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City Council Ordinance 500CITY OF MONTICELLO, WRIGHT COUNTY, MINNESOTA ORDINANCE NO. 500 GAS FRANCHISE ORDINANCE--CENTERPOINT ENERGY AN ORDINANCE GRANTING CENTERPOINT ENERGY RESOURCES CORP., d/b/a CENTERPOINT ENERGY MINNESOTA GAS ("CENTERPOINT ENERGY"), ITS SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN A GAS DISTRIBUTION SYTEM INCLUDING NECESSARY GAS MAINS, PIPES AND EQUIPMENT FOR THE TRANSPORTATION, DISTRIBUTION AND SALE OF GAS 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 MONTICELLO ORDAINS: SECTION 1. DEFINITIONS. For purposes of this Ordinance, the following capitalized terms shall have the following meanings: 1.1. City. The City of Monticello, County of Wright, State of Minnesota. 1.2. City Utility System. Facilities used for providing public utility service owned or operated by the City or agency thereof. 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 Commission. 1.4. Company. CenterPoint Energy Resources Corp., d/b/a CenterPoint Energy Minnesota Gas ("CenterPoint Energy"), its successors and assigns, including successors to assignees of those portions of the Company that constitute any part or parts of the Gas Facilities subject to this franchise. 1.5. Effective Date. The date on which the ordinance becomes effective under Section 2.2. 1.6. Gas. Natural gas, manufactured gas, mixture of natural gas and manufactured gas or other forms of gas energy. 1.7. 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, but not including any gas manufacturing, processing or storage facilities. 1.8. Notice. A writing served by a party or parties on another party or parties. Notice to Company must be mailed to: CenterPoint Energy Minnesota Division Vice President 800 LaSalle Avenue Minneapolis, MN 55402 Notice to City must be mailed to: City of Monticello 505 Walnut Avenue, Ste 1 Monticello, Minnesota 55362-8822 1.9. Public Way. Any street, alley or other public right-of-way within the City as defined in Minn. Stat. § 237.162, Subd. 3. 1.10.Public Ground. Land owned or otherwise controlled by the City for parks, open space or other public purposes, which is held for use in common by the public. SECTION 2. FRANCHISE. 2.1 Grant of Franchise. The City grants the Company, for a period of ten (10) years from the Effective Date, the right to import, 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 (i) manufactured by the Company or its affiliates and delivered by the Company, (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, 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 state law, this ordinance and to provisions of other city right-of-way ordinances including permit and fee requirements, as the same may be amended, supplemented or replaced. The Company shall be notified sixty (60) days in advance of any adoption of, or proposed changes to, any City ordinance regulating its Public Ways or modifying permit or fee requirements of the Company. The service to be provided and the rates to be charged by Company for gas service in the City are subject to the jurisdiction of the Commission. 2.2 Effective Date. This franchise is effective upon passage and publication as required by law and its acceptance by the Company. Written acceptance or rejection of the franchise by the Company must be filed with the City Clerk within sixty (60) days after written submission of a draft of this ordinance to the Company. 2.3 Non exclusive Franchise. This ordinance does not grant an exclusive franchise. 74 2.4 Legal Fees. Each party is responsible for its own legal fees incurred related to granting of this franchise. 2.5 Publication Expense. The expense of publication of this ordinance must be paid by the Company. 2.6 Default: Dispute Resolution. If the City or 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 thirty (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 thirty (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. 2.7 Continuation of Franchise. If this franchise expires and the City and the Company are unable to agree on the terms of a new franchise, the existing franchise will remain in effect until a new franchise is agreed upon, or until ninety (90) days after the City or the Company serves written Notice to the other party of their intention to allow the franchise agreement to expire. SECTION 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. The Company is not required to use Public Grounds or Public Ways exclusively for the location of its Gas Facilities, but is subject to all other police power regulations for other locations within the City. Gas Facilities may 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 any permit requirements and other reasonable regulations required by other ordinances and regulations of the City. 3.2 Field Location. Upon request by the City, the Company must provide field locations for any of its Gas Facilities within the period of time required by Minnesota State Statute 216D. Subject to the Homeland Security Act or other applicable laws protecting confidential or proprietary information, the Company must promptly provide mapping information for any of its underground Gas Facilities and shall otherwise in all respects comply with Minnesota rules Parts 7819.4000 and 7819.4100. 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 irrespective of any franchise fee imposed pursuant to Section 7. Company will comply with all permit conditions established by the City. The permit conditions and fees imposed on the Company may not be more burdensome than those imposed on other utilities for similar facilities or work, however, when establishing permit fees, the City may take into account the renewal dates of existing franchises and whether the Company is also paying a franchise fee to the City. 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. Within two (2) business days after commencing the repair, the Company must apply for any required permits and pay the required fees. Except in the case of emergency work, work undertaken without a permit by the Company or its agents shall be subject at the discretion of the City to a penalty in the amount of twice the established permit fees in addition to any other remedy or penalty specified or allowed in City Code or State Rules. 3.4 Restoration. After completing work requiring the opening of a Public Way or Public Ground, the Company must restore the same, including paving and its foundation, to the condition specified in the permit which must not be inconsistent with Minnesota Rules 7819.1100, and maintain the restored areas in good condition for one (1) year 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 less than 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. This remedy is in addition to any other remedies available to the City for noncompliance with this section. In all other aspects, Company shall comply with the terms of Minnesota Rules 7819.1100 for restoration of Public Ways and Grounds, and Minnesota Rules 7819.3000 and 7819.0100. 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 or 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 and the City will comply with all applicable laws and codes when performing work near the Gas Facilities. 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 improvements. The notice must contain; (i) the nature and character of the improvements, (ii) the 4 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 SECTION 4. RELOCATIONS. 4.1. Relocation of Gas Facilities. Relocation of Gas Facilities in Public Ways shall be subject to Minnesota Rules, part 7819-3100 and any applicable City right-of-way ordinances consistent with law. The City may require the Company at Company's expense to relocate or remove its Gas Facilities from Public Grounds upon a finding that the Gas Facilities have become or will become a substantial impairment to the existing or imminent public use of the Grounds. 4.2 Vacation of Public Ways. The City must give the Company at least two weeks written Notice of the proposed vacation of a Public Way. The City and the Company shall comply with Minnesota Statute §160.29 and Minnesota Rules, 7819-3200 and applicable right-of-way City ordinances consistent with law. 4.3 Projects 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 Minnesota Statutes, Section 161.46 if funds for these purposes are available. SECTION 5. DEFENSE AND INDEMNIFICATION. 5.1 Terms. The Company shall indemnify, keep and hold the City, its elected officials, officers, employees, and agents free and harmless from any and all claims and actions on account of injury or death of persons or damage to property occasioned by the construction, maintenance, repair, removal, on or across the Public Ways and the Public Grounds. The City will not be indemnified for losses or claims alleged to be the result of negligence of the City, its elected officials, employees, officers, or agents, except for those arising out of the issuance of permits for, or inspection of the Company's plans or work. The City shall not be entitled to reimbursement for its costs incurred prior to notification to the Company of claims or actions and a reasonable opportunity for the Company to accept and undertake the defense. 5.2 Litigation. If such a suit is brought against the City under circumstances where the agreement in this 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. SECTION 6. SUCCESSORS IN INTEREST. 6.1 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. SECTION 7. FRANCHISE FEE. 7.1 Separate Ordinance. The City reserves all rights under Minnesota Statutes, §21613.36, §30113.01 or other law to require a franchise fee at any time during the term of this franchise. The franchise fee must be imposed by a separate ordinance adopted by the City Council, which ordinance may not be adopted until at least sixty (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 sixty (60) days after Notice enclosing the adopted ordinance has been served upon the Company by certified mail. SECTION 8. LIMITATION ON APPLICABILITY. 8.1 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. SECTION 9. PREVIOUS FRANCHISES SUPERSEDED. 9.1 Previous Franchises superseded. This franchise supersedes and replaces previous franchises granted to the Company or its predecessors, including but not limited to Ordinance Number 83-03. SECTION 10. AMENDMENTS. 10.1 Amendments. 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 provision of the amendment, which amendatory ordinance shall become effective upon the filing of the Company's written consent thereto with the City Clerk within 60 days after the effective date of the amendatory ordinance. SECTION 11. SEVERABILITY. 11.1 Severability. If any portion of this franchise is found unenforceable for any reason, the validity of the remaining provisions will not be affected. Adopted this 8thday of June , 200_ by the City Council of the City of Monticello, Minnesota. ATTEST: ..y City of Monticello, City Clerk 7 CITY OF MONTICELLO r-," ;W. /�� City of Monticello, Mayor