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12-18-12 CC Public Hearing - 4G ����1 ��. Public Works D�partment 763-593-8030/763-593-3988(fax) �.._ ,��� e � �� s������-�� �� , ����.������: .: :h::-�.. �... . Executive Summary For Action Golden Valley City Council Meeting December 18, 2012 Agenda Item 4. G. First Consideration of Amendments to Xcel Energy Electric Franchise Ordinance Prepared By Jeannine Clancy, Director of Public Works Ron Nims, Public Works Project Coordinator Summary While reviewing the proposed franchise fee ordinance for CenterPoint Energy at the September 11, 2012 Council/Manager meeting, the Council directed staff to prepare revisions to the current Xcel Energy Franchise fee provisions that limit the use of funds to the Douglas Drive project and establishes a sunset date for the fee. Based upon Council direction, the following is a summary of recommended revisions to the Xcel Energy Franchise Ordinance: 1. Ordinances 447 and 456 regarding the electric franchise fee have been incorporated and restated so there would only be ane ordinance to consult on the electric franchise fee. 2. References to Douglas Drive has been removed and replaced with designated infrastructure costs. 3. The sunset provision for the franchise fee has been removed. Council will continue to review this fee and others on an annual basis during its yearly budget process. The following is a schedule and process for ordinance adoption. The following schedule provides an approximate timeline for implementation of the proposed ordinance: Council/Manager Meeting- Xcel Energy Franchise Fee Discussion September 11, 2012 Council/Manager Meeting- Xcel Energy Franchise Fee Discussion October 9, 2012 Council/Manager Meeting- Xcel Energy Franchise Fee Discussion November 13, 2012 Publication of City Newsletter with Public Hearing for Nov/Dec 2012 Ordinance Revisions Publication of News Release December 5, 2012 Council Meeting- Public Hearing for First Consideration of Proposed December 18, 2012 Ordinance Council Meeting- Public Hearing for Secand Consideration of Proposed January 2, 2013 Ordinance Publication of Adopted Ordinance (effective on January 11, 2013) January 10, 2013 Attachments • Ordinance No. 493, 2nd Series, Electric Franchise Ordinance, An Ordinance Amending Ordinance No. 394, 2nd Series by Amending and Restating Ordinance No. 447, 2nd Series and Ordinance No. 456, 2nd Series Relating to the Franchise Fee Associated with the Grant to Northern States Power Company, D/B/A Xcel Energy, a Minnesota Corporation, its Successors and Assigns, Permission to Construct, Operate, Repair and Maintain in the City af Golden Valley, 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 (5 pages) • Ordinance No. 394, 2nd Series, Electric Franchise Ordinance Granting to Northern States Power Company, D/B/A Xcel Energy, a Minnesota Corporation, its Successors and Assigns, Permission to Construct, Operate, Repair and Maintain in the City of Golden Valley, Minnesota, an Electric Distribution System and Transmission Lines, Including Necessary Poies, Lines, Fixtures and Appurtenances, for the Furnishing of Electric Energy to the Gity, its Inhabitants, and Others, and to Use the Public Ways and Public Grounds of the City for Such Purposes (redline version, 10 pages) Recommended Action Motion to adopt Ordinance No. 493, 2nd Series, Electric Franchise Ordinance on First Consideration. ORQINANCE NO. 493, 2ND SERIES ELECTRIC FRANCHISE ORDINANCE CITY OF GOLDEN VALLEY, HENNEPIN COUNTY, MINNESOTA AN ORDINANCE AMENDING ORDINANCE NO. 394, 2ND SERIES BY AMENDING AND RESTATING ORDINANCE NO. 447, 2ND SERIES AND ORDINANCE NO. 456, 2ND SERIES RELATING TO THE FRANCHISE FEE ASSOCIATED WITH THE GRANT TO NORTHERN STATES POWER COMPANY, D/B/A XCEL ENERGY, A MINNESOTA CORPORATION, ITS SUCCESSORS AND ASSIGNS, PERMISSION TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN IN THE CITY OF GOLDEN VALLEY, 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 �ITY COUNCIL OF THE CITY OF GOLDEN VALLEY, HENNEPIN COUNTY, MINNESQTA, ORDAINS AS FOLLOWS: SECTION 1. The City Council hereby amends Section 9 and Exhibit A of Ordinance No. 394, 2nd Series by completely amending and restating Ordinance 447 2nd Series and Ordinance 456 2nd Series in their entirety as follows: SECTION 9. FRANCHISE FEE. 9.1 Purpose. In order to defray costs of infrastructure projects in the City, the City Council has determined that it is in the best interest of the City to impose a franchise fee on those public utility companies that provide electric services with the City of Golden Valley pursuant to the other provisions of Ordinance No. 394, 2nd Series including this Section 9. If the City wishes to further modify the franchise agreement or the franchise fees discussed in Ordinance No. 394, 2nd Series, and this Section 9, the City shall notify Company in writing of such intent. Promptly thereafter City and Company shall negotiate in good faith mutually acceptable terms, conditions and amount of such fee. If City and Company are unable to agree on any term or condition of the fee, all disputes shall be resolved pursuant to Section 2.5 of Ordinance No. 394, 2nd Series. The parties do not waive hereby, any rights they have under law. Any changes to the franchise fee must be made by ordinance. 9.2 Franchise Fee Statement. Ordinance No. 394, 2nd Series and this Ordinance set forth the terms and canditions under which Xcel shall collect an electric franchise fee from customers located within the City. 9.3 Payment and Fee Design. The franchise fee shall be payable to the City in accordance with the schedule attached as Exhibit A. This is an account-based fee. In the event that an entity covered by this ordinance has more than one meter at a single premise, but only one account, only one fee shall be assessed to that account. If a premise has two or more meters being billed at different rates, the Company may have an account for each rate classification, which will result in more than one franchise fee assessment for electric service to that premise. If the Company combines the rate classifications into a single account, the franchise fee assessed to the account will be the largest franchise fee applicable to a single rate classification for energy delivered to that premise. In the event any entities covered by this ordinance have more than one premise, each premise (address) shall be subject to the appropriate fee. In the event a question arises as to the proper fee amount for any premise, the Company's manner of billing for energy used at all similar premises in the City will control. 9.4 Periodic Fee Adjustment. City has estimated that the franchise fee will provide the City with approximately $630,000.00 in annual revenue ("Estimate"). If actual revenue collected fails to meet or exceeds this Estimate for any reason, or if the City reasonably determines that the Estimate is not sufficient to meet designated infrastructure costs, upon notice to the Company, the City may increase or decrease the fee from time to time to achieve the revenue necessary to cover such costs; provided, however, that any such change shall maintain the same flat fee proportion among customer classifications and shall not exceed five percent (5%) of the gross revenue received by Company from the sale of electricity to retail customers within the corporate limits of the City. The fee may not be changed more often than annually. This right of Periodic Fee Adjustment relates to revenues sufficient to meet designated infrastructure costs and does not relate to any additional franchise fee or fee for another public purpose as allowed by law that the City may seek to impose. In that event, the City and Company shall employ Section 9 of City Ordinance No. 394, 2nd Series to establish such fee pursuant to a separate ordinance. 9.4 Surcharge. The City recognizes that the Minnesota Public Utilities Commission allows the utility company to add a surcharge to customer rates to reimburse such utility company for the cast of the fee and that Company will surcharge its customers in the City the amount of the fee. 9.5 Right of Way Permit Fees Waiver. Beginning the date the Campany begins collecting franchise fees from customers in the City until the City gives notice to Company of City's desire to impose both franchise fees and require permit fees pursuant to chapter 7 of the City Code ("Permit Fees"), City waives any and all Permit Fees the City would otherwise have the right to impose on Company. If the City intends to require both Permit Fees and franchise fees from the Company, the City shall give the Company sixty (60) days written notice of such intent before charging Permit Fees. Company does not hereby waive its right to object to a City withdrawal of this waiver of Permit Fees, and reserves all rights under law. Nofinrithstanding the above Permit Fee waiver, Company shall remain subject to all other requirements of chapter 7 of the City Code not superseded by the specific terms of Ordinance 394, 2nd Series and this Ordinance. 9.6 Record Suppart for Payment. Company shall make each payment when due and, if requested by the City, shall provide at the time of each payment a statement summarizing how the franchise fee payment was determined, including information showing any adjustments to the total surcharge billed in the period for which the payment is being made to account for any uncollectibles, refunds or error corrections. 9.7 Enforcement. Any dispute, including enforcement of a default of Ordinance No. 394, 2nd Series, including this Section 9 will be resolved in accordance with Section 2.5 of Ordinance No. 394, 2nd Series. 9.8 Effective Date of Franchise Fee. Notwithstanding the effective date of this Ordinance and notwithstanding any contrary provisions in the franchise, the effective date of the fee collected under this Ordinance is the later of ten (10) days after the publication or after the sending of written notice enclosing a copy of this adopted Ordinance upon Company by certified mail. Fee collection under this Ordinance will commence in accordance with the terms set forth in this Section. 9.9 City Use of Franchise Fees Collected by the Company. The City shall use thefees collected by Company only for infrastructure casts and for no other purpose. For purposes of Ordinance No. 394, 2nd Series, including this Section 9, infrastructure costs shall include City expenditures, including those financed by bonds, for any and all design and construction, including all associated project administration, legal, and related costs, maintenance, repair, improvement to, relocation of, or replacement of facilities, including City or privately-owned utility facilities for which customers in the City would otherwise be required to pay; and acquisition or improvement of rights-of-way or other public ground. EXHIBIT A XCEL ENERGY ELECTRIC FRANCHISE FEE SCHEDULE Class Fee Per Meter, Monthlv Residential $ 2.00 Small Commercial & Industrial - Non-Demand $ 2.00 Small Commercial & Industrial - Demand $ 22.50 Large Commercial & Industrial $206.00 SUBJECT TO SECTIONS 9.2 AND 9.4 OF THIS ORDINANCE, FRANCHISE FEES ARE TO BE COLLECTED BY THE COMPANY IN THE AMOUNTS SET FORTH IN THE ABOVE SCHEDULE, AND SUBMITTED TO THE CITY ON A QUARTERLY BASIS AS FOLLOWS: January - March collections due by April 30 April - June collections due by July 31 July - September collections due by October 31 October - December collections due by January 31 SECTION 2. Except as modified by this Ordinance, the City reaffirms the provisions of Ordinance 394, 2nd Series. SECTION 3. Terms nat defined in this Ordinance shall be defined as set forth in Ordinance 394, 2nd Series. SECTION 4. This Ordinance shall take effect from and after its passage and publication as required by law. Adopted by the City Council this day of , 201_ /s/Shepard M. Harris, Mayor Shepard M. Harris, Mayor ATTEST: /s/Susan M. Virniq Susan M. Virnig, City Clerk 000090/480568/1565296_1 ORDINANCE NO. 394, 2NQ SERIES ELECTRIC FRANCHISE ORDINANCE CITY OF GOLDEN VALLEY, HENNEPIN COUNTY, MINNESOTA AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY, D/B/A XCEL ENERGY, A MINNESOTA CORPORATION, ITS SUCCESSORS AND ASSIGNS, PERMISSION TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN IN THE CITY OF GOLDEN VALLEY, 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 CITY GOUNGIL OF THE GITY OF GOLDEN VALLEY, HENNEPIN COUNTY, MINNESOTA, ORDAINS: 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 Golden Valley, County of Hennepin, State of Minnesota. City Utility System. Facilities used for providing public utility service owned or operated by City or agency thereof, including sewer, storm sewer, water service, street lighting and traffic signals, but excluding facilities for providing heating, lighting, or other forms of energy. Commission. The Minnesota Public Utilities Commission, or any successor agency or agencies, including an agency of the federal government, which preempts all or part of the authority to regulate electric retail rates now vested in the Minnesota Public Utilities Commission. Company. Northern States Power Company, a Minnesata corporatian, d/b/a Xcel Energy, 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. Electric Facilities. Electric transmission and distribution towers, poles, conductors lines, guys, anchors, conduits, fixtures, and necessary appurtenances owned or aperated by Company for the purpose of providing electric energy for public use. Non-Betterment Costs. Costs incurred by Company from relocation, removal or rearrangement of Electric Facilities that do not result in an improvement to the Electric Facilities. ORDINANCE NO. 394, 2ND SERIES PAGE 2 Natice. A writing served by any party or parties on any other party or parties. Notice to Company shall be mailed to the General Counsel, Legal Services, 414 Nicollet Mall, 5tn Floor Minneapolis, MN 55401. Notice to the City shall be mailed to the City Manager, City of Golden Valley, 7800 Golden Valley Road, Golden Valley, MN 55427-4588. Any party may change its respective address for the purpose of this Ordinance by written notice to the other parties. Public Ground. Land owned or otherwise controlled by the City for park, open space or similar public purpose, which is held for use in common by the public. Public Way. Public right-of-way within the City as defined in Minn. Stat. § 237.162, subd. 3. SECTION 2. ADOPTION OF FRANCHISE. 2.1 Grant of Franchise. Gity hereby grants Company, for a period of 20 years from the date this Ordinance is passed and approved by the City, the right to transmit and furnish electric energy for light, heat and power fr�r 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, subject to the provisions of this Ordinance. Company may do all reasonable things necessary or customary to accomplish these purposes, subject however, to such reasonable regulations as may be imposed by the City pursuant to ordinance and to the further provisions of this franchise agreement. 2.2 Effective Date; Written Acceptance. This franchise shall be in force and effect from and after the passage of this Ordinance and publication as required by law and its acceptance by Company. If Company does not file a written acceptance with the City within 60 days after the date the City Council adopts this Ordinance, or otherwise places the City on notice, before that time, that the Company does not accept all terms of this franchise, the City Council by resolution may revoke this Ordinance or seek its enforcement in a court of competent jurisdiction. 2.3 Service Rates and Area. The service to be provided and the rates to be charged by Company for electric service in City are subject to the jurisdiction of the Commission. The area within the City in which Company may provide electric service is subject to the provisions of Minnesota Statutes, Section 216B.40. 2.4 Publication Expense. The City shall publish this Ordinance and the Company shall reimburse the City for the publication expense within thirty (30) days. 2.5 Dispute Resolution. If either party asserts that the other party is in default in the performance of any obligation hereunder, the complaining party shall notify the other party of the default and the desired remedy. The notification shall be written. Representatives of the parties must promptly meet and attempt in good faith to negotiate a resolution of the dispute. If the dispute is not resolved within 30 days of the date af written ORDINANCE NO. 394, 2ND SERIES PAGE 3 Notice, the parties may jointly select a mediator to facilitate further discussion. The parties will equally share the fees and expenses of this mediator. If a mediator is not used or if the parties are unable to resolve the dispute within 30 days after first meeting with the selected mediatar, 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. 2.6 Gontinuation of Franchise. If the City and Company are unable to agree on the terms of a new franchise by the time this franchise expires, this franchise will remain in effect until a new franchise is agreed upon, or until 90 days after the City or Company serves written Notice to the other party of its intention to allow the franchise ta expire, but in no event shall this franehise continue for more than one year after expiration of the 20-year term set forth in Section 2.1. SECTION 3. LOCATION, OTHER REGULATIONS. 3.1 Lacation of Facilities. Electric Facilities shall be located, constructed, and maintained so as not to interfere with the safety and convenience of ordinary travel along and over Public Ways and so as not to disrupt normal operation of any City Utility System. Electric Facilities shall be located on Public Grounds as determined by the City. Company's construction, reconstruction, operation, repair, maintenance, location and relocation of Electric Facilities shall be subject to any permit requirements authorized in a separate ordinance and other reasonable regulations of the City, consistent with authority granted the City to manag� its Public Ways and Public Grounds under state law, to the extent not inconsistent with a specific term of this franchise agreement. Company may abandon underground Electric Facilities in place, provided, however, that at City's request, Company shall remove, at its own expense, abandoned Electric Facilities uncovered during a City improvement project, including but not limited to, metal conduits or concrete encased conduit, that the City can demonstrate interfere with the project. 3.2 Street Openings. Company shall not open or disturb the surface of any Public Way or Public Ground for any purpose without first having obtained a permit from the City, if required by a separate ordinance for which the City may impose a reasonable fee, subject to the provisions of Section 9. Permit conditions imposed on Company shall not be more burdensome than those imposed on other utilities for similar facilities or work. Company may, however, open and disturb the surFace of any Public Way or Public Ground without a permit if (i) an emergency exists requiring the immediate repair of Electric Facilities and (ii) Company gives telephone, e-mail or similar notice to the City before, if �easonably possible, commencement of the emergency repair. Within two business days after commencing the repair, Company shall apply for any required permits and pay any required fees. 3.3 Restoration. After undertaking any work requiring the opening of any Public Way, Company shall restore the Public Way in accordance with Minnesata Rules, Part 7819.110Q and applicable City ordinances to the extent consistent with law. Company shall restore the Public Ground to as gaod a condition as formerly existed, and shall maintain the surface in good condition for six months thereafter, but shall have no obligation to water any grass or other vegetation thereon. All work shall be completed as promptly as weather ORDINANCE NO. 394, 2ND SERIES PAGE 4 permits and if Company shall not promptly perform and compiete the work, remove ali dirt, rubbish, equipment and material, and put the Public Ground in the said condition the City shall have, after demand to Company to cure and the passage of a reasonable period of time following the demand, but not to exceed five days, the right to make the restoratian of the Public Ground at the expense of Company. Company shall pay to the City the cost af such work done for or performed by the City. This remedy shall be in addition to any other remedy available to the City for noncompliance with this Section. 3.4 Performance Security. The City hereby waives any requirement, in the normal course of Company operations, for Company to post a construction perFormance bond, certificate of insurance, letter of credit or any other form of security or assurance that may be required under a separate existing or future ordinance of the City, of a person or entity obtaining the City's permission to install, replace or maintain facilities in a Public Way or the Public Ground. Notwithstanding the foregoing, the City reserves the right to require a performance bond for new installation, relocation, replacement, or repairs, when Company's completion of its work is required in order for the City to proceed with its work for eonstructing a public improvement to the Public Way. 3.5 Shared Use of Poles. Company shall make space available on its poles or towers for City fire, water utility, police or other City facilities on reasonable terms and conditions acceptable to the Company whenever such use will not interfere with the use of such poles or towers by Company, by another electric utility, by a telephone utility, or by any cable television company or other form of communications company. In addition, the City shall pay for any added cost incurred by Company because of such use by City. 3.6 Avoid Damage to Electric Facilities. Nothing in this Ordinance relieves any person, including Company, from liability arising out of the failure to exercise reasonable care to avoid damaging Electric Facilities or other persons or property while perForming any activity. 3.7 Notice of Improvements to Streets. The City must give Company reasonable written Notice of plans for improvements to Public Ways where the City has reason to believe that Electric Facilities may affect or be affected by the improvement. The natice must contain: (i) the nature and character of the improvements, (ii) the Public Ways upon which the impravements 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 ane Public Way is involved, the information provided to the City from contractors on the order in which the work is to proceed. The Notice must be given to Company a sufficient length of time, considering seasonal working conditions, in advance of the actual commencement of the work to permit Company to make any additions, alterations or repairs to its Electric Facilities Company deems necessary. 3.8 Mapping Information. Company must promptly provide mapping and location information for any of its Electric Facilities in accordance with Minnesota Rules Parts 7819.4000 and 7819.4100. ORDINANCE N�. 394, 2ND SERIES PAGE 5 SECTION 4. RELOCATIONS. 4.1 Relocation in Public Ways. Company shall comply with the requirements of any applicable ordinance of the City relating to relocation of Electric Facilities in Public Ways to the extent consistent with Minnesota Rules, Part 7819.3100 and applicable law. 4.2 Relocation in Public Grounds. The City may require Company at Company's expense to relocate or remove its Electric Facilities from Public Ground upon a finding by City that the Electric Facilities have become or will become a substantial impairment to the existing or proposed public use of the Public Ground. Such relocation shall comply with applicable city ordinances consistent with law. 4.3 Projects with Federal Funding. Relocation, removal, or rearrangement of any Electric Facilities made necessary because of the extension into or through City of a federally-aided highway project shall be governed by the provisions af Minnesota Statutes Section 161.46, as supplemented or amended. It is expressly understood that the right herein granted to Company is a valuable property right and City shall not order Company to remove or relocate its facilities without compensation when a Public Way is vacated, improved or re-aligned 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. The City is obligated to pay Company only for those portions of its relocation costs for which City has received federal funding specifically allocated for relocation costs in the amount requested by the Company. 4.4 No Waiver. The provisions of Section 4 apply only to Electric Facilities constructed in reliance on a franchise from City and Company does not waive its rights under an easement or prescriptive right or State or County permit. SECTION 5. TREE TRIMMING. Unless otherwise provided in any permit or other reasonable regulation required by the City under separate ordinance, Company may trim all trees and shrubs in the Public Ways and Public Grounds of City to the extent Company finds necessary to avoid interference with the proper construction, operation, repair and maintenance of any Electrie Facilities installed hereunder, provided that Company shall save the City harmless fram any liability arising therefrom. SECTION 6. INDEMNIFICATION. 6.1 Indemnity of City. Company shall indemnify and hold harmless the City from any and all liability on account of injury to persons or damage to property occasioned by the construction, maintenance, repair, inspection, the issuance of permits, or the operation of the Electric Facilities located in the Public Ways and Public Grounds. The City shall not be indemnified for losses or claims occasioned through its own negligence except for losses or claims arising out of or alleging the City's negligence as to the issuance of permits for, or inspection of, Company's plans or work. ORDINANCE NO. 394, 2ND SERIES PAGE 6 6.2 Defense of City. In the event a suit is brought against the City under circumstances where this agreement to indemnify applies, Company at its sole cost and expense shall defend the City in such suit if written notice thereof is promptly given to Company within a period wherein Company is not prejudiced by lack of such notice. If Gompany is required to indemnify and defend, it will thereafter have control of such litigation, but Company may not settle such litigation without the consent af the City, which consent shall not be unreasonably withheld. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the City, and Company, in defending any action on behalf of the City, shall be entitled to assert in any action every defense or immunity that the City could assert in its own behalf. This franchise agreement shall not be interpreted to constitute a waiver by the City of any of its defenses of immunity or limitations on liability under Minnesota Statutes, Chapter 466. SECTION 7. VACATION OF PUBLIC WAYS. The City shall give Company at least two weeks prior written notice of a propased vacation of a Public Way. Except where required solely for a City improvement project, the vacation of any Public Way, after the installation of Electric Facilities, shall not operate to deprive Gompany 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 Company. In no case, however, shall the City be liable to Company for failure to specifically preserve a right-of-way, under Minnesota Statutes, Section 160.29. In accordance with Minnesota Rules, Part 7819.3200, if the City's order directing vacation of the Public Way does not require relocation af the Company's Electric Facilities, the vacation proceedings shall not be deemed to deprive Company of its right to continue to use the right-of-way of the former Public Way for its Electric Facilities installed prior to such order of vacation. SECTION 8. CHANGE IN FORM OF GOVERNMENT. Any change in the form of government of the City shall not affect the validity of this Ordinance. Any governmental unit succeeding the City shall, without the consent of Company, succeed to all of the rights and obligations of the City provided in this Ordinance. SECTION 9. FRANCHISE FEE. g,� �+��fiYlA �n� n�.,n�,.�;,,ry .� �r�n„�;�.o �ooPuraose. In order to defray costs of infrastructure "F'rni�proiects in the Cit�, the City Council has determined that it is in the best interest of the City to impose a franchise fee on those public utility companies that provide electric services with the City of Golden Valley pursuant to the other provisions of#-�+s-Ordinance.- No. 394, 2nd Series includina this Section 9. If the City wishes to further modify �ka+sthe franchise agreement or the franchise fees discussed in �++s-Ordinance No. 394. 2nd Serie�,. and this Section 9. the City shall notify Company in writing of such intent. Promptly thereafter City and Company shall negotiate in good faith mutually acceptable terms, conditions and amount of such fee. If City and Company are unable to agree on any term or condition of the fee, all disputes shall be resolved pursuant to Section 2.5 of t#� ORDINANCE NO. 394, 2ND SERIES PAGE 7 e�+�a�eOrdinance No. �94, 2nd Series. The parties do not waive hereby, any rights they have under law. Any changes to the franchise fee must be made by ordinance. 9.2 Franchise Fee Statement. � � t3rdinance_Na._.394,_2nd �er�es .. . . _. . . and this Ordinance set forth the terms and conditions under which Xcel shall collect an electric franchise fee from customers located within the City. , . , �� „ , -q�+p�e��-- , --p�-��ed--f-w� , ' , � -+�e+�#�fe�►�-�a-�+d-����e ' , -�����...�� , , , , , , , _.�rn�'r���v i�P"ttt'�ti`fc � . �Ifl�!'�� . - �16E'- '2C1ot '?r�sr�1 �,`eyrirze 'z:s'.rr;,x.t cc,.�wc.rx4....r. 9.3 Payment and Fee Design. The franchise fee shall be payable to the City in accordance with the schedule attached as Exhibit A. This is an account-based fee. In the event that an entity covered by this ordinance has more than one meter at a single premise, but only one account, only one fee shall be assessed to that account. If a premise has two or more meters being billed at different rates, the Company may have an account for each rate classification, which will result in more than one franchise fee assessment for electric service to that premise. If the Company combines the rate classifications into a single account, the franchise fee assessed to the account will be the largest franchise fee applicable to a single rate classification for energy delivered to that premise. In the event any entities covered by this ordinance have more than one premise, each premise (address) shall be subject to the appropriate fee. In the event a question arises as to the proper fee amount for any premise, the Company's manner of billing for energy used at all similar premises in the City will control. ORDINANCE NO. 394, 2ND SERiES PAGE 8 9.4 Periodic Fee Adjustment. City has estimated that the franchise fee will provide the City with approximately $630,000.00 in annual revenue ("Estimate"). If actual revenue collected fails to meet or exceeds this Estimate for any reason, or if the City reasonably determines that the Estimate �is not sufficient to meet or^;n^+ ^^�+ � rinfinnr� ;n c„h,�;,,� ;�� �n,�esianated infrastructure costs. upon notice to the Company, the City may increase or decrease the fee from time to time to achieve the revenue necessary to cover�!��such costs; provided, however, that any such change shall maintain the same flat fee proportion among customer classifications and shall not exceed five percent (5%) of the gross revenue received by Gompany from the sale of electricity to retail customers within the corporate limits of the City. The fee may not be changed more often than annually. This right of Periodic Fee Adjustment relates to revenues sufficient to meet �e}es�desianated infrastructure costs and does not relate to any additional franchise fee or fee for another public purpose as allowed by law that the City may seek to impose. In that event, the City and Company shall employ Section 9 of City Ordinance No. 394, 2nd Series to establish such fee pursuant to a separate ordinance. 9.4 Surcharge. The City recagnizes that the Minnesota Public Utilities Commission allows the utility company to add a surcharge to customer rates to reimburse such utility company for the cost of the fee and that Company will surcharge its customers in the City the amount of the fee. 9.5 Right of Way Permit Fees Waiver. Beginning the date the Company begins collecting franchise fees from customers in the City until the City gives notice to Campany of City's desire to impose both franchise fees and require permit fees pursuant to chapter 7 of the City Code ("Permit Fees"), City waives any and all Permit Fees the City wauld otherwise have the right to impose on Company. If the City intends to require both Permit Fees and franchise fees from the Company, the City shall give the Company�sixtv (�60) days written notice of such intent before charging Permit Fees. Company does not hereby waive its right to object to a City withdrawal of this waiver of Permit Fees, and reserves all rights under law. Nofinrithstanding the above Permit Fee waiver, Company shall remain subject to all other requirements of chapter 7 of the City Code not superseded by the specific terms of Ordinance 394, 2nd Series and this Ordinance. 9.6 Record Support for Payment. Company shall make each payment when due and, if requested by the City, shall provide at the time of each payment a statement summarizing how the franchise fee payment was determined, including information showing any adjustments to the total surcharge billed in the period for which the payment is being made to account for any uncollectibles, refunds or error corrections. 9.7 Enforcement. Any dispute, including enforcement of a default �e�a�d+r�-�+s s��inL�of Ordinance No. 394. 2nd Series. includina this Section 9 will be resolved in accordance with Section 2.5 of Ordinance No. 394, 2nd Series. 9.8 Effective Date of Franchise Fee. Notwithstanding the effective date of this e�r-���eOrdinance and notwithstanding any contrary provisions in the F-�a�e#i-r..scefranchise, the effective date of the fee collected under this e��+�►a�seOrdin�nce is the ORDINANCE NO. 394, 2ND SERIES PAGE 9 later of ten (10) days after the publication or after the sending of written notice enclosing a copy of this adopted e���seOrdinance upon Company by certified mail. Fee collection under this e�+r�a��eOrdinance will commence in accordance with the terms set forth in �this Section. 9.9 City Use of Franchise Fees Collected by the Company . The City shall use the fees collected by Company only for infrastructure costs ��r-e�-���e P�sjec-�-and for no other purpose. For purposes of � e;Ordinance No 394 2nd Series includina this Section 9. infrastructure costs-s� +h°-t„��;��� shall include City expenditures, including those financed by bonds, for any and all design and construction, including all associated �'-r-eje�t rp oiect administration le�c al and related costs, maintenance, repair, improvement to, relocation of, or replacement of facilities, including City or privately-owned utility facilities for which customers in the City would otherwise be required to pay; and acquisition or improvement of rights-of-way or other public ground-#e� ��e}e�. SECTION 10. PROVISIONS OF ORDINANCE. 1 Q.1 Severability. Every section, provision, or part of this Ordinance is declared separate from every other section, provision, or part; and if any section, provision, or part shall be held invalid, it shall not affect any other section, provision, or part; provided, however, that if any provisian is held invalid, the parties agree to negotiate in goad faith to substitute, to the extent reasonably possible, amended provisions that validly carry out the primary purpose af the invalid provisions. Where a provision of any other City ordinance conflicts with the provisions of this Ordinance, the pravisions of this Ordinance shall prevail. 10.2 Limitation On Applicability. This Ordinance constitutes a franchise agreement between the City and Company as the only parties and no provision of this franchise shall in any way inure to the benefit of any third person (including the public at large) so as to constitute any such person as a third party beneficiary of the agreement or of any one or more of the terms hereof, or otherwise give rise to any cause of action in any person not a party hereto. SECTION 11. AMENDMENT PROCEDURE. Either party to this franchise agreement may at any time propose that the agreement be amended. This Qrdinance may be amended at any time by the City passing a subsequent ordinance declaring the provisions of the amendment, which amendatory ordinance shall become effective upon the filing of Company's written consent thereto with the Gity Clerk after City council adoption of the amendatory ordinance. ORDINANCE NO. 394, 2ND SERIES PAGE 10 EXHIBIT A XCEL ENERGY ELEGTRIC FRANCHISE FEE SCHEDULE Class Fee Per Meter, Monthlv Residential $ 2.00 Small Commercial & Industriai - Non-Demand $ 2.00 Small Commercial & Industrial - Demand $ 22.50 Large Commercial & Industrial $206.00 SUBJECT TO SECTIONS 9.2 AND 49.4 OF THIS ORDINANCE, FRANCHISE FEES ARE TO BE COLLECTED BY THE COMPANY IN THE AMQUNTS SET FORTH IN THE ABOVE SCHEDULE, AND SUBMITTED TO THE CITY ON A QUARTERLY BASIS AS FOLLOWS: January - March collections due by April 30 April - June collections due by July 31 July - September collections due by October 31 October - December collections due by January 31 Adopted by the City Council this day of , �9�------:2013. Shepard M. Harris, Mayor ATTEST: Susan M. Virnig, City Clerk (This ordinance will be uncodified and referenced in Chapter 25 of the City Code).