Ord 463 Electric Franchise Agr XcelELECTRIC FRANCHISE ORDINANCE
ORDINANCE NO. 463
CITY OF MENDOTA HEIGHTS, DAKOTA COUNTY, MINNESOTA
AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY, A
MINNESOTA CORPORATION, D/B/A XCEL ENERGY ITS SUCCESSORS AND
ASSIGNS, PERMISSION TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN IN
THE CITY OF MENDOTA HEIGHTS, 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 GROUNDS AND PUBLIC WAYS OF THE CITY FOR SUCH PURPOSES.
THE CITY COUNCIL OF THE CITY OF MENDOTA HEIGHTS, DAKOTA COUNTY,
MINNESOTA, ORDAINS:
SECTION 1. DEFINITIONS.
For purposes of this Ordinance, the following capitalized teens listed in alphabetical order
shall have the following meanings:
1.1 City. The City of Mendota Heights, County of Dakota, State of Minnesota.
1.2 City Utility System. Facilities used for providing non -energy related public utility
service owned or operated by 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, which 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, d/b/a Xcel
Energy its successors and assigns.
1.5 Electric Facilities. Electric transmission and dist ibution towers, poles, lines, guys,
anchors, conduits, fixtures, and necessary appurtenances owned or operated by Company for the
purpose of providing electric energy for public use.
1.6 Notice. A written notice served by one party on the other party referencing one or
more provisions of this Ordinance. Notice to Company shall be mailed to the General Counsel, 414
Nicollet Mall, 5th Floor, Minneapolis, MN 55401. Notice to the City shall be mailed to the City
Administrator, City Hall, 1101 Victoria Curve, Mendota Heights, MN 55118. Either party may
change its respective address for the purpose of this Ordinance by written notice to the other party.
Ordinance 463 Page 1
1.7 Public Ground. Land owned by the City for park, open space or similar purpose,
which is held for use in common by the public.
1.8 Public Way. Any street, alley, walkway or other public right-of-way within the City.
SECTION 2. ADOPTION OF FRANCHISE.
2.1 Grant of Franchise. City hereby grants Company, for a period of 20 years from the
date passed and approved by the City, 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 adjusted in the future. For these purposes, Company may
construct, operate, repair and maintain Electric Facilities in, on, over, tinder and across the Public
Grounds and Public Ways 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.
2.2 Effective Date; Written Acceptance. This franchise agreement shall be in force and
effect from and after passage of this Ordinance, its acceptance by Company, and its publication as
mg -tilted by law. The City by Council resolution may revoke this franchise agreement if Company does
not file a written acceptance with the City within 90 days after publication.
2.3 Service and Rates. 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.
2.4 Publication Expense. The expense of publication of this Ordinance will be paid by
City and reimbursed to City 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 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 medin tor. 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 medintor, either party may commence an action in District Court to interpret and enforce this
franchise agreement 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.
SECTION 3. LOCATION, OTHER REGULATIONS.
3.1 Location of Facilities. Electric 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 previously installed therein.
Ordinance 463 Page 2
Electric Facilities shall be located on Public Grounds as detertnined by the City. Company's
construction, reconstruction, operation, repair, maintenance and location of Electric Facilities shall be
subject to permits if required by separate ordinance and to other reasonable regulations of the City to
the extent not inconsistent with the terms of this franchise agreement. Company may abandon
underground Electric Facilities in place, provided at the City's request, Company will remove
abandoned metal or concrete encased conduit interfering with a City improvement project, but only to
the extent such conduit is uncovered by excavation as part of the City improvement project.
3.2 Field Locations. Company shall provide field locations for its underground Electfic
Facilities within City consistent with the requirements of Minnesota Statutes, Chapter 216D.
3.3 Street Openings. Company shall not open or disturb any Public Ground or Public
Way 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. 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 any Public Ground or Public Way 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.
3.4 Restoration. After undertaking any work requiring the opening of any Public Ground
or Public Way, 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 one year
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 Ground or Public Way 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 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
remedy available to the City for noncompliance with this Section 3.4, but the City hereby waives any
requirement for Company to post a construction performance bond, certificate of insurance, letter of
credit or any other form of security or assurance that may be required, under a separate existing or
future ordinance of the City, of a person or entity obtaining the City's permission to install, replace or
maintain facilities in a Public Way.
3.5 Avoid Damage to 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.
3.6 Notice of Improvements. The City must give Company reasonable notice of plans for
improvements to Public Grounds or Public Ways 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 Grounds and Public Ways 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 Ground or Public Way is involved, the order in which
Ordinance 463 Page 3
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 Shared Use of Poles. Company shall make space available on its poles or towers for
City fire, water utility, police or other City facilities upon terms and conditions acceptable to Company
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.
SECTION 4. RELOCATIONS.
4.1 Relocation of Electric Facilities in Public Ways. If the City determines to vacate a
Public Way for a City improvement project, or at 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, it may order
Company to relocate its Electdc Facilities located therein if relocation is reasonably necessary to
accomplish the City's proposed public improvement. Except as provided in Section 4.3, Company
shall relocate its Electric Facilities at its own expense. The City shall give 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, 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 or other City improvement.
4.2 Relocation of Electric Facilities in Public Ground. City may require Company at
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 to the existing or
proposed public use of the Public Ground.
4.3 Projects with Federal Funding. City shall not order Company to remove or relocate
its Electric Facilities when a Public Way is vacated, improved or realigned for a right-of-way project
or any other project 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 are first paid to
Company. The City is obligated to pay Company only for those portions of its relocation costs for
which City has received federal funding specifically allocated for relocation costs in the amount
requested by the Company, which allocated funding the City shall specifically request. Relocation,
removal or rearrangement of any Company Electric Facilities made necessary because 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 fights herein granted to Company are valuable
rights.
Ordinance 463 Page 4
4.4 No Waiver. The provisions of this franchise apply only to facilities constructed in
reliance on a franchise from the City and shall not be construed to waive or modify any rights obtained
by Company for installations within a Company right-of-way acquired by easement or prescriptive
tight before the applicable Public Ground or Public Way was established, or Company's rights under
state or county permit.
SECTION 5. TREE TRIMMING.
Company may trim all trees and shrubs in the Public Grounds and Public Ways of City to the
extent Company finds necessary to avoid interference 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 pen -nit or other reasonable regulation
by the City.
SECTION 6. INDEMNIFICATION.
6.1 Indemnity of 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 Grounds and Public Ways. 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 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 and 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.
SECTION 7. 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 Electtic Facilities, shall not operate to deprive Company of its fights 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.
Ordinance 463 Page 5
SECTION 8. 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.
SECTION 9. FRANCHISE FEE.
The City at the time of adopting this franchise agreement does not desire to require the
Company collect a franchise fee from its customers in the City. At a future date during the tem) of
this franchise agreement, the City may require Company to collect a franchise fee in accordance with
applicable law. If so, the City may give Company Notice to amend this franchise agreement to
authorize collection of a franchise fee by separate ordinance in an amount and upon such terms and
conditions as Company at that time is willing to incorporate in its electric franchise agreements with
other cities. Upon receipt of such Notice Company shall negotiate in good faith with City to so
amend this franchise agreement.
SECTION 10. PROVISIONS OF ORDINANCE.
10.1 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.
10.2 Limitation on Applicability. 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,
or otherwise give rise to any cause of action in any person not a party hereto.
Ordinance 463 Page 6
SECTION 11. AMENDMENT PROCEDURE.
Either party to this franchise agreement may at any time propose that the agreement be
amended to address a subject of concern and the other party will consider whether it agrees that the
amendment is mutually appropriate. If an amendment is agreed upon, 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 90 days after the date of final passage by the City
of the amendatory ordinance.
SECTION 12. PREVIOUS FRANCHISES SUPERSEDED.
This franchise supersedes any previous electric franchise granted to Company or its
predecessor.
Passed and approved: November 18, 2014.
Attest:
City Clerk
Date Published: ic:;?c2014--
Page 7
Ordinance 463
ACCEPTANCE OF ORDINANCE NO. 463
CITY OF MENDOTA HEIGHTS, DAKOTA COUNTY, MINNESOTA
ACCEPTANCE OF ELECTRIC FRANCHISE:
WHEREAS, the City Council of the City of Mendota Heights, Dakota County,
Minnesota, on the 18th day of November, 2014, passed and adopted Ordinance No. 463, entitled:
AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY, A
MINNESOTA CORPORATION, D/B/A XCEL ENERGY ITS SUCCESSORS AND
ASSIGNS, PERMISSION TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN
IN THE CITY OF MENDOTA HEIGHTS, 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 GROUNDS AND PUBLIC WAYS OF THE
CITY FOR SUCH PURPOSES.
which Ordinance was duly published according to law on the 7th day of December, 2014, in the
South-West Review, a newspaper circulated in and serving as the legal newspaper for the City of
Mendota Heights, Dakota County, and State of Minnesota, and which Ordinance is not effective
unless accepted in writing by Northern States Power Company, a Minnesota corporation.
NOW THEREFORE, Northern States Power Company, a Minnesota corporation for
itself and its successors and assigns, does hereby accept all the terms and conditions of said
Ordinance.
IN WITNESS WHEREOF, Northern States Power Company, a Minnesota corporation
has caused this document to be executed in its corporate name by its duly authorized persons and
its corporate seal to be hereto affixed this 29th day of January, 2015.
Q?;DQ,PO/.j,9 Fn
Attest: ii o m
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o.U-,
IVES��P
Tara Heine
Assistant Corporate Secretary
Northern States Power Company, a Minnesota
corporation
UZI/
By:
trick V. Cline
Director, Community Relations