. Terms Defined. For the purpose of Section 9, the following definitions
apply:
"Customer Classification" shall refer to the elasses listed on the Fee Schedule and as
defined or determined in Company's electric tariffs on file ��th the Commission.
ORDINANCE NO. 9�7-09
"Fee Schedule" refers to the schedule in Subdivision 9.1 setting forth the various
customer classes from which a franchise fee would be �ollected if a separate ordinance were
implemented immediately after the effective date of this franchise agreement. The Fee Schedule in the
separate ordinance may include new Customer Classifications added by Company to its electric tariffs
after the effective date of this franchise agreement.
"Final Order" refers to an order of the Commtssion changing company's electric service
rates for one or more of Company's Customer Classificatioras, if the order is not an interim order and
the time for appeal on such order has expired or all proc�edings relating to the appeal have been
exhausted.
Subdivision 4. Collection of t�ie �'ee. The franchise fee shall be payable quarterly, and
shall be based on the amount collected by cor,npany during cc�mplete 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 follov�✓ang the period for which payment is made.
The franchise fee may be changed by ordinance fi time to tame, however, each change shall meet the
same notice requirements and not occur mare often than annually and no change shall require a
collection from any customer far metered service in excess of the amounts specifically permitted by this
Section 9. 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. No franchise fee shall by payable
by Company if Company is legally unable to fi�st collect an amount equal to the franchise free 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 ba5ed upon the surcharge billed subject to
subsequent reductions to account for uncollectibles, refuncis and corrections of erroneous billings.
Company agrees to make its records availabl� for inspectiora 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 customear or customers or any other information
regarding identified customers.
Subdivision 5. Condition of the Fee. The separate ordinance imposing the fee shall not
be effective against Company unless it lawfuliy imposes and the City quarterly or more often collects
a fee or tax of the same or greater equivalent amount on the re�eipts from the sales of energy within the
City by any other energy supplier, provided that, as to 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 col�ected as a franchise fee from each similar customer, or by
comparing, as to similar customers, the percentage of the annual bill represented by the amount collected
for franchise fee purposes. The franchise fee or tax shall be applicable to energy sales for any energy
use related to heating, cooling, or lighting, as well as to the supply of energy needed to run machinery
and appliances on premises located within or adjacent to the C�ty, but shall not apply to energy sales for
the purpose of providing fuel for vehicles.
Subdivision 6. Permitted Ad�ustments. If �'o1loNVing the �ffective date of a separate
ordinance as described in Subdivision 9.2 the Commission by Final Order approves a change in
Company's electric rates resulting in a general rate increase for �ne or more Customer Classifications,
ORDINANCE NO. 97-Q�
Company shall calculate and send to the City a letter setting forth the amount, as a percentage, or
authorized increase for each classification of customer within sixty (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 the separate ordinance to 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 and adding the resultant amount to the applicable 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 increase. During the period where the City
has imposed a franchise fee by separate ardinance under Subdivision 9.2 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 one or more 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.
Section 10. FRANCHISE REOPENER
If at any time after the date hereof, Company is collecting and paying a franchise fee
in two or more cities, in the seven-county metropolitan area, based on a franchise ordinance adopted by
such cities after the date of this franchise agreement, and in which cities Company was not paying a
franchise fee in February, 1997, the City may give Company IeTotice to amend this franchise agreement
to authorize collection of a franchise fee substantively identical to the franchise fee being collected in
two or more cities identified in the Notice. If Company refuses to do so within 90 days after receiving
said Notice from the City, the City may terminate this franchise agreement upon 30 days prior written
Notice unless Company gives Notice to the City within said 30-day period that it will immediately agree
to accept an amendment of this ordinance authorizing collection of a fee under this franchise agreement
on the same terms and conditions and in an amount not exceeding the fee being collected in two or more
cities referenced in the City's Notice. In addition, after this franchise agreement has been in effect for
10 years, the City may give Company Notice that it desires to aanend the franchise to incorporate specific
provisions which Company has agreed to in the franchise for two or more other cities of the second,
third, or forth class in the seven-county metropolitan area, based on a franchise ordinance adopted by
such cities after the date of this franchise agreement, which cities are identified in the Notice. If
Company refuses to do so within 90 days after receiving said Notice from the City, the City may
terminate this franchise upon 30 days prior written notice unless the Company within that time provides
Notice to the City that it will immediately agree to accept an amendment to this Ordinance incorporating
the desired franchise provisions existing in two or more other cities as referenced in the City's Notice.
Section 1 l. PROVISIONS C)F ORDINANCE.
Subdivision 1. Severabilitv. Every section, provision, or part of this Ordinance is
declared separate from every other section, pro�rision, or part; �nd if any section, provision, or part shall
be held invalid, it shall not affect any other section, provision, or part. Where a provision of any other
City ordinance conflicts with the provisions of this Ordinance, the provisions of this Ordinance shall
prevail.
ORDINANCE NO. �7-OQ
5ubdivision 2. Limitation on Annlicabilitv. This Ordinance constitutes a franchise
agreement between the City and Company as the only parties and no provision of this franchise shall in
any way inure to the benefit of any third person (including the public at large) so as to constitute any
such person as a third party beneficiary of the agreement or of any one or more of the terms hereof, ar
otherwise give rise to any cause of action in any person not a party hereto.
5ection 12. 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 Company's written consent thereto with the City Clerk within
ninety (90) days after the effective date of the amendatory ordinance.
Section 12. REPEAL OF EXPIRED FRANCHISE ORDINANCE. Sections 9-201
through 9-213 of the Brooklyn Center City Ordinances are hereby repealed.
Section 13. EFFECTIVE DAT'E. This ordinance shall be effective after adoption and
thirty days following its legal publication.
Adopted this 9t1� day of J��ne 1997.
��%���1
Mayor Q
ATTEST:
City Clerk
Date of Publication June l�i, 1997
I Effective Date July 1$, 1�97
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