91-002 ORD
FRANCHISE AGREEMENT
ORDINANCE NO. 91-2
e
CITY OF ELK RIVER
COUNTY OF SHERBURNE
STATE OF MINNESOTA
AN ORDINANCE GRANTING TO ANOKA ELECTRIC COOPERATIVE,
A MINNESOTA CORPORATION, ITS SUCCESSORS AND
ASSIGNS, PERMISSION 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 APPURTENANCES, FOR THE FURNISHING OF ELECTRIC
ENERGY TO THE CITY, ITS INHABITANTS, AND OTHERS,
AND TO USE THE PUBLIC WAYS AND PUBLIC GROUNDS OF
THE CITY FOR SUCH PURPOSES.
SECTION 1. DEFINITIONS
1.1 "City" in this Ordinance, "City" means the City of Elk River, County of
Sherburne, State of Minnesota.
e
1.2 "City Utility System" means the facilities used for providing any
public utility service owned or operated by City or agency thereof,
including sewer and water service.
1.3 "Company" means Anoka Electric Cooperative, a Minnesota corporation,
its successors and assigns.
1.4 "Notice" means a writing served by any party or parties on any other
party or parties. Notice to Company shall be mailed to the General
Manager thereof at 2022 North Ferry Street, Anoka, Minnesota, 55303.
Notice to City shall be mailed to the CITY CLERK.
1.5 "Public Ways" means any street, alley, or other public right-of-way
within the City.
1.6 "Public Grounds" means land owned by the City for Park, open space or
similar purpose, which is held for use in common by the public.
1.7 "Electric Facilities" means electric distribution poles, lines, guys,
anchors, ducts, fixtures, and necessary appurtenances owned or operated
by the Company for the purpose of providing electric energy for public
use.
e
SECTION 2. FRANCHISE
e
2.1 Grant of Franchise. City hereby grants Company, for a period of twenty
years from the right to transmit and furnish electric
energy for light, heat, power and other purposes for public and private
use within and through the limits of the City as its boundaries now
exist or as they may be extended in the future. For these purposes,
Company may construct, operate, repair and maintain Electric Facilities
in, on, over, under and across the Public Ways and Public Grounds of
City subject to the provisions of this ordinance. Company may do all
reasonable things necessary or customary to accomplish these purposes,
subject, however, to zoning ordinances, other applicable ordinances,
permit procedures, and to the further provisions of this franchise.
During the term of this franchise, the City shall not acquire through
eminent domain, a Minnesota Statute, Section 2168.44 proceeding or
equivalent legal proceeding, the facilities, customers, and service
area which the Company is granted this franchise to serve.
2.2 Effective Date; Written Acceptance.' This franchise shall be in force
and effect from and after its passage and its acceptance by the
Company, and its publication as required by law (and the City Charter).
An acceptance by the Company must be filed with the City Clerk within
90 days after publication.
2.3 Service Rates and Area. The Company will provide electric service at
published rates which fairly reflect the cost of doing business on its
utility system and as approved by the Rural Electrification
Administration, Washington D.C. The area within the City in which the
Company may provide electric service currently is subject to the
provisions of Minnesota Statutes, Section 2168.40. The area to be
served is defined as attachment 1.
2.4 Publication Expense. The expense of publication of this ordinance
shall be paid by the Company.
2.5 Default. 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. If the dispute is not resolved
within 30 days of the written notice, either party may commence an
action in District Court to interpret and enforce this franchise or for
such other relief as may be permitted by law or equity for breach of
contract, or either party may take any other action permitted by law.
SECTION 3. LOCATION, OTHER REGULATIONS
3.1 Location of Facilities. Electric Facilities shall be located and
constructed so as not to interfere with the safety and convenience of
ordinary travel along and over Public Ways and they shall be located on
Public Grounds as determined by the City. The Company's construction,
reconstruction, operation, repair, maintenance and location of Electric
Facilities shall be subject to other reasonable regulations of the
City.
... ,',
. -------- w~~~~~~e6, ~e~ephone companies, 'cable'teievision
companLes, or other forms of communication
Any City facilities shall be installed and companies outside the City.
ith h maintained in accordance
w t e National Electric Safety Code.
e
.....
e
e
e
SECTION 4. RELOCATIONS
4.1 Relocation of Electric Facilities in Public Wavs. Except as provided
in section 4.3, if the City determines to vacate for a City improvement
project, or to grade, regrade, or change the line of any Public Way, or
construct or reconstruct any City Utility System in any Public Way, it
may order the Company to relocate its Electric Facilities located
therein. The Company shall relocate its Electric Facilities at its own
expense. The City shall give the 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 Electrical Facilities, which was made at
Company expense, the city shall reimburse Company for nbn-betterment
expenses 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 reconnect at its own
expense its 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. Except as may be
provided in Section 4.3, City may require the Company 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 of the public use to which the Public Ground is
or will be put. The relocation or removal shall be at the Company's
expense. The provisions of 4.2 apply only to Electric Facilities
constructed in reliance on a franchise and the Company does not waive
its rights under an easement or prescriptive right.
4.3 Pro;ects with State or Federal Fundinq. Relocation, removal, or
rearrangement of any Company facilities made necessary because of the
extension into or through City of a federally-aided highway project
shall be governed by the provisions of Minnesota statutes Section
161.46 as supplemented or amended. It is understood that the right
herein granted to Company is a valuable right. City shall not order
Company to remove, or relocate its facilities when a Public Way is
vacated, improved or realigned because of a renewal or a redevelopment
plan which is financially subsidized in whole or in part by the Federal
Government or any agency thereof, unless the reasonable non-betterment
costs of such relocation and the loss and expense resulting therefrom
are first paid to Company, but the City need not pay those portions of
such for which reimbursement to it is not available.
4.4 Liabilitv. Nothing in the Ordinance relieves any person from liability
arising out of the failure to exercise reasonable care to avoid
damaging Electric Facilities while performing any activity.
SECTION 5. TREE TRIMMING
.
The Company may trim and/or spray, with herbicides approved by the
Environmental Protection Agency, all trees and shrubs in the Public
Ways and Public Grounds of City interfering with the proper
construction, operation, repair and maintenance of any Electric
Facilities installed hereunder, provided that the Company shall save
the City harmless from any liability arising therefrom, and subject to
permit or other reasonable regulation by the City.
SECTION 6. INDEMNIFICATION
6.1 The 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 City. 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, the 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.
e
6.2 In the event a suit is brought against the City under circumstances
where this agreement to indemnify applies, the Company at its sole cost
and expense shall defend the City in such suit if written notice there
of promptly given to the Company within a period wherein the Company is
not prejudiced by lack of such notice. 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 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 the 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 the Company at least two weeks' prior written
notice of a proposed vacation of a Public Way. Except where required
for a City street or other improvement project, the vacation of any
Public Way, after the installation of Electric Facilities, shall not
operate to deprive Company of its rights to operate and maintain such
Electrical 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 the Company
for failure to specifically preserve a right-of-way, under Minnesota
Statutes, Section 160.29.
e
-
--
e
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 the Company, succeed to all of the rights
and obligations of the city provided in this Ordinance.
SECTION 9. SEVERABILITY
If any portion of this franchise is found to be invalid for any reason
whatsoever, the validity of the remainder shall not be affected.
SECTION 10. AMENDMENT
This ordinance may be amended at any time by the City passing a
subsequent ordinance declaring the provisions of the amendment, which
amendatory ordinance shall become effective upon the filing of the
Company's written consent thereto with the City Clerk within 90 days
after the effective date of the amendatory ordinance.
SECTION 11. EFFECTIVE DATE
This Ordinance shall be in force and effect from and after its adoption
and publication as required by law.
f..r4 ~
Passed by the ~ .
~. IttCiI.
7-(.,<.. day of ~
II .
-> /;
/' ///"
/~~:"1;~-z;1I'> i,'--"'-(' /?:r'~
this
,./
_ ,,{~~l/t,<,{ "A':.'" :;:7' I~l.:>t
Mayor
ATTEST:
~~ V ~JL/
City Clerk
BdBk/fran-elk
City Council Minutes
January 7, 1991
Page 7
e
COUNCILMEMBER HOLMGREN MOVED TO ADOPT RESOLUTION 91-3, A RESOLUTION
APPROVING A PREMISE PERMIT APPLICATION ALLOWING MINNESOTA THERAPEUTIC
CAMP TO OPERATE A CLASS A GAMBLING LICENSE IN ELK RIVER. COUNCILMEMBER
SCHULDT SECONDED THE MOTION. THE MOTION CARRIED 5-0.
7.17.Anoka Electric Franchise
Mayor Tralle indicated that Elk River Municipal Utilities has been
negotiating with Anoka Electric Cooperative for over two years
regarding the exchange of territory between ERMU and AEC. Bill
Birrenkott of Elk River Municipal Utilities indicated that they have
reached an agreement and are ready to enter into a franchise agreement
with AEC.
COUNCILMEMBER KROPUENSKE MOVED TO ADOPT ORDINANCE 91-2, AN ORDINANCE
GRANTING TO ANOKA ELECTRIC COOPERATIVE, A MINNESOTA CORPORATION, ITS
SUCCESSORS AND ASSIGNS, PERMISSION 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 APPURTENANCES, FOR THE FURNISHING OF ELECTRIC ENERGY TO
THE CITY, ITS INHABITANTS, AND OTHER, AND TO USE THE PUBLIC WAYS AND
PUBLIC GROUNDS OF THE CITY FOR SUCH PURPOSES, CONTINGENT UPON REA
APPROVAL OF THE AGREEMENT. COUNCILMEMBER HOLMGREN SECONDED THE
MOTION. THE MOTION CARRIED 5-0.
4IIr 7.16.Review Jan/F~ar City Council Schedule
Councilmember Holmgren requested the Council to delay the joint meeting
wi th the CCTF and City Council for one month until such time that
negotiations with have been completed on a parcel of property. The
City Administrator indicated that he did not wish to prolong the
Council discussion on the Community Center too long as this issue has
bearing on other decisions which are necessary to be considered
regarding space for the City Hall and Police Department.
It was the consensus of the Council to set the following meetings:
CIP Workshop...January 21, 1991, 6:30 p.m., City Hall
Community Center Workshop...January 22, 1991, 7:00 p.m., City Hall
Community Center Workshop...February 13, 1991, 7:00 p.m., City Hall
CIP Workshop...February 18, 1991, 6:30 p.m., City Hall
Park & Rec/CC...March 6, 1991, 7:00 p.m., City Hall
8.
Check Rel'tister
e
COUNCILMEMBER HOLMGREN MOVED TO APPROVE THE CHECK REGISTER.
COUNCILMEMBER DIETZ SECONDED THE MOTION. THE MOTION CARRIED 5-0.
.
e
e
RESOLUTION 91-1]
RESOLUTION FOR THE CITY OF ELK RIVER
A RESOLUTION APPROVING NOTICE OF PUBLICATION OF
ORDINANCE 91-2
The City Council of the City of Elk River hereby amends Section
210 of the City Code of Ordinances to add Section 210.16 and
does ordain as follows:
An ordinance granting to Anoka Electric Cooperative, a
Minnesota Corporation, its successors and assigns, permission
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 appurtenances, for the furnishing of electric energy to the
City, its inhabitants, and others, and to use the public ways
and public grounds of the City for such purposes.
The above description of the Ordinance is a summary. A
complete copy of the Ordinance revisions are available for
review at the office of the City Clerk at the Elk River City
Hall and at the Elk River Library.
Ordinance passed and adopted the 7th day of January, 1991.
This Resolution of Notice of Publication passed and adopted
this 25th day of February, 1991.
Effective upon publication.
vftCE;:L~
Gene Schuldt, Vice Mayor
ATTEST:
~.. L Cj
Sandra A. Thackeray,