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ORD 2023-02 Gas Franchise CenterPoint Energy Resources Corp., dba Center Point Energy Minnesota GasORDINANCE N0.2023-02 CITY OF OTSEGO WRIGHT COUNTY, MINNESOTA AN ORDINANCE GRANTING CENTERPOINT ENERGY RESOURCES CORP., d/b/a CENTERPOINT ENERGY MINNESOTA GAS ("CENTERPOINT ENERGY"), ITS SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN FACILITIES AND EQUIPMENT FOR THE TRANSPORTATION, DISTRIBUTION, MANUFACTURE AND SALE OF GAS ENERGY FOR PUBLIC AND PRIVATE USE, AND TO USE THE PUBLIC WAYS AND GROUNDS OF THE CITY OF OTSEGO, WRIGHT COUNTY, MINNESOTA, FOR SUCH PURPOSE; AND, PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF THE CITY COUNCIL OF THE CITY OF OTSEGO, WRIGHT COUNTY, MINNESOTA, ORDAINS: SECTION I. DEFINITIONS. For purposes of this Ordinance, the following capitalized terms listed in alphabetical order shall have the following meanings: City. The City of Otsego, County of Wright, 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 goverlunent, which preempts all or part of the authority to regulate gas retail rates now vested in the Minnesota Public Utilities Commission. Company. CenterPoint Energy Resources Corp., d/b/a CenterPoint Energy Minnesota Gas ("CenterPoint Energy") its successors and assigns including all successors or assigns that own or operate any part or parts of the Gas Facilities subject to this Franchise. Gas Energy. Gas Energy includes both retail and wholesale natural, manufactured or mixed Gas Facilities. Gas transmission and distribution pipes, lines, ducts, fixtures, and all necessary equipment and appurtenances owned or operated by the Company for the purpose of providing Gas Energy for retail or wholesale use. 1�Page 223417v3 Notice. A writing served by any party or parties on any other party or parties. Notice to Company shall be mailed to CenterPoint Energy, Minnesota Division Vice President, 505 Nicolhet Mall, Minneapolis, Minnesota 55402. Notice to the City shall be mailed to 13400 90t�' Street NE, Otsego, Minnesota 55330. Any party may change its respective address for the purpose of this Ordinance by written Notice to the other parties. Ordinance. This gas franchise ordinance, also referred to as the Franchise. Public Ground. Land owned or otherwise controlled by the City for utility easements, park, hail, walkway, open space or other public property, which is held for use ul connnon by the public or for public benefit and which is not a Public Way. Public Way. Any highway, street, alley or other public right -of --way within the City. SECTION 2. ADOPTION OF FRANCHISE. 2.1 Grant of Franchise. City hereby grants Company, for a period of ten (10) years from the date this Ordinance is passed and approved by the City, the right to import, manufacture, distribute and sell Gas Energy 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 and also the right to transport Gas Energy tluough the limits of the City for use outside of the City linuts. For these purposes, Company may construct, operate, repair, and maintain Gas 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 a public right -of --way ordinance or permit requirements adopted consistent with state law. 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 in writing by Company. Written acceptance or rejection of the franchise by the Company must be filed with the City Clerk within sixty (60) days after vv�-itten submission of a City adopted and approved ordinance to the Company. The City, by Council resolution, may revolve this franchise agreement if Company does not file a written acceptance with the City within 90 days after publication. 2.3. Service and Gas Rates. charged by Company for Gas Energy Conunission. 2.4. Publication Expense. Ordinance. The teens and conditions of service and the rates to be in City are subject to the exclusive jurisdiction of the Company shall pay the expense of publication of this 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 pasties must promptly meet and attempt in good faith to negotiate a resolution of the dispute. If the dispute is not resolved within thirty (30) days of the written Notice, the parties may jointly select a mediator to facilitate further discussion. The parties will equally shale the fees and expenses of this mediatar•. If a mediator is not used or if the parties are unable to resolve the dispute within thirty (30) days after 2�Page 223�117v3 first meeting with the selected mediator, either party may commence an action in District Court to interpret and enforce this Franchise or for such other relief as may be permitted by law or equity. 2.6. Continuation of Franchise. If the City and the 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 ninety (90) days after the City or the Company serves written Notice to the other party of its intention to allow Franchise to expire. However, in no event shall this Franchise continue for more than one year after expiration of the ten (10) year term set forth in Section 2.1. SECTION 3. LOCATION, OTHER REGULATIONS. 3.1. Location of Facilities. Gas Facilities shall be located, constructed, and maintained so as not to uiterfere 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. Gas Facilities may be located on Public Grounds in a location to be mutually agreed by the City and the Company. The construction, reconstruction, operation, repair, maintenance, and location of Gas Facilities shall be subject to permits if required by separate ordinance and to other reasonable regulations of the City consistent with the authority granted the City to manage its Public Ways and Public Grounds under state law, to the extent not inconsistent with a specific terns of this Franchise. 3.2. Street Ot�enin�s. 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. Permit conditions imposed on Company shall not be more burdensome than those imposed on other public -right -of --way users 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 Gas Facilities and (ii) Company gives telephone, email or similar Notice to the City before commencement of the emergency repair, if reasonably possible. Within two (2) business days after commencing the repair, Company shall apply for any required permits and pay any required fees. Except in the case of emergency work, work undertaken without a required permit by the Company, or its agents shall be subject at the discretion of the City to a penalty in the amount of twice the established permit fees in addition to any other remedy or penalty specified or allowed in City Code or State Rules. 3.3. Restoration. After undertaking any work requiring the opening of any Public Way or Public Ground, the Company shall restore the Public Ways or Public Grounds, including paving and its foundation, in accordance with Minnesota Rules, 7819.1100 and applicable City ordinances. Company shall restore the Public Ground to as good a condition as formerly existed and shall maintain the surface in good condition for six (6) months thereafter. All work shall be completed as promptly as weather permits, and if Company shall not promptly perform and complete the work, remove all 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 (5) days, the right to make the restoration of the Public Ways or Public Grounds at the expense of Company. Company shall pay to the City the cost of such work done for or performed by the City, including administrative expense and overhead. This remedy is in addition to any other remedies available to the City for noncompliance with this section. In all other aspects, 3�Page 223417v3 Company shall comply with the terms of Minnesota Rules 7819.1100 for restoration of Public Ways and Grounds, and Minnesota Rules 7819.3000 and 7819.0100. 3.4. Avoid Damage to Gas Facilities. Nothing in this Ordinance relieves any person from liability arising out of the failure to exercise reasonable care to avoid damaging Gas Facilities while performing any activity. The Company must take reasonable measures to prevent the Gas Facilities from causing damage to persons or property. The Company must take reasonable measures to protect the Gas Facilities from damage that could be inflicted on the Gas Facilities by persons, property, or the elements. The Company and the City will comply with all applicable laws, the Otsego City Code, and regulations, including Minnesota Statutes chapter 216D, when performing work near the Gas Facilities. 3.5. Notice of Improvements to Streets. The City will give Company reasonable written Notice of plans for improvements to Public Ways and Public Grounds where the City has reason to believe that Gas Facilities may affect or be affected by the improvement. The Notice will contain: (i) the nature and character of the improvements, (ii) the Public Ways or Public Grounds upon which the improvements are to be made, (iii) the extent of the improvements, (iv) the time when the City will start the work, and (v) if more than one Public Way or Public Grounds is involved, the order in which the work is to proceed. The Notice will be given to Company a sufficient length of time, if reasonably possible, considering seasonal warlcing conditions, in advance of the actual commencement of the work to permit Company to make any additions, alterations or repairs to its Gas Facilities the Company deems necessary. 3.6 Mapping Information. If requested by City, the Compalry must promptly provide complete and accurate mapping information for any of its Gas Facilities in accordance with the requirements of Minnesota Rules 7819.4000 and 7819.4100. Upon request by the City, the Company must provide field locations for any of its Gas Facilities within the period of time required by Minnesota Statute 216D. 3.7. Emergency Response. As emergency first -responders, when a public safety concern exists both the City and Company shall respond to gas emergencies within the City when notified. SECTION 4. RELOCATIONS. 4.1. Relocation in Public Ways. The Company and City shall comply with the provisions of Minnesota Rules 7819.3100, and any applicable City 1•ight-of--way ordinance consistent with state law, with respect to requests for the Company to relocate Gas Facilities located in Public Ways or public grounds. City may require Company at Company's expense to relocate or remove its Gas Facilities from Public Ways or Public Grounds upon a finding by City that the Gas Facilities have become or will become a substantial impairment to the existing or proposed public use of the Public Grounds. Nothing in this Section 4.2 shall be construed so as to invalidate or impair any existing company easements in Public Grounds. If Company is required to relocate from an existing easement City shall provide an alterlate location in public ground or a public 17ght-of--way for the Company to relocate its Gas Facilities. 4�Page 223417v3 4.2. Pro.jects with Federal Funding. Relocation, removal, or rearrangement of any Company Gas Facilities made necessary because of the extension into or tluough City of a federally aided highway project shall be governed by the provisions of Minnesota Statutes §� 161.45 and 161.46 if funds for these purposes are available. SECTION 5. INSURANCE &INDEMNIFICATION. 5.1. Insurance of the Facilities. The Company shall maintain insurance consistent with state law. 5.2. Indemnity of City. Company shall indemnify and hold the City harmless from any and all liability, on account of injury or death to persons or damage to property occasioned by the construction, maintenance, repair, inspection, the issuance of permits, or the operation of the Gas Facilities located in the Public Ways and Public Grounds. The City shall not be indemnified for losses or claims occasioned through its own negligence or otherwise wrongful act or omission 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. 5.3. 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 Company is required to indemnify and defend, it will thereafter have control of such litigation, but 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 othertivise available to the City. 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. This Franchise agreement shall not be intehpreted to constitute a waiver by the City of any of its defenses of immunity or limitations on liability under Mimnesota Statutes, Chapter 466. SECTION 6. VACATION OF PUBLIC WAYS AND PUBLIC GROUNDS. The City shall give Company at least two (2) weeks prior wl7tten Notice of a proposed vacation of a Public Ways or Public Grounds. The City and the Company shall comply with the Otsego City Code, Minnesota Statutes section 160.29, and Minnesota Rules 7819.3100 and 7819.3200 with respect to any request for vacation. SECTION 7. 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. S�Page 223417v3 SECTION 8. FRANCHISE FEE. 8.1. Form. During the term of the franchise hereby gl•anted, the City may charge the Company a franchise fee. The franchise fee will be collected on a flat per meter basis, or by some other method that is mutually acceptable to both City and Company for each retail customer account within the corporate limits of the City. The amount of the fee collected may differ for each customer class. The City will use a formula that provides a stable and predictable amount of fees, without placing the Company at a competitive disadvantage. Such fee shall not exceed any amount that the Company may legally charge to its customers prior to payment to the City and be consistent with the Minnesota Public Utility Commission's March 23, 2011 Order establishing franchise fee filing requirements in Docket No. E,G999/CI-09-970. If the Company claims that the City required fee formula is discl7minatory or otherwise places the Company at a competitive disadvantage as compared to another entity, the Company will provide a for�rlula that will produce a substantially similar fee amount to the City. If the City and Company are unable to agree, the disagreement shall be subj ect to the Dispute Resolution provisions of this Ordinance. 8.2. Separate Ordinance. The franchise fee shall be imposed by separate ordinance duly adopted by the City Council. The effective date of the franchise fee ordinance shall be no less than ninety (90) days after written Notice enclosing a copy of the duly adopted and approved ordinance has been served upon the Company by Certified mail. The Company is not required to collect a franchise fee if the terms of the fee agreement are inconsistent with this franchise or state law, provided the Company notifies the City Council of the same within the ninety (90) day period. Any fianchise fee ordinance applicable to the Company which is in place on the effective date of this Franchise shall be immediately effective without further notice to the Company. 8.3. Condition of Fee. The separate ordinance imposing the fee shall not be effective against the Company ul�less it lawfully imposes a fee of the same or substantially similar amount on the sale of energy within the City by any other energy supplier, provided that, as to such supplier, the City has the author7ty or contractual right to require a fianchise fee or sunilar fee through an agreed - upon franchise. 8.4. Collection of Fee. The franchise fee shall be payable not less than quahterly during complete billing months of the period for which payment is to be made. The franchise fee formula may be changed from time to time, however, the change shall meet the salve Notice and acceptance requirements and the fee may not be changed more often than annually. Such fee shall not exceed any amount that the Company may legally charge to its customers prior to payment to the City and be consistent with Minnesota Public Utility Commission's March 23, 2011 Order establishing franchise fee filing requirements in Docket No. E,G999/CI-09-970. Such fee is subject to subsequent reductions to account for uncollectibles and customer refunds incurred by the Company. The Company shall not be responsible to pay City fees that Company is unable to collect under Commission rules or order. The Company agrees to make available for inspection by the City at reasonable times all records necessary to audit the Company's determination of the fianchise fee payments. 6�Page 223417v3 8.5. Continuation of Franchise Fee. If this franchise expires and the City and the Company are unable to agree upon terms of a new franchise, the franchise fee, if any being imposed by the City at the time this franchise expires, will remain in effect until a new franchise is agreed upon. However, the franchise fee will not remain in effect for more than one (1) year after the franchise expires as stated in Section 2.6 of this Franchise. If for any reason the franchise terminates, the franchise fee will terminate at the same time. SECTION 9. ABANDONED FACILITIES. The Company shall comply with Minnesota Statutes, Section 216D.01 et seq, as it may be amended from time to time, to applicable city code provisions with respect to abandoned facilities located in Public Ways and Public Grounds, and with Minnesota Rules, Part 7819.3300 as it may be amended from time to time with respect to abandoned facilities in Public Ways, The Company shall maintain records describing the exact location of all abandoned and retired Gas Facilities within the Public Ways and Public Grounds, produce such records at the City's request and comply with the location requirements of Mimlesota Statutes § 216D.04 with respect to all Gas Facilities located in Public Ways and Public Grounds. SECTION 10. SAFETY AND INFRASTRUCTURE REPORTING. The Company and the City shall meet annually at a mutually convenient tune to discuss items of concern or interest relating to the Company's safety and service reliability in the previous year, compared to other service areas, infrastructure plans for the coming year and other matters raised by the City or the Company. Upon request, the Company shall provide data that identifies aging infrastructure within the City that may need replacement and the Company's plans for replacement. SECTION 11. PROVISIONS OF ORDINANCE. 11.1. Severability. Every section, provision, or part of thus 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. Where a provision of any other City ordinance is inconsistent with the provisions of this Ordinance, the provisions of this Ordinance shall prevail. 11.2. Limitation on Applicability. This Ordinance constitutes a franchise agreement between the City and Company as the only parties. No provisions herein 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 this Ordinance 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 12, AMENDMENT PROCEDURE. Either party may propose at any time that thus Franchise Ordinance be amended. The Franchise 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 Company's written consent thereto with the City Cleric within Mnety (90) days after the effective date of the amendatory ordinance. If the Company does not consent to the amendment, the ordinance containing the amendment shall be revolted by City. This amendatory procedure is subject, 7�Page 223417v3 however, to the City's police power and franchise rights under Miluiesota Statues, Sections 216B.36 and 301B.01, which rights are not waived hereby. SECTION 13. PREVIOUS FRANCHISE SUPERSEDED. This fianchise supersedes and replaces any previous Gas fianchise granted to Company or its predecessor. 8�Page 223417v3 ADOPTED this 13th day of February, 2023, by the City Council of the City of Otsego. CITY OF OTSEGO ATTEST: �-� �m Audra Etzel, City Clerk �-�' ayor Jessica Stocicamp 9�Page 223417v3 SUMMARY ORDINANCE N"* 2023-02 AN ORDINANCE GRANTING A NONEXCLUSIVE GAS ENERGY FRANCHISE TO CENTERPOINT ENERGY MINNESOTA GAS ("CENTERPOINT ENERGY") NOTICE IS HEREBY GIVEN that, on February 13, 2023, Ordinance No. 2023-02 was adopted by the City Council of the City of Otsego, Minnesota, NOTICE IF FURTHER GIVEN that, because of the lengthy nature of the Ordinance, the following summary of the ordinance has been prepared for publication: Ordinance No. 2023-02 grants a nonexclusive gas energy franchise to CenterPoint Energy and sets for the terms thereof. A printed copy of the entire Ordinance is available for inspection by any person during the City Clerk's regular office hours. APPROVED for publication by the City Council of the City of Otsego, Minnesota, this 13th day of February 2023. CITY OF OTSEGO ATTEST: Audra Etzel, City Clerk 224916v1 AFFIDAVIT OF PUBLICATION STATE OF MINNESOTA ) ss COUNTY OF SHERBURNE Rhonda Herberg being duly sworn on an oath, states or affirms that he/she is the Publisher's Designated Agent of the newspa- per(s) known as: Star News with the known office of issue being located in the county of: SHERBURNE with additional circulation in the counties of: WRIGHT and has full knowledge of the facts stated below: (A) The newspaper has complied with all of the requirements constituting qualifica- tion as a qualified newspaper as provided by Minn, Stat, §331A,02. (B) This Public Notice was printed and pub- lished in said newspaper(s) once each week, for 1 successive week(s); the first insertion being on 02/18/2023 and the last insertion being on 02/18/2023, MORTGAGE FORECLOSURE NOTICES Pursuant to Minnesota Stat. §580,033 relating to the publication of mortgage foreclosure notices: The newspaper complies with the conditions described in',§580,033, subd, 1, clause (1) or (2). If the newspaper's known office of issue is located in a county adjoining the county where the mortgaged premises or some part of the mortgaged premises described in the notice are located, a substantial portion of the newspaper's circulation is in the latter countv, By: Subscribed and sworn to or affirmed before me on 02/18/2023 by Rhonda Herberg, Notary Public DA wIA-ENE MARgE MacPs�Rsoro {�0"i'AFIY FUgLIC - MINNESOTA y L'OmmlSSW Upirrs Jan 31, 2024 Rate Information: (1) Lowest classified rate paid by commercial users for comparable space: $999.99 per column inch CITY OF OTSEGO SUMMARY ORDINANCE NO. 2023=02 AN ORDINANCE GRANTING A NONEXCLUSIVE GAS ENERGY FRANCHISE TO CENTERPOINT ENERGY MINNESOTA GAS ("CENTERPOINT ENERGY") NOTICE IS HEREBY GIVEN that, on February 13, 2023, Orelk nance No. 2023-02 was adopted by the City Council of the City of Otsego, Minnesota. NOTICE IF FURTHER GIVEN that, because of the lengthy na- ture of the Ordinance, the follow- ing summary of the ordinance has been prepared for publication: Ordinance No. 2023-02 grants a nonexclusive gas energy franchise to CenterPoint Energy and sets for the terms thereof. A printed copy of the entire Ordi- nance is available for inspection by any person during the City Clerk's regular office hours. APPROVED for publication by the City Council of the City of Otsego, Minnesota, this 13th day of February 2023. CITY OF OTSEGO By Mayor Jessica Stockamp ATTEST, Audra Etzel, City Clerk Published in the Star News February 18, 2023 1293983 Ad ID 1293983