ERMUSR HANDOUT #1 04-09-2013 ORDINANCE NO. 13-
CITY OF ELK RIVER, MINNESOTA
AN ORDINANCE OF THE CITY OF ELK RIVER GRANTING TO ELK RIVER
MUNICIPAL UTILITIES, A MINNESOTA MUNICIPAL UTILITY, ITS
SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO
CONSTRUCT, OPERATE, REPAIR AND MAINTAIN IN THE CITY OF ELK RIVER,
MINNESOTA, AN ELECTRIC DISTRIBUTION SYSTEM AND TRANSMISSION
LINES, INCLUDING NECESSARY POLES, LINES, FIXTURES AND
LINES,
APPURTENANCES, FOR THE FURNISHING o ELECTRIC ENERGY TO A
PORTION OF THE CITY, ITS INHABITANTS, A THERS, AND TO USE THE
PUBLIC WAYS AND PUBLIC GROUNDS OF THE CITY FOR SUCH PURPOSES;
AND PRESCRIBING CERTAIN TERMS CONDITIONS THEREOF.
THE CITY COUNCIL OF THE CITY OF ELK RIVER, MINNESOT'fA,DOES FIND AND
ORDAIN, AND THE CITY CODE OF ORDINANCES IS HERS * REVISED TO
INCLUDE,THE FOLLOWING:
SECTION 1. DEFINITIONS Fo ,purpposes of this Ordinance, the following capitalized terms
listed in alphabetical order shall have the following meanings:
City. The City of Elk]liver, County of 6herbumet State of Minnesota and the corporate limits
thereof on the Effective.,.!%e and as they may be adjusted front to tune to time hereafter.
City Utility System. facilities used for providing public utility service owned or operated by
the City or agency thereof tndurlln rsewer,storm sewer;water service,street lighting and traffic signals.
Company. Elk River Municipal Utiltnes ( ML ),a Minnesota Municipal Utility,its successors
and assign'siincluding all successors orassignees that own or operate any part or parts of the Electric
Facilities ftkilielc.t to this Franchise.
Company;,Service Area. Those areas within the City to which the Company has been assigned
the right to provide'electric service;as in effect on the Effective Date or as may be hereafter revised.
Council. The City Council of the City of Elk River as from time to time constituted.
Effective Date. The effective date of this Ordinance.
Electric Facilities. Electric transmission and distribution substations, towers, poles, lines,
guys, anchors, conduits, fixtures, and necessary appurtenances owned or operated by the Company for
the purpose of providing electric energy for public or private use.
Franchise. The grant of rights made by the City to the Company in this Ordinance, subject to
its terms and conditions.
1
Notice. A writing served by any party or parties on any other party or parties at the following
addresses:
If to the City: City Administrator
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
If to the Company: General Manager
Elk River Municipal Utilities
13069 Orono Parkway 41,i'
Elk River,MN 55330 ""
yI AAA`
Any party may change its respective address for the purpose=of this Ordinance by written notice to the
other parties. `Yx=.
Person. A natural person or any partner , joint venture, corpoton, cooperative, limited
liability company or any public corporation, political is ibdivisionTor agency oftbe State or any other
legal entity that may be created by law. c' ae g
%Mi.
Public Ground. All real proper4)owned by or dedicated to the City with respect to which the
City holds the legal right or tide to giant orb iihhold eases `nt, leasehold or occupancy rights or
servitudes. -"` - 'x
4
3 ,211;%*....
Public Way yfstreet,alley and otherpublic�rights-s way within the City.a 3 AF t tf*.<3n x,�x:::
Utility. Tran§ ttting, g, ttanspo tang, distributing, delivering, selling, receiving,
importing, manufacturing, r cause -tole produce ansmitted, furnished, transported, delivered,
sold,receive", po�l4 or ma ed,elec c energyanatural gas, mixed gas,heat,light,power, and
services la 'deed through a cable.communication system
thin), Service Provider. Any Person who performs any one or more of the activities of a
Utility to or for, he public or to of or any o e or more persons within the corporate limits of the City.
4y
SECTION 2. THE FRANCHISE.nz
ve:2.1. Grant ofFranclttse. The City hereby grants the Company, for a term of twenty (20)
years from the effective date oftl is Ordinance, the right to transmit and furnish electric energy for any
public or private use within and through the Company Service Area. For these purposes, the Company
may construct, operate, repair and maintain Electric Facilities in, on, over, under and across the Public
Ways and Public Grounds within the Company Service Area, subject to the provisions of this
Ordinance. The Company may do all reasonable things necessary or customary to accomplish these
purposes, subject however, to all applicable design and safety codes, the provisions of this Ordinance,
zoning ordinances, other applicable ordinances, permit procedures and the customary and necessary
practices of the City.
2.2 Not Exclusive. This Franchise is not exclusive.
2
2.3. Effective Date. This Franchise shall be in force and effect from and after the
adoption of this Ordinance and publication as required by law and upon the Company's duly
authorized acceptance as provided in Section 12 below.
SECTION 3. LOCATIONS: CONSTRUCTION;OTHER REGULATIONS.
3.1. General. Electric Facilities shall be located, constructed and maintained by the
Company: (i) in as safe and secure a condition or manner as reasonably possible, (ii) so as not to
interfere with the safety and convenience of ordinary travel along and over Public Ways, and (iii) so as
not to disrupt or interfere with the normal use or operation of any Ways, Public Ground or the
City Utility System. Electric Facilities may only be located on Pgbhe„Ground as determined by the City
in its sole discretion. The Company's construction, reconsticcion, operation, repair, maintenance,
location and relocation of Electric Facilities shall be subject tt d kterms of this Ordinance and such
other regulations of the City consistent with authority granted the City.to manage its Public Ways and
Public Grounds under state law,to the extent not inc
QorYsistent with a specific term of this Ordinance.
3.2. Construction; Maintenance; Repairs. Whenever the Coln'pany desires to open or
disturb any Public Way or Public Ground for the}purpose of constructing, raining, or repairing
Electric Facilities, it shall give the City reasonable ad xance Noie;y but not less tha.xwten (10) business
days,by filing a written Notice with the Cify Clerk. In any caserthe Company shall riot commence such
work before obtaining a permit pursuant;to Article 66 of the ;Elk River City Code, for which the City
may impose a reasonable fee. The Company shall;not, during>t �progress of the work, endanger or
unnecessarily obstruct the passage of traffic-or the normal and customary use of the Public Ways and
Public Ground. During the progress of such'work, the Company shall'keep the affected Public Ways
or Public Ground gua;ded"in order to avoid accidents to pe5o.ns or property. All work performed by
the Company shall comply with all applicable federal state,and local laws,rules,and regulations.
3.3 Emergencies. The requirements ;fpn obtaining permits from the City pursuant to
Section 5 2 shall.not apply if(i) an emergency gi sts regpupng the immediate repair of Electric Facilities
and (n) the Company•gives,telephone,notice to tJ e City before,if reasonably possible, commencement
of the emergency repair. Within two (2) business days after commencing the repair, the Company shall
apply for anyAequired permits>and pay any required fees.
3.4. 'Restoration. Following the completion of any work, the Company shall promptly and
diligently restore the affected PubltcWays and/or Public Ground to as good a condition as before the
work commenced. If the Company fails to promptly restore such Public Ways and/or Public Ground
within ten (10) days of I'Iottce„by'the City, the City may engage an independent contractor at the
expense of the Company toop'erform the restoration of the Public Ways and/or Public Ground as
required under this Section. The Company shall pay to the City upon demand the cost to the City of
affecting such restoration including the City's administrative expenses and overhead.
3.5. Avoidance of Damage. The Company must take reasonable measures to prevent the
Electric Facilities from causing damage to persons or property. The Company must take reasonable
measures to protect the Electric Facilities from damage that could be inflicted on the Electric Facilities
by persons, property, or the elements. The Company must take protective measures when the City
performs work near the Electric Facilities, if given reasonable Notice by the City of such work prior to
its commencement.
3
3.6. Field Locations. The Company shall provide field locations for all its underground
Electric Facilities within the city consistent with the requirements of Minnesota Statutes, chapter 216D
(commonly known as of the Effective Date as the"Gopher State One Call" system).
3.7. Shared Use of Poles; Street Lights. The Company shall make space available on its
poles or 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 the Company or the existing facilities, if any, of
another Utility Service Provider. Street name signs, "no parking" signs and other traffic control signs,
as requested and provided by the City, may be installed on the electric and street light poles within the
Company Service Area. No rental fee or other charge shall be,..ayable by the City for this use;
provided,however, that the City will reimburse the Company its W '; 'and p y , 'and reasonable costs incurred by
the Company in accommodating such use. The installation and ,cement of any of the foregoing shall
comply with the National Electric Safety Code. 's4
app`"`"_t
3.8. Tree Trimming. Subject to such. rocedures re g ation and supervision as the
Council may establish, the Company may, at it sit"trim all trees anat 7. bs in the Public Ways
located within the Company Service Area to " extent the Company`= ,i it necessary to avoid
interference with the proper construction, operation,repair and maintenance o y of the Company's
Electric Facilities installed or maintained hereunder. `x �. a ;` ;,
3.9. Notice of City Impro Venom The City..g ive the Company reasonable advance
Notice of plans for improvements to Pti S c Ways and Public>round in the Company Service Area
where the City has reason to believe that the^Cotiiiit lectnc`fi ties may affect or be affected by
such improvements. Theat4igzwill contain; (i' the Sr 0410 character of the improvements, (ii) the
Public Ways and/or Public Grounddupon whit the:, rove eats are to be made, (iii) the extent of
the improvements, (iv) he tune when he City will 4spthe world (v)if more than one Public Way
or parcel of Public Ground l is involve the order in which the work is to proceed.
SECTION.ELECTRIC FACILITIES i ELOC 'T ION.
Stir--- 4,;x4,,,, "3', �..q� cgs.*�r . '.. .
4•1. Relocation In then event the City reasonably determines that it is necessary for the
Company * ove any part ofits,Electric Facilities because the City has determined to change,move or
improve itsM`Public Ways or that the Electric Facilities have become or will become a substantial
impairment to'-the existing or imminent public use of Public Ground, upon reasonable Notice by the
City to the Company, then the Company will move its Electric Facilities at its sole cost. The City shall
consider reasonable alteratives in designing its public works projects so as not to arbitrarily cause the
Company unreasonable'additional expense in exercising its authority under this Section 6.1. This
5 qu'
Section 6.1 shall not constitute--taking by the City nor be construed as a waiver or modification of any
easement or prescriptive rights acquired by the Company independent of and without reliance by the
Company on this Franchise.
4.2. No Release of Liability. Nothing contained herein shall relieve any third party from
liability arising out of their failure to exercise reasonable care to avoid injuring the Company's Electric
Facilities while performing any work connected with grading, regarding or changing the line of any
Public Way or with any construction on or adjacent to any Public Way;provided, however, this Section
6.2 shall not limit the City's rights to indemnification under Section 7.1 nor shall the City in any way be
liable to the Company for claims arising from the negligence of any third party.
4
SECTION 5. INDEMNIFICATION.
5.1. Indemnification. If at any time any claim of any kind is made against the City for
injury to persons or property arising from the acts or failure to act by the Company,its agents, servants,
or employees in connection with the operations of the Company under and pursuant to this Franchise,
the Company shall fully indemnify,defend and hold harmless the City,its agents, servants or employees
from any and all such claims, including, but not limited to, reimbursement of any reasonable attorneys'
fees and costs and expenses the City may incur in handling, denying, or defending such claims. The
Company's obligation to indemnify the City shall not extend to any injury to persons or property caused
by the negligent act or failure to act by the City or any actions taken by the Company pursuant to
directions of the City if performed within the scope of the City'sactions without negligence by the
Company. The City shall determine who will defend any such;claims arising under this Section 6.1 and
the Company will thereafter have complete control of such litigatipu;provided,however, the Company
may not settle any such claims without the prior approval"of the city, which approval will not be
unreasonably withheld. This Section is not, as to thirdlparties, a warner:of any defense or immunity
otherwise available to the City; and the Company;in,defending any action_shall be entitled to assert
every defense or immunity that the City could;iself assert in its own behalf The Company's
obligations under this Section shall survive theF,'exxpiration, amendment, trx-termination of this
Ordinance.
5.2. Insurance. Before the'Rffecnve Date, the Company shall furnish the City a summary
of insurance, if any, carried by the Company, or of its self-msureil_status, in either case demonstrating
adequate protection to the City from any and all obligations, liabilities, or claims of any nature
whatsoever,growing out of the operation,construction,and maintenance.of its Electric Facilities within
the City. The Company,-shall maintain such insurance.coverage;;atiall times during this Franchise.
5.3. Compliance with Laws; Hazardous Substances. In its operation under this
Ordinance, the Company shalt observe allfederal, state'and local laws,rules,regulations and orders with
respect to the rranszlussion d' tnb'rhtion, transformation or furnishing of electric energy and the
handling.of materials`, suhstances and_wastes deemedtoxic or hazardous to health, natural resources or
the envirgpment (collectivelyx,"Hazardous Substances"). The Company shall remove or remediate any
Hazardous Substances locatedepn,ui or;surrounding its Electric Facilities or caused to be located on,in
or surrounding`the Public Ways and Pubk Grounds or elsewhere in the City in compliance with all
applicable laws,=regulations and"lawful government orders, and pay or cause to be paid all costs
associated therewith..,The indemnification terms and conditions of Section 6.1 shall apply to all claims
made against the City by any Person, including any governmental agency, who or which asserts any
right to costs, damages or other relief based upon the terms and conditions imposed upon the
Company under this Section 6.3 or which arise from or are related to the Company's acts or failure to
act in compliance with any law,rule,regulation or lawful order governing Hazardous Substances.
SECTION 6. VACATION OF PUBLIC WAYS. The City will consult with the Company at least
four (4) weeks prior to its action on any proposed vacation of a Public Way. Except where ordered
pursuant to Section 6.1, the vacation of any Public Way after the instillation of Electric Facilities shall
not operate to deprive the 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 the Company. However, in no case shall the City be liable to the Company for failure to
specifically preserve a Public Way in the exercise of its authority under Minnesota Statutes, Section
160.29.
5
SECTION 7. ABANDONED FACILITIES. The Company shall comply with City ordinances and
Minnesota Statutes, Section 216D.01 et seq., as they may be amended from time to time. The
Company shall maintain records describing the exact location of all abandoned and retired Facilities
within the City, produce such records at the City's request and comply with the location requirements
of Section 216D.04 with respect to all Electric Facilities, including abandoned and retired Electric
Facilities.
SECTION 8. FRANCHISE FEE.
8.1. Authority. The City reserves all rights under Minnesota Statutes, Sections 216B.36 and
301B.01 or other law to require a franchise fee at any time d, in e term of, and in consideration for,
this Franchise. The franchise fee may be expressed (i) as aaspecified charge per measurable unit of
electricity being provided, transported, transmitted, sold,' ft ished, elivered, or received within the
City, or (ii) as a percentage of the gross revenues received by the Conipaahv for its operations within the
City, or(iii) a flat fee per customer based on servtcg4Wetail customers within Witihothe City or on some other
similar basis, or (iv) in such other manner ox on as the City may de e. The method of
imposing the franchise fee may differ by customer>r ,ss, by type of Utility, by'pcular circumstances
of a Utility Service Provider, or by other relevant factor, d mAiSmbine the tries described in (i)
through (iv) above.
8.2. Separate Ordinance. AAfrranclusc3fee shall beyi posed by a separate ordinance duly
adopted by the Council after 60 days'nottceito comjfan .of the proposed fee.
SECTION 9. DEFAULTS If the Company shalt e tti Ault m'the performance of any of the
material terms and con itions of this:Ordinance`, dnshall continue;'in default for more than thirty (30)
days (or fails to initiate the;,cure of the ydefault within said period and diligently pursue said cure,if the
cure of the default cannot reasonably beiccomplish within said 30 days) after receiving Notice from
the City of uc1 e€ault, the City y�electjto e such lefault and charge the Company for the costs
thereof � r
SECTION 10 AMENDMENT PROCEDURE. The Company's rights hereunder are subject to
the police power of the City to adVopt and enforce ordinances necessary to the health, safety,and welfare
of the public, arid,this Franchtsemay be amended or repealed by the City as deemed necessary or
appropriate in the exercise of sucl power.
SECTION 11. GENERAL PROVISIONS OF ORDINANCE.
11.1. Governing Law. This Franchise is granted and is intended to be performed in the
State of Minnesota and shall be construed and enforced in accordance with the laws of the State of
Minnesota. The Company shall be subject to personal jurisdiction in the State of Minnesota. All
actions related to this Ordinance or its enforcement shall be venued in Sherburne County District
Court.
11.2. Limitation on Applicability. This Ordinance constitutes a franchise between the City
and the 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
6
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.
11.3. Assignment. The Company may assign this Franchise without the prior approval of,
but upon not less than thirty (30) days' prior Notice to, the City. Such Notice shall include the identity
of and contact information for, the assignee and the statement of the assignee's plans and intentions for
the operation of the Electric Facilities under this Franchise.
SECTION 12. ACCEPTANCE BY THE COMPANY.
12.1. Acceptance by the Company. The Company shall, within thirty (30) days after
adoption of this Ordinance or any amendment thereto, file witktte City Clerk in writing its acceptance
or rejection as provided in Section 12.2. If such acceptance;is boxt;;filed or if a rejection is filed within
said period,the Company,by its continuing operations, shall;be den4#to have accepted the terms and
conditions of this Franchise or any amendment hereto,except with respe. t to such partic>>lars as it may
successfully challenge under the procedures specified i'Section 12.2.
12.2. Rejection Procedures. A rejection of this Franchise or any amendment hereto may
be made by the Company only upon the grounds that.the e? s-'and conditions ereof or of such
amendment exceed the lawful authority of,the City undert"en Constitutions or Laws of the United
States or the State of Minnesota or are o therwise unlawful Any rejection shall be submitted in writing
to the City, stating with particularity the points and;authorities'of.law upon which the Company relies.
If the City fails to amend this Franchise oriotherwisesapsfy the Company's objections as stated within
thirty (30) days of its receipt of The Company's rejection,-the Companyshall have the right thereafter to
seek appropriate judicial'or administrative relief based,solelysupon these provisions it has alleged are
unlawful in its rejection notice. If the Company fail to°initiate such legal action within thirty (30) days
from the expiration of the aforementioned thirty (30 :day period provided for the City's amendment or
cure, the Company shall be deemed tolhave waived its objections and to have accepted the terms of this
Franchise or,any7amendment hereto
>z,
7
Adopted by the City Council of the City of Elk River this day of 2013.
John J. Dietz,Mayor
ATTEST:
Tina Allard,City Clerk
4
"
4.3L ii
41n Gi
4,T4 9
•Published on the day of Sik i 2013, in the El�fiver Star News, a paper of
general circulation within the City of Elk River ® esota. 4 ..
The provisions of the foregoing Ordinance are hereby accepted:
t ,,. ' roles,
a St
J
DATED 2013. 4 <
J4 2 b M KS
?t_A e,* TAR'
x B a
g
�� z ..1t5
411:
By:
>?: Its
8