ORD 13-07•[;k
THE CITY COUNCIL OF THE CITY OF ELK RIVER, MINNESOTA, DOES FIND AND
ORDAIN, AND THE CITY CODE OF ORDINANCES IS HEREBY REVISED TO
INCLUDE, THE FOLLOWING:
SECTION 1. DEFINITIONS. For purposes of this Ordinance, the following capitalized terms
listed in alphabetical order shall have the following meanings:
City. The City= of Ell-c River, County of Sherburne, State of Minnesota and the corporate limits
thereof on the Effective Date and as they may be adjusted from to time to time hereafter.
City Utility System. Facilities used for providing public utility service owned or operated by
the City or agency thereof, including sewer, storm sewer, water service, street lighting and traffic signals.
Company. Elk River Municipal Utilities (ERMU), a Minnesota Municipal Utility, its successors
and assigns including all successors or assignees that own or operate any part or parts of the Electric
Facilities subject: to this Franchise.
Company Service Area. Those areas within the City to which die 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
die 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.
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
Ell-, River Municipal Utilities
13069 Orono Parkway
Elk River, MN 55330
Any party may change its respective address for the purpose of this Ordinance by written notice to the
other parties.
Person. A natural person or any partnership, joint venture, corporation, cooperative, limited
liability cornpany or any public corporation, political subdivision or agency of the State or any other
legal entity that may be created by law.
Public Ground. All real property owned by or dedicated to the City with respect to which the
City holds the legal right or title to grant or withhold easement, leasehold or occupancy rights or
servitudes.
Public Way. Any street, alley and other public rights- of --'vay within the City.
Utility. Transmitting, furs isl- ing, transporting, distributing, delivering, selling, receiving,
importing, manufacturing, or causing to be produced, transmitted, funiished, transported, delivered,
sold, received, imported, or manufactured, electric energy, natural gas, mixed gas, heat, light, power, and
services provided through a cable communication system.
Utility Service Provider. Any Person who performs any one or more of the activities of a
Utility to or for the public or to or for any one or more persons within the corporate limits of the City.
SECTION 2. THE FRANCHISE.
2.1. Grant of Franchise. The City hereby grants the Company, for a term of twenty (20)
years from the effective date of this Ordinance, the right to transmit and furnish electric energy for any
public or private use within and through the Company Service Arm. 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. T its Franchise is not exclusive.
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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
autborized 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 die normal use or operation of any Public Ways, Public Ground or the
City Utility System. Electric Facilities may only be located on Public Ground as determined by the City
in its sole discretion. The Company's construction, reconstruction, operation, repair, maintenance,
location and relocation of Electric Facilities shall be subject to the terms of this Ordinance and such
other regulations of die City consistent widi authority granted the City to manage its Public Ways and
Public Grounds under state law, to the extent not inconsistent with a specific term of this Ordinance.
3.2. Construction; Maintenance; Repairs. Whenever the Company desires to open or
disturb any Public Way or Public Ground for the purpose of constructing, maintaining, or repairing
Electric Facilities, it shall give the City reasonable advance Notice, but not less than ten (10) business
days, by filing a written Notice with the City Clerk. In any case, the Company shall not commence such
work before obtaining a permit pursuant to Article 66 of tlhe Elk River City Code, for which the City
may impose a reasonable fee. The Company shall not, during the 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 guarded in order to avoid accidents to persons or property. All work performed by
die Company shall comply with all applicable federal, state, and local laws, rules, and regulations.
3.3 Emergencies. The requirements for obtaining permits from the City pursuant to
Section 5.2 shall not apply if (i) an emergency exists requiring the immediate repair of Electric Facilities
and (ii) tie Company gives telephone notice to the City before, if reasonably possible, commencement
of the emergency repair. Within two (2) business days after commencing the repair, the Company shall
apply for any required permits and pay any required fees.
3.4. Restoration. Following the completion of any work, the Company shall promptly and
diligently restore the affected Public Ways 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
-,vithin ten (10) days of Notice by the City, the City may engage an independent contractor at the
expense of the Company to perform the restoration of the Public Ways and /or Public Ground as
required under tlhis Section. Tlhe 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 die Electric Facilities from damage that could be inflicted on the Electric Facilities
by persons, property, or die elements. Tlie Company must take protective measures when the City
performs work near the Electric Facilities, if given reasonable Notice by tie City of such work prior to
its commencement.
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3.6. Field Locations. The Company shall provide field locations for all its underground
Electric Facilities widhu7 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 payable by the City for this use;
provided, however, that the City will reimburse the Company its actual and reasonable costs incurred by
the Company in accommodating such use. The installation and placement of any of the foregoing shall
comply with the National Electric Safety Code.
3.8. Tree Trimming. Subject to such procedures, regulation and supervision as the
Council may establish, the Company may, at its cost, trim all trees and shrubs in the Public Ways
located within the Company Service Area to the extent the Company finds it necessary to avoid
interference with the proper construction, operation, repair and maintenance of any of the Company's
Electric Facilities installed or maintained hereunder.
3.9. Notice of City Improvements. The City will give the Company reasonable advance
Notice of plans for improvements to Public Ways and Public Ground in the Company Service Area
where the City has reason to believe that the Company's Electric Facilities may affect or be affected by
such improvements. The Notice will contain: (i) the nature and character of the improvements, (ii) the
Public Ways and /or Public Ground upon which the improvements are to be made, (iii) the extent of
the improvements, (iv) the time when die City will start the work, and (v) if more than one Public Way
or parcel of Public Ground is involved, the order in which the work is to proceed.
SECTION 4. ELECTRIC FACILITIES RELOCATION.
4.1. Relocation. In the event the City reasonably determines that it is necessary for the
Company to move any part of its Electric Facilities because the City has determined to change, move or
improve its 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 alternatives in designing its public works projects so as not to arbitrarily cause the
Company Luhreasonable additional expense in exercising its authority under this Section 6.1. This
Section 6.1 shall not constitute a 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 Franclhise.
4.2. No Release of Liability. Nodhing 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 -,vita 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.
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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 CitS7 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's directions - 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 litigation; provided, however, the Company
may not settle any such claims without the prior approval of the City, "'vhich approval will not be
unreasonably withlaeld. 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 shall be entitled to assert
every defense or immunity that flze City could itself assert in its own behalf. The Company's
obligations under this Section shall survive the expiration, amendment, or termination of this
Ordinance.
5.2. Insurance. Before the Effective Date, the Company shall furnish the City a summary
of insurance, if any, carried by the Company, or of its self- insured 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 at all times during this Franchise.
5.3. Compliance with Laws; Hazardous Substances. In its operation under this
Ordinance, the Company shall observe all federal, state and local laws, rules, regulations and orders with
respect to the transmission, distribution, transformation or furnishing of electric energy and the
handling of materials, substances and wastes deemed toxic or hazardous to health, natural resources or
the environment (collectively, "Hazardous Substances "). Tlae Company shall remove or remediate any
Hazardous Substances located on, in or surrounding its Electric Facilities or caused to be located on, in
or surrounding the Public Ways and Public Grounds or elsewhere in the City in compliance with all
applicable laves, regulations and lawful government orders, and pay or cause to be paid all costs
associated therewith. Tlae indenuaification 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 die 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 installation 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 die Company for failure to
specifically preserve a Public Way in the exercise of its authority under Minnesota Statutes, Section
160.29.
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SECTION 7. ABANDONED FACILITIES. The Company shall comply with City= ordinances and
Minnesota Statutes, Section 21613.01 et seq., as they may be amended from time to tiine. 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.
8.1. Authority. The City reserves all rights under Minnesota Statutes, Sections 21613.36 and
30113.01 or other law to require a franchise fee at any time during the term of, and in consideration for,
this Franchise. The franchise fee may be expressed (i) as a specified charge per measurable unit of
electricity being provided, transported, transmitted, sold, furnished, delivered, or received witl-iii the
City, or (ii) as a percentage of the gross revenues received by the Company for its operations witl- in the
City, or (iii) a. flat fee per customer based on service to retail customers within the City or on some other
sin-Oar basis, or (iv) in such other maimer or fashion as the CityT may determine. The method of
imposing the franchise fee may differ by customer class, by type of Utility, by particular circumstances
of a Utility Service Provider, or by other relevant factor, and may combine the methods described in (i)
through (iv) above.
8,2. Separate Ordinance. A franchise fee shall be imposed by a separate ordinance duly
adopted by the Council after 60 days' notice to company of the proposed fee.
SECTION 9. DEFAULTS. If the Company shall be in default in the performance of any of the
material terms and conditions of this Ordinance, and shall continue in default for more than thirty (30)
days (or fails to initiate the cure of the default within said period and diligently pursue said cure, if the
cure of the default cannot reasonably be accomplished wid-iin said 30 days) after receiving Notice from
the City of such default, the City may elect to cure such default and charge the Company for the costs
thereof
SECTION 10. AMENDMENT PROCEDURE. The Company's rights hereunder are subject to
the police power of the City= to adopt and enforce ordinances necessary to the health, safety, and welfare
of the public, and this Franchise may be amended or repealed by the City= as deemed necessary= or
appropriate in the exercise of such 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 Nfirmesota. 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 die City
and the Company as the only parties and no provision of tEs Franchise shall in any way= inure to die
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.
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 with the City Clerk in tivritirig its acceptance
or rejection as provided in Section 12.2. If such acceptance is not filed or if a rejection is filed within
said period, the Company, by its continuing operations, shall be deemed to have accepted the terms and
conditions of this Franchise or any amendment hereto, except with respect to such particulars as it may
successfully challenge wader the procedures specified in 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 terms and conditions hereof or of such
amendment exceed the lawful authority of the City under the Constitutions or Laws of the United
States or the State of INtinnesota or are othenvise unlawful. Any rejection shall be subrnitted 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 or otherwise satisfy the Company's objections as stated within
thirty- (30) days of its receipt of the Company's rejection, the Company shall have the right thereafter to
seek appropriate judicial or administrative relief based solely upon those provisions it has alleged are
unlawful in its rejection notice. If the Company fails 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 to have waived its objections and to have accepted the terms of this
Franchse or any amendment hereto.
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Adopted by the City Council of the City of Ell- River this 'S day of I" 1' _2013.
1hn jibietz' Iay r
ATTEST:
Tina Allard, City Clerl''
Published on the day of (� , 2013, in the Elk River Star News, a paper of
general circulation within the City of Elk River, Mrinesota.
The provisions of the foregoing Ordinance are hereby accepted:
Its _6440- Mat eL� Y'r.
orct
AFFIDAVIT OF PUBLICATION l U 1 o F 7j
ORDINANCE NO.13-07
CITY OF ELK RIVER,
MINNESOTA STATE OF MINNESOTA
)
AN ORDINANCE OF THE SS
CITY OF ELK RIVER COUNTY OF SHERBURNE )
GRANTING TO ELK RIVER
MUNICIPAL UTILITIES,A
MINNESOTA MUNICIPAL
UTILITY,ITS
SUCCESSORS AND
ASSIGNS,A NON Tonya Orbeck, being duly sworn on oath says that she is the authorized agent of the
EXCLUSIVE FRANCHISE CONSTRUCT,CONSTRUCT, Newspaper known as the Star News, and has full knowledge of the facts which are stated
OPERATE,REPAIR AND below:
MAINTAIN IN THE CITY
OF ELK RIVER, (A) The Newpaper has complied with all of the requirements constituting qualifications
MINNESOTA,AN
ELECTRIC DISTRRIBUTION as a qualified newspaper, as provided by Minnesota Statue 331A.02, 331A.07 and other
SYSTEM AND applicable laws,as ammended.
TRANSMISSION LINES,
INCLUDING NECESSARY (B) The printed legal notice, which is attached was cut from the columns of said
AND
POLES,APPURTENANCES,FIXTURES
newspaper and was printed and published once a week for one week; it was first published
AND APPURTENANCES,
FOR THE FURNISHING OF on Saturday, the 20th day of April, 2013, and was therefore printed and published on every
ELECTRIC ENERGY TO A Saturday to and including Saturday,the 20th day of April,2013.
PORTION OF THE CITY,
ITS INHABITANTS,AND
OTHERS,AND TO USE THE
PUBLIC WAYS AND
PUBLIC GROUNDS OF THE
CITY FOR SUCH
PURPOSES;AND
PRESCRIBING CERTAIN
TERMS AND CONDITIONS
THEREOF.
THE CITY COUNCIL OF .f
THE CITY OF ELK RIVER,
�. � r
MINNESOTA,DOES FIND r, %7!
AND ORDAIN, AND THE /�
CITY CODE OF ORDI- r`
NANCES IS' HEREBY
REVISED TO INCLUDE,THE Authorized Agent
FOLLOWING:
SECTION 1. DEFINITIONS.
For purposes of this Ordinance,
the following capitalized terms Subscribed and sworn to before me on
listed in alphabetical order
shall have the following this 20thday of April,2013
meanings:
City. The City of Elk River,
County of Sherburne,State of
Minnesota and the corporate I� ECAMARIEWSON1
limits thereof on the Effective
Date and as they may be �:
adjusted from to time to time �t Notary Public-Minnesota
hereafter. Notary Public f."°" My Lommission Expinas Jan 31,2016
City Utility System.,Facili-
ties used for providing public
utility service owned or oper-
ated by the City or agency
thereof,including sewer,storm
sewer, water service, street
lighting and traffic signals. RATE INFORMATION
Company. Elk River Munici-
pal Utilities(ERMU),a Minne-
sota Municipal Utility,its suc- (1)Lowest classified rate paid by commercial $21,00
cessors and assigns including users for comparable space
all successors or assignees that
own or operate any part or (line,word or inch rate)
parts of the Electric Facilities
subject 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.
3361852
Effective Date. The effective under and across the Public name signs;"no par g' signs
prd . 13-
Wa s and Public Grounds keep the affected Public Ways kin 'si
date Electric acilnaes. y or Public Ground guarded in and other traffic control signs,
Electric Facilities. Electric within the Company Service order to avoid accidents to as requested and provided by Pt a.
transmission and distribution Area,subject to the provisions All work r
substations, towers, poles, of this Ordinance. The Persons or property. the City,may be installed on
lines,guys,anchors,conduits, Company may do all reasonable Performed by the Company electric and street light
fixtures,and necessary things necessary or customary shall comply with all applicable poles within the Company No rental fee or
appur-
tenances owned or operated by to accomplish these purposes, federal,sate,and laws, other charge shall be payable
the Company for the purpose of subject however, to all 3.3 Emergencies. The other City for this use;
providing electric energy for applicable design and safety
public or private use. codes, the provisions of this requirements for obtaining provided, however, that the
Ordinance,zoning ordinances, permits from the City pursuant City will reimburse the
Franchise. The grant of to Section 5.2 shall not apply if Company its actual and
Company made in bathe City a to the permit applicable ordinances, reasonable costs incurred by
Company in this Ordinance, Permit procedures and the re an emergency meth exists
subject to its terms and condi- customary and necessary ofElectri the immediate and to repair air the' C o'm p a n y i n
practices of the Cit accommodating such use. The
ti Notice. A writing served by P2.2 Not Exclusive. This notimce t he C't beforephtea- installation and placement of gives
Franchise is not exclusive. y any of the foregoing shall
other party or or
parties at the 2.3.Effective Date. This s o.n a b l y p o s s i b 1 e, comply wit the National
Franchise shall be in force and commencement o f the Electric Safety Code.
following th City:Cit effect from and after the emergency repair. Within two 3.8.Tree Trimming. Subject
If to theCity:CityAdminis adoption of this Ordinance and (2) business days after to such procedures,regulation
trator commencing the repair, the and •
supervision as the Council
City of Elk River publication as required bylaw for any upon the Company's duly Company shall apply y may establish,the Company
13065 Orono Parkway re uired permits and pay any may,at its cost,trim all trees
Elk River,MN 55330 authorized acceptance as q
If to the Company: provided i
an : in Section 12 below. required fees. and shrubs in the Public Ways
P y SECTION 3. LOCATIONS;; 3.4.Restoration. Following located within the Company
General Manager CONSTRUCTION; OTHER the completion of any work,the Service Area to the extent the
Elk River Municipal Utilities Company shall promptly and Company finds it necessary to
13069 Orono Parkway REGULATIONS. avoid interference with the
3.1. General. Electric diligently restore the affected
Elk River,MN 55330
Any party may change its Facilities shall be located, Public Ways and/or Public proper construction,operation,
Ground to as good a condition repair and maintenance of any
respective address for the ur- constructed and maintained by of the Company's Electric
pose of this Ordinance by writ- the Company:(i)in as safe and I f before the C the work ompany f fails l s d. Facilities installed o r
secure a condition or manner as fails t o
ten notice to the other parties: reasonably possible,(ii)so as promptly restore such Public maintained hereunder.
Person. A natural person or Wa sand/or Public Ground 3.9. Notice of C i t y
any partnership,joint venture, not to interfere with the safety y
wi th ten(10)days of Notice Improvements. •The City will
corporation,cooperative,lim- and convenience of ordinary by the City, the City may give the Company reasonable
ited liability company or any travel along and over Public engage an independent advance Notice of plans for
public corporation, political Ways, and (iii) so as not to contractor at the expense of the improvements to Public Ways
'subdivision or agency of the disrupt or interfere with the Company to perform the and Public Ground in the
State or any other legal entity normal use or operation of any restoration of the Public Ways Company Service Area where
that may be created by law. Public Ways,Public Ground or and/or •Public Ground as the City has reason to believe
Public Ground. All real prop- the City Utility System• required under this Section. that the Company's Electric
erty owned by or dedicated to Electric Facilities may only be The Company shall pay to the Facilities may affect or be
the City with respect to which located on Public Ground as City upon demand the cost to affected by such improvements.
the City holds the legal right or determined by the City in its the City of affecting such resto- The Notice will contain: (i)the
title to grantor withhold ease- sole discretion. The Company's ration including the City's nature and character of the
ment,leasehold'or occupancy construction,reconstruction, administrative expenses and improvements,(ii) he Public
rights or servitudes. operation,repair,maintenance, overhead. Ways and/or Public Ground
Public Way. Any street,alley location and relocation of 3.5.Avoidance of Damage. upon which the improvements
and other public rights-of-way Electric Facilities shall be The Company must take are to be made,;(iii)the extent
within the City. subject to-the terms of this reasonable measures to prevent of the improvements,(iv)the
Utility. Transmitting, Ordinance and such other the Electric Facilities from time when the City will start
furnishing, transporting, regulations of the City causing damage to persons or the work,and(v)if more than
distributing,delivering,selling, consistent with authority property.The Company must one Public Way or parcel of
receiving,importing,manufac- granted the City to manage its take reasonable measures to Public Ground• involved,the
turing, or causing to be Public Ways and Public protect the Electric Facilities order in which the work is to
produced, transmitted, Grounds under state law,to the from damage that could be proceed.
furnished, transported, extent not inconsistent with a inflicted on the Electric Facili- P SECTION 4. ELECTRIC
delivered,;sold, received, specific term of this Ordinance. ties by persons,property,or the FACILITIES RELOCATION.
imported, or manufactured, 3.2:Construction; Mainte elements:'The Company must 4.1.Relocation. In the event
electric energy, natural gas, nonce;Repairs. Whenever the take protective measures when the City reasonably determines
mixed gas,heat,light,power, Company desires to open or the City performs work near 'that it is necessary for
'the
and services provided through disturb any Public Way or the Electric Facilities,if given Company to move any part of
a cable communication system. Public Ground for the purpose reasonable Notice by the City of its Electric Facilities because
Utility Service Provider. Any of constructing,maintaining,or such work;prior t o its the City has determined to
Person who performs any one repairing Electric Facilities,it commencement. charge, move or improve its
or more of the activities of a shall give the City reasonable 3.6. Field Locations. The
Public Ways or that the
Utility to or for the public or to advance Notice,but not less Comp any`shall provide,field Electric Facilities have become
or for any one or more persons than (10)business days,by locations for all its or will become a substantial
within the corporate limits of filing a written Notice with the underground Electric Facilities impairment to the existing or
the City. City Clerk. In any case,the within the city consistent with imminent public use of Public
S E C T I 0 N 2'. TIIE Company shall not commence the requirements of Minnesota Ground, upon reasonable
FRANCHISE. such work before obtaining a Statutes, chapter 216D Notice by the City to the
2.1.Grant of Franchise. The permit pursuant to Article 66 of (commonly known as of the Company,then the Company
City hereby grants the the Elk River City Code,for Effective Date as the"Gopher will move its Electric Facilities
Company,for a term of twenty which the City may impose a State One Call"system). at its sole cost. The City shall
(20)years from the effective reasonable fee. The Company 3.7• Shared Use of Poles; consider reasonable
date of this Ordinance, the shall not,during the progress Street Lights. The Company alternatives in designing its
right to transmit and furnish of the work, endanger or shall make space available on public w projects so as not
electric energy for any public or unnecessarily obstruct the its poles or towers for City fire, to public works
rarity projects so as the
private use within and through passage of traffic or the normal water utility,police or other Company unreasonable
the Company Service Area. and customary use of the City facilities whenever such additions expense •in
For these purposes, the Public Ways and Public use will not interfere with the exercising its authority under
Company may construct, Ground. During the progress of use of such poles or towers by this Section 6.1. This Section
operate,repair and maintain such work,the Company shall the Company or the existing 6.1 shall not constitute a taking
Electric Facilities in,on,over, facilities, if any,of another by the Cit nor be construed as
utility Service Provider. Street y y
a waiver or modification of any
easement or prescriptive rights
nnn,,;ror} by the f;omnanv
independent of and without or claims of any nature with the location requirements related to this Ordinance or its • 13 a
reliance by the Company on whatsoever,growing out of the of Section 216D.04 with respect enforcement shall be venued in
this Franchise. operation, construction, and to all Electric Facilities, Sherburne County District
4.2.No Release of Liability. maintenance of its Electric including abandoned and Court _1 3h... 3 Nothing contained herein shall Facilities within the City. The retired Electric Facilities. 11.2. Limitation, on (I�3-/vf�
relieve any third party from Company shall maintain such SECTION 8. FRANCHISE Applicability. This Ordinance
liability arising out of their insurance coverage at all times FEE. constitutes a franchise between
failure to exercise reasonable during this Franchise. 8.1. Authority. The City the City and the Company as
care to avoid injuring the 5.3.Compliance with Laws; reserves all rights under the only parties and no
Company's •Electric Facilities Hazardous Substances. In its Minnesota Statutes,Sections provision of this Franchise
while performing any work operation under this 216B.36 and 30113.01 or other shall in any way inure to the
connected with grading, Ordinance,the Company shall law to require a franchise fee at benefit of any third person
regarding or changing the line observe all federal,state and any time during the term of, (including the public at large)
of any Public Way or with any local laws,rules, regulations and in consideration for,this so as to constitute any such
construction on or adjacent to and orders with respect to the Franchise. The franchise fee person'as a third party
any Public Way; provided, transmission, distribution, may be expressed (i) as a beneficiary of the agreement or
however,this Section 6.2 shall transformation or furnishing of specified charge per of any one or more of the terms
not limit the City's rights to electric energy and the measurable unit of electricity hereof,or otherwise give rise to
indemnificationunderSection handling of materials, being provided,transported, any cause of action in any
7.1 nor shall the City in any substances and wastes deemed transmitted,sold,furnished, person not a party hereto.
way be liable to the Company toxic or hazardous to health, delivered,or received within 11.3. Assignment. The
for claims arising from the natural resources or the the City,or(ii)as a percentage Company may assign this
negligence of any third party. environment (collectively, of the gross revenues received Franchise without the prtur
S E C T I 0 N 5 "Hazardous Substances"). The by the Company for its approval of,but upon not less
INDEMNIFICATION. Company shall remove or operations within the City,or than thirty(30)days' prior
5.1. Indemnification. If at remediate any Hazardous (iii) a flat fee per customer Notice to the City. Such
any time any claim of any kind Substances located on, in or based on service to retail Notice shall include the
is made against the City for surrounding its Electric customers within the City or on identity'of and contact .0.°„a o 0 ;; to
injury to persons or property Facilities or caused to be some other similar basis,or(iv) information for,the assignee ..,b 03 a1 „ g
arising from the acts or failure located on,in or surrounding in such other manner or and the statement of the ai g c „ 6 u
to act by the Company, its the Public Ways and Public fashion as the City may assignee's plans and•intaentions t. t U o
agents,servants,.or employees Grounds or elsewhere in the determine. The method of for the operation ofthe Electric o'er „,,:1 c, ,.., c ,
in connection with the imposing the franchise fee may Facilities under this Franchise. a 2 o, .Tom cav ?
City in compliance with all Po g
operations of the Company applicable laws, regulations differ by customer class, by S E C T I O N 1 2 • ° y d W•a
under and pursuant to this and lawful government orders, type of Utility,by particular A C C E P TAN C E BY THE 4-'al•.1 a o o, C
Franchise,the Company shall and pay or cause to be paid all circumstances of a Utility COMPANY. a> U) u '� ;, a '1
fully indemnify, defend and costs associated therewith. The Service Provider,or by other 12.1. Acceptance by the o-°o aaiw 5 Lj +� jE-
hold harmless the City, its indemnification terms and relevant factor, and may Company. The Company shall, 0 o,S a -c$ m Ts�=4<
agents,servants or employees combine the methods described within thirty(30)days after a, S > g.0 5.5 i
from any and all such claims, conditions of Section 6.1 shall
y apply to all claims made in(i)through(iv)above. adoption of this Ordinance or U n o_y,�
including,but not limited'to, against the City by any Person, 8.2.Separate Ordinance. A any amendment thereto,file
reimbursement of any including any governmental franchise fee shall be imposed with the City Clerk in writing
reasonable attorneys'fees and agency,who or which asserts by a separate ordinance duly its acceptance or rejection as
costs and expenses the City any right to costs,damages or adopted by the Council after 60 provided in Section 12.2. If
may incur in handling, other relief based upon the days'notice to company of the such acceptance is not filed or if
denying, or defending such terms and conditions imposed Proposed fee. a rejection is filed within said
claims. The Company`s upon the Company under this SECTION 9. DEFAULTS. If period, the Company, by its
obligation to indemnify the City Section 6.3 or which arise from the Company shall b e in continuing operations,shall be
shall not extend to any injury or are related to the Company's default in the performance of deemed to have accepted the
to persons or property caused acts or failure to act in corn- any of the material terms and terms and conditions of this
by the negligent act or failure pliance with any law, rule, conditions of this Ordinance, Franchise or any amendment
to act by the'City or any actions regulation or lawful order and shall continue in default hereto,except with respect to
taken by the Company o v e r n i n Hazardous for more than thirty(30)days such particulars as it may suc-
pursuant to directions of the Substances. g (or fails to initiate the cure of cessfully challenge under the
City if performed within the SECTION 6. VACATION OF the default within said period procedures specified in Section
scope of the City's directions PUBLIC WAYS. The City will and diligently pursue said cure, 12.2.
without negligence by the consult with the Company at if the cure of the default cannot 12.2.Rejection Procedures. A
Company. The City shall least four(4)weeks prior to its reasonably be accomplished rejection of this Franchise or
determine who will defend any action on any proposed vaca- within said 30 days) after any amendment hereto may be
such claims arising under this tion of a Public Way. Except receiving Notice from the City made by the Company only
Section 6.1 and the Company where ordered pursuant to of such default,the City may upon the grounds that the
will thereafter have complete Section 6.1,the vacation of any elect to cure such default and terms and conditions hereof or
control of such litigation;
Public Way after the charge the Company for the of such amendment exceed the
provided, however, the costs thereof. lawful authority of the City
Company may not settle any installation of Elec rrc
Facilities shall not operate to S E C T I 0 N 1 0 . under the Constitutions or
such claims without the prior deprive the Company of its AMENDMENT PROCEDURE. Laws of the United States or
approval of the City, which rights to operate and maintain T he C om'p any's right s the State of Minnesota or are
approval will not be unreason- such Electric Facilities until hereunder are subject to the otherwise unlawful. Any
ably withheld. This Section is the reasonable cost of police power of the City to rejection shall be submitted in
not, as to third parties, a relocating the same and the adopt and enforce ordinances writing to the City, stating
waiver of any defense or loss and expense resulting from necessary to the health,safety, with particularity the points
immunity otherwise available such relocation are first paid to and welfare of the public,and and authorities of law upon
to the City;and the Company, the Company. However,in no this Franchise may be amended which the Company relies. If
in defending any'action shall be case shall the City be liable to or repealed by the City as the City fails to amend this
entitled to assert every defense the Company for failure to d e ea m e d n e c e s s a r y o r Franchise or otherwise satisfy
or immunity that the City could specifically preserve a Public appropriate in the exercise of the Company's objections as
itself assert in its own behalf. such power. stated within thirty(30)days of
The Company's obli obligations Way in the exercise of its P
l authority under Minnesota SECTION 11. GENERAL its receipt of the Company's
under this Section shall survive Statutes,Section 160.29. P R O V I S I O N S O F rejection,the Company shall
the expiration,amendment,or SECTION 7. ABANDONED ORDINANCE. : have the right thereafter to
termination of this Ordinance. FACILITIES. The Company 11.1. Governing Law. This seek appropriate judicial or
5,2. Insurance. Before the shall comply with City Franchise is granted and is administrative relief based
Effective Date,the Company
shall furnish the City a ordinances and Minnesota intended to be performed in the solely upon those provisions it
Statutes, Section 216D.01 et State of Minnesota and shall be has alleged are unlawful in its
summary of insurance,if any, seq.,as they may be amended construed and enforced in rejection notice. If the
carried by the Company,or eiof
ther
from time to time. The accordance with the laws of the Company fails to initiate such
its self insured status,in either Company shall maintain State of Minnesota. The legal action within thirty(30)
case demonstrating adequate records describing the exact Company shall be subject to days from the expiration of the
protection to the City li liabilities,
from any location of all abandoned and personal jurisdiction in the aforementioned thirty(30)day
and all obligations, bilities, retired Facilities within the State of Minnesota. All actions period provided for the City's