Title
Amending Appendix C of the Legislative Code relating to Northern States Power, D/B/A Xcel Energy, Electric Franchise.
Body
The City Council of the City of Saint Paul ordains as follows:
Section 1. That the Legislative Code, Appendix C be repealed and replaced in its entirety as follows:
APPENDIX C - ELECTRIC FRANCHISE - NORTHERN STATES POWER, D/B/A XCEL ENERGY
An ordinance granting to Northern States Power Company, a Minnesota Corporation, d/b/a Xcel Energy, its successors and assigns, a franchise to construct, operate, repair and maintain in the city of Saint Paul 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 Rights-of-Ways of the city for such purposes.
Section 1. Definitions. For purposes of this Ordinance, the following capitalized terms listed in alphabetical order shall have the following meanings:
1.1. City Utility System. Facilities used for providing public utility service owned or operated by the City or agency thereof, including, but not limited to, sewer, water, and storm water service.
1.2. 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.
1.3. Company. Northern States Power Company, a Minnesota corporation, its successors, and assigns, including all successors or assigns that own or operate any part or parts of the Electric Facilities subject to this Franchise.
1.4. Electric Facilities. Electric transmission and distribution towers, poles, lines, guys, anchors, conduits, fixtures, and necessary appurtenances owned or operated by the Company within the City for the purpose of transmitting, distributing, providing, and managing electric energy for public use and benefit.
1.5. Franchise. The grant of the privilege to use the public rights-of-way made by the City to the Company in this Ordinance, subject to the terms and conditions of this Ordinance.
1.6. Gross Revenues. All sums received by Company from the sale of electricity to its retail customers within the corporate limits of the City. For purposes of this Franchise, “Gross Revenues” shall be synonymous with the term “gross earnings” in the Saint Paul City Charter, and the Franchise definition shall control.
1.7. Notice. A written notice served by one party on the other party referencing one or more provisions of this Ordinance.
Notice to the Company shall be mailed or personally delivered to the following:
Community Relations
401 Nicollet Mall, 7th Floor
Minneapolis, MN 55401
with a copy to:
General Counsel
401 Nicollet Mall, 8th Floor
Minneapolis, MN 55401
Notice to the City shall be mailed or personally delivered to the following:
Director of Office of Financial Services
(or its successor department or office)
City of Saint Paul
15 West Kellogg Boulevard
Saint Paul, Minnesota 55102-1616
with a copy to:
City Attorney
Office of the City Attorney
City of Saint Paul
15 West Kellogg Boulevard #400
Saint Paul, Minnesota 55102-1616
1.8. Public Rights-of-Way. The area on, below, or above a public roadway, highway, street, alley, cartway, bicycle lane, walkway, public sidewalk, or other public right-of-way, or other dedicated right-of-way for travel purposes and utility easements of the City.
Section 2. Adoption of Franchise.
2.1. Grant of Franchise. The City hereby grants the Company, from the date this Ordinance becomes effective through 11:59:59 p.m. on December 31, 2036, the privilege 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, the Company may construct, operate, repair, and maintain Electric Facilities in, on, over, under, and across the Public Rights-of-Way within the City, subject to the provisions of this Ordinance. The use of the Public Rights-of-Way by the Company and the regulation of the same by the City shall be consistent with state law and shall be:
(1) Subject to reasonable regulations by the City, including, but not limited to, the applicable provisions contained in the City Charter and Saint Paul Code of Ordinances, Title XII (Streets, Sidewalks, Bridges, Other Public Ways), and all other applicable ordinances and permit procedures, all to the extent consistent with state law; and
(2) Consistent with the use of the Public Rights-of-Way by the City and the public for the public purposes for which they are used and intended
2.2. Option to Extend. Provided both parties agree, and the Company is in compliance with the provisions of this Ordinance, the term described in 2.1 may be extended for one additional five-year term.
2.3. Other Authority. Other than giving the Company the right to use the Public Rights-of-Way, this Ordinance is not intended in any way to affect or modify or surrender any powers held by the City.
2.4. Effective Date. This Franchise shall be in force and effect from and after the passage of this Ordinance and publication as required by law, and upon the Company’s duly authorized acceptance as executed within sixty (60) days after passage and publication of the Ordinance. The City, by Council resolution, may revoke this Franchise if Company does not file a written acceptance with the City within sixty (60) days after publication.
2.5. Annual Franchise Performance and Planning Meeting; Annual Reporting. The Company and the City shall meet annually to discuss items of concern or interest related to this Franchise, including, but not limited to, collaborative infrastructure planning, vegetation management, and reliability performance. To facilitate the discussion, the Company shall make available to the City the following:
(1) The Company’s reports to the Commission of information on service reliability and service quality data (which includes reliability metrics such as Customers Experiencing Multiple Interruptions (CEMI-6), Customers Experiencing Long Outages (CELI-12)) as well as low-income program participation data (which includes Home Energy Squad, Home Energy Savings, Multi-family Energy Savings Program, and Low Income Energy Assistance participation). This data is combined with demographic information from the U.S. Census Bureau so the reported data may be accessed by Census Block Group. The data is available for review and download by means of the Company’s Electric Service Quality Interactive Map (the “SQ Map”), or if the SQ Map is no longer available during the term of this Franchise the Company will provide such data to the City directly in a format which shall be mutually agreed to by the City and the Company. The SQ Map shall include, at a minimum, the information described above and may in the future contain additional data points as either directed by the Commission or at the discretion of the Company. The City may download and use the reported data to analyze service reliability and quality and program participation for the City as a whole, or any other area of interest within the City boundaries.
(2) Information on infrastructure investment and capital improvements by the Company in the Electric Facilities within the City as reported by the Company to the Commission, if any, for the immediately preceding calendar year, and in the format in which the same was provided to the Commission.
2.6. Service and Rates. 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 the Company may provide electric service is subject to the provisions of Minnesota Statutes, Section 216B.40.
2.7. Publication Cost. The expense of publication of this Ordinance and any amendments thereto will be paid by City and reimbursed to City by Company.
2.8. 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 in writing
of the default and the desired remedy. 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 written 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 mediator, either party may commence an action in Ramsey County 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, constructed, and maintained in accordance with the operating requirements set forth by the Commission and best industry practices so as to not unreasonably:
(1) Interfere with the safety and convenience of ordinary travel along and over Public Rights-of-Way or;
(2) Interfere with the public or governmental use of the Public Rights-of-Way;
(3) Disrupt normal operation of any City Utility System. Subject to the terms of any particular right-of-way permit, Company shall ensure that Electric Facilities are located or relocated, when initially constructed, in compliance with Titles II and III of the Americans with Disabilities Act of 1990 (“ADA”) and associated regulations, 28 CFR Part 35, as required by the terms of any particular right of way permit and in a manner that presents no temporary or permanent interference with any established Pedestrian Access Route (as defined by the ADA) in the Public Rights-of-Way.
The Company’s construction, reconstruction, operation, repair, maintenance, and location of Electric Facilities shall be subject to permits as required by the Saint Paul Code of Ordinances, including but not limited to Title XII (Streets, Sidewalks, Bridges, Other Public Ways), as may be amended from time to time, and to such other reasonable regulations of the City consistent with authority granted the City to manage its Public Rights-of-Way under the City’s City Charter and state law.
3.2. Field Locations and Mapping. Company shall provide field locations for its underground Electric Facilities within City to City at least annually at the request of City and consistent with the requirements of Minnesota Statutes, Chapter 216D. In addition, upon written request by City, Company must promptly provide complete and accurate as-built mapping information for Electric Facilities in accordance with the requirements of Minnesota Rules 7819.4000 and 7819.4100. Any mapping information so provided shall be treated as protected nonpublic data, not public data, trade secret information and security information, as is protected from public or unauthorized disclosure to the extent such protection is consistent with the Minnesota Data Practices Act, Minnesota Statues, Section 13.37. The City shall specify the locations for which such mapping information is requested.
3.3. Permits. Subject to Sections 3.1 (Location of Facilities) and 3.4 (Emergencies), the Company, or its authorized subcontractor, shall not open or disturb any Public Rights-of-Way for any purpose (the “Work”) without first having obtained the required permits from the City, for which the City may impose a fee. In performing the Work, the Company shall obtain any required all permits and authorizations, including but not limited to excavation, obstruction, lane use, and/or sidewalk inspection permit or lane use permit required under Saint Paul Code of Ordinances Title XII (Streets, Sidewalks, Bridges, Other Public Ways), for which the City may impose a fee. Failure of the Company or its authorized subcontractor to comply with the terms of the obstruction, lane use, and/or sidewalk inspection permit, which are directly attributable to the Company or its authorized subcontractor, and over which the Company or its authorized subcontractor has control, shall result in the imposition of a proportional charge of the permit fee as appropriate for the circumstance. This Section 3.3 does not apply to work for routine maintenance, storm restoration or tree trimming purposes. During the progress of the Work, the Company shall post signage identifying the Work as performed on behalf of the Company.
Notwithstanding anything to the contrary herein, the Company shall pay, in lieu of any permit or other fees or expenses, including but not limited to hooded meter charges, charged by the City, an annual right-of-way permitting flat fee of $100,000.00. The Company shall be subject to penalties or administrative fines in the same manner as other right-of-way users. The only other fees chargeable under this agreement shall be franchise fees in accordance with the Fee Ordinance. The flat fee is payable to the City’s utility connections division, or its successor, by December 30 of each calendar year of the agreement and any extensions, unless otherwise mutually agreed by the parties.
3.4. Emergencies. The requirements for obtaining permits from the City pursuant to Section 3.3 (Permits) shall not apply when an emergency exists requiring the immediate repair of Electric Facilities. In an emergency, the Company shall notify the City by telephone and email to the office designated by the City before, if reasonably possible, commencing the emergency repair, but in any event as soon as practicable. Within two (2) business days after commencing the repair, the Company shall obtain any required permits and pay any required fees.
3.5. Restoration. After performing the Work, the Company shall, as promptly as weather permits, restore the Public Rights-of-Way in accordance with Minnesota Rules, Part 7819.1100, and applicable City ordinances to the extent consistent with law. After performing the work, the Company shall restore other public property to as good a condition as formerly existed, remove all direct, rubbish, equipment and shall maintain any paved surface in good condition for two (2) years thereafter (the “Restoration Work”). If the Company fails to promptly, as weather permits, complete the Restoration Work, then the City shall, after demand to the Company to cure and the passage of a reasonable period of time following the demand, not to exceed five days, have the right to perform or arrange the Restoration Work at the expense of the Company, including the City’s administrative expenses and overhead.
3.6. Avoidance of Damage. The Company shall determine and implement reasonable measures to prevent the Electric Facilities from causing damage to persons or property. The Company shall determine and implement reasonable measures to protect the Electric Facilities from damage that could be inflicted on the Electric Facilities by persons, property, or the elements. The Company and the City must take protective measures consistent with Minnesota Statutes, Section 216D.05 to avoid damage to and minimize interference with underground facilities when excavating or performing work. The Company shall be responsible for removal of graffiti from Electric Facilities. The Company shall provide notice to the City in the event that any City Utility System is damaged in performing the Work or Restoration Work.
3.7. Coordination of Company Projects and Public Improvements.
(a) For purposes of coordination of City projects and Company projects within the City, the City and Company shall meet at least once annually, on or before April 1 of each calendar year of this Franchise, to review the City’s CIP and the Company’s Major Projects.
(b) Definitions. For the purposes of this section only, the following terms shall have the meanings given.
CIP means the City’s five-year capital improvement plan.
Major Projects means the Company-initiated projects forecasted to take place in the City in the next twenty- four (24) months occurring within the City right-of-way impacting more than seven hundred fifty (750) lineal feet of Electric Facilities.
(c) The parties recognize that the City’s CIP and Company’s Major Projects are subject to change depending on weather, funding, labor, and other issues. Each party agrees to promptly inform the other of any changes to the CIP or Major Projects that may impact the other party. To the greatest extent permitted at law, the City shall treat any data the Company deems and marks sensitive, confidential, proprietary, or critical energy infrastructure as “security information” not subject to public disclosure under the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13.
(d) Either party may, from time to time, request a meeting among appropriate representatives for purposes of discussing coordination of improvement projects or work, and both parties hereby agree to reasonably accommodate such meeting requests.
(e) The City must give the Company reasonable notice of plans for improvements to Public Rights-of-Way when the City has reason to believe that Electric Facilities may affect or be affected by the improvement. The notice must contain, if known:
(1) The nature and character of the improvements,
(2) The Public Rights-of-Way upon which the improvements are to be made,
(3) The extent of the improvements,
(4) The time when the City anticipates the start of work, and
(5) If more than one Public Rights-of-Way is involved, the order in which the work is expected to proceed.
In an emergency situation, the City shall notify the Company by telephone and email to the representative designated by the Company before, if reasonably possible, commencing the emergency work, but in any event as soon as practicable.
3.8. Use of Poles. The Company shall make space available on its poles or towers for City fire, water utility, police or other City facilities upon terms and conditions mutually acceptable to the parties 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 communication company. In addition, the City shall pay for any added cost incurred by the Company because of such use by the City.
3.9. Collocation on Poles. The Company shall require any person collocating facilities on poles owned or controlled by the Company to remove and/or relocate within sixty days of the Company notifying them to remove and/or relocate facilities from any such pole. Nothing in this section shall be understood to affect an existing pole-attachment agreement between the Company and a third party, or to interfere with applicable federal law.
3.10. Streetlight Maintenance. The Company shall comply with all pole and streetlight maintenance requirements in City Code. The Company shall inspect and replace (as needed) the Company’s streetlights in the City every six months.
3.11. Compliance with Laws. In its operations under this Ordinance, the Company shall comply with all applicable federal, state, and local laws, rules, regulations, and orders, including, but not limited to section 16.07 of the City of Saint Paul City Charter. The Company shall not release, spill, or dispose in the Public Rights-of-Way or permit to be released, spilled or disposed in the Public Rights-of-Way, any materials, substances, and wastes regulated as toxic or hazardous to health, natural resources, or the environment by the State of Minnesota, the United States, or any other applicable government authority with jurisdiction (“Hazardous Materials”). In the event the Company releases, spills, or disposes Hazardous Materials in the Public Rights-of-Way, the Company shall comply with all applicable laws, regulations, and lawful governmental orders of federal, state, and local governmental agencies related to such Hazardous Materials. The Company shall remove or remediate any Hazardous Materials caused or permitted by the Company to be released, spilled, or disposed on, in, or immediately adjacent to the Public Rights-of-Way within the City in compliance with all applicable laws, regulations, and lawful governmental orders, and pay or cause to be paid all costs associated therewith, but the Company shall not be responsible for removing or remediating any pre-existing Hazardous Materials encountered in the Public Rights-of-Way within the City. The indemnification terms and conditions of Section 6 (Indemnification) shall apply to all claims made against City by any person, including any governmental agency, who or which asserts any right to costs, damages, or other relief which arise solely or directly from the Company’s negligent acts or failure to act in compliance with any law, rule, regulation, or lawful order governing Hazardous Materials.
3.12. Renewable Energy. The Company shall comply with the renewable energy objectives contained in Minnesota Statutes applicable to Company and hereby confirms its commitment to sustainability stated in its annual Sustainability Report and its clean energy goals outlined in its Integrated Resource Plan filings with the Commission.
Section 4. Relocations.
4.1. Relocation. The Company shall promptly and at its expense, with due regard for seasonal working conditions, permanently remove and relocate its facilities in the Public Rights-of-Way when it is necessary to prevent interference, and not merely for the convenience of the City, in connection with:
(1) A present or future government use of the Public Rights-of-Way for a public project;
(2) The public health or safety; or
(3) The safety and convenience of travel over the right-of-way.
In addition, the City may require Company, at the Company’s expense, to relocate or remove its Electric Facilities from Public Rights-of-Way if City finds that such Electric Facilities impair or will impair an existing or proposed public use of the Public Rights-of-Way.
This Franchise shall not be construed as a waiver or modification of any easement or prescriptive rights acquired by the Company independent of and without reliance by the Company on this Franchise or the Company’s rights under state or county permit.
4.2. Relocation Within Five Years. If the City orders a relocation of Electric Facilities within five years of ordering relocation of the same Electric Facilities at the Company’s expense, the City shall reimburse the Company for non-betterment, actual costs on a time and material basis, without any markup provided, however, that if a subsequent relocation is required because of a natural disaster, or the extension of a City Utility System to a previously unserved area, the Company will be required to relocate the Electric Facilities at its expense.
4.3. Projects with Federal Funding. The City acknowledges that the Company may request reimbursement for utility relocation costs from federal and/or state sources. The City will not object to the Company’s requests for reimbursement from federal or state sources provided such costs do not directly or indirectly reduce funds available to the City from these sources or reduce funds for projects that will benefit the City. The City reserves its right to oppose the Company’s requests if the City has a reasonable basis to believe such a request will negatively impact the feasibility of a project, or reduce funds as described above.
4.4. State Highway Projects. Relocation of Electric Facilities due to a federally-aided state trunk highway project shall be governed by the applicable provisions of Minnesota Statutes, Section 161.46, as may be amended.
Section 5. Tree Trimming. The Company may trim all trees and shrubs in the Public Rights-of-Way of the City as the Company finds may be necessary to avoid interference with the proper construction, operation, repair, and maintenance of any Electric Facilities installed hereunder; provided that the Company shall be subject to permit or other reasonable regulation by the City and provided that the Company shall hold harmless the City from any liability arising therefrom. The Company agrees to work cooperatively with the City regarding the trimming and removal of trees and shrubs and shall at all times comply with the Tree Trimming Agreement dated June 23, 2011 (Contact Number 02-16125-C), as it may be amended, and any such other subsequent agreement between the Company and the City.
Section 6. Indemnification.
6.1. Indemnification. The Company will defend, indemnify, and hold harmless the City from all liability or claims of liability for bodily injury or death to persons, or for property damage, in which the claim alleges a negligent, wrongful act or omission of the Company, or its employees, agents, or independent contractors, in constructing, installing, maintaining, operating, inspecting or issuing permits, or repairing the Company’s Electric Facilities under or pursuant to this Franchise located in the Public Rights-of-Ways. Further, the Company will defend, indemnify, and hold harmless the City from all liability or claims of liability for bodily injury or death to persons, or for property damage, in which the claim is based on the City’s negligent, wrongful act, or omission in issuing the permit, or in failing to properly or adequately inspect or enforce compliance with a term, condition, or purpose of the permit granted to the Company pursuant to this Franchise. Notwithstanding the foregoing, the Company is not required to indemnify the City for losses or claims occasioned any other negligent or otherwise wrongful act or omission of the City. The City shall not be indemnified if the injury or damage results from the performance of acts reasonably deemed hazardous by Company, and such performance is nevertheless ordered or directed by City after notice of Company’s determination.
6.2. Defense of City. In the event that the Company must indemnify the City against a claim, the Company at its sole cost and expense shall defend the City against such claim if the City provides written notice to the Company within a reasonable period wherein the Company is not prejudiced by the lack of such notice. If the Company is required to indemnify and defend, it will thereafter have control of such litigation, including selection of defense counsel. Company agrees, however, to consult in good faith with the City as to who will defend such claim. The Company may not settle such claim 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. The Company, in defending any claim on behalf of the City, shall be entitled to assert every defense or immunity that the City could assert in its own behalf.
Section 7. Vacation of Public Rights-of-Way. The City shall give the Company at least two weeks prior Notice of a proposed vacation of Public Rights-of-Way. The City and the Company shall comply with Saint Paul Code of Ordinances Chapter 116 and Minnesota Rules 7819.3100 and 7819.3200 with respect to any request for vacation. In no case, however, shall the City be liable to the Company for failure to specifically preserve a right-of-way under Minnesota Statutes, Section 160.29.
Section 8. Assignment. Neither party may assign this Franchise without the prior approval of the other party. Notwithstanding the foregoing, if the Company merges with, is acquired by, or acquires another company, it reserves the right to assign this franchise.
Section 9. Franchise Fee.
9.1. Authority. In accordance with section 16.06 (Gross earnings) of the City Charter and Minnesota Statutes Section 216B.36 and 301B.01, the City is authorized and required to impose a franchise fee.
9.2. Initial Franchise Fee. The Company shall pay the City an initial franchise fee based upon the Company’s Gross Revenues under the indicated rate classes (See attached Exhibit #1):
The initial franchise fee attached shall also be reflected in a separate franchise fee ordinance (the “Fee Ordinance”). The franchise fee shall be paid monthly in accordance with section 9.5 (Franchise Fee Payment). The franchise fee does not include permit fees or other costs recovered from the Company by the City.
9.3. Progressive Franchise Fee Credit for Energy Burdened Customers.
(a) Definition. For purposes of this Section 9.3, an “Energy Burdened Customer” means a residential customer who has received energy assistance in the last year, via the State of Minnesota’s federally-funded Energy Assistance Program (EAP), as authorized by 42 U.S.C. §§ 8621-8630. In the event the EAP is terminated, the parties shall agree in writing on a replacement program with substantially similar income eligibility to the EAP. To qualify for the Credit in Section 9.3(b), the Energy Burdened customer must have applied for and received EAP assistance during the current EAP program year (October 1 - September 30), whether or not they are currently receiving EAP assistance.
(b) Credit for Energy Burdened Customers. The City has determined that each Energy Burdened Customer shall receive a monthly franchise fee credit in the amount of fifty percent (50%) of the franchise fee collected from the Energy Burdened Customer on the preceding month’s invoice to said customer (the “Credit”). The Credit shall appear as a separate line item or adjustment clearly identified as the “StP Discount” or any other identifier requested by the City that is possible under the Company’s billing system.
(c) Application of Credit. The Company will individually apply the Credit to Energy Burdened Customers beginning when each such customer receives their respective EAP payment. Such Credit shall continue for each respective Energy Burdened Customer for a period of one (1) year (twelve (12) invoices). Each time an Energy Burdened Customer receives another EAP payment benefit to their respective Company billing account, the one (1) -year timeframe will reset.
(d) Credit Paid. The franchise fee payable to City by Company each month shall be reduced by the amount of the Credit for the immediately preceding month. Notwithstanding the foregoing, in no event shall the Credit be greater than the monthly franchise fee for any Energy Burdened Customer at the time the Credit is applied. The Company shall not be entitled to any reimbursement, offset, or other compensation from the City for Credits applied. The resulting reduction in remitted franchise fees constitutes the City’s contribution to the program as a matter of public policy.
9.4. Franchise Fee Reservation. The initial franchise fee shall remain in effect for the first year of this Franchise. After the first year of the Franchise, the City may adjust the franchise fee by amending the Fee Ordinance; provided, the Company receives Notice of at least sixty (60) days of such proposed Fee Ordinance amendment to the Company. The initial franchise fee and any subsequent modification to the fee shall not become effective until the beginning of a Company billing month at least 60 days after written Notice enclosing such adopted Fee Ordinance has been served upon Company by certified mail. Any change to the franchise fee shall not occur more often than once within any twelve consecutive calendar months and shall be effective upon the same notice requirements. Notwithstanding any amendment to the Fee Ordinance or any other action by the City, the franchise fee set forth herein or in the Fee Ordinance shall never be less than the minimum percentage floor established by the City Charter. Any purported reduction of the franchise fee below the Charter floor shall be void and of no effect with respect to the Company’s payment obligations hereunder. The Company shall pay the franchise fee, so long as this Franchise remains in place and for up to one (1) year from the date of termination of this Franchise while the parties are negotiating a new agreement.
9.5. Franchise Fee Payment. The franchise fee shall be paid monthly within and shall be due the last business day of the month following the period for which the payment is due. The franchise fee does not include permit fees or other costs recovered from the Company by the City. In no event shall the franchise fee paid by the Company be less than the minimum amount required by section 16.06 (Gross earnings) of the City Charter. The time and manner of collecting the franchise fee, including any pass-through, is subject to the approval of the Commission. The Company agrees to make its records available for inspection by the City at reasonable times provided that the City and its designated representative, in accordance with Minnesota Statutes, Section 13.37 of the Minnesota Data Practices Act, agree in writing not to disclose any information which would indicate the amount paid by any identifiable customer or customers or any other information regarding identified customers or constitute nonpublic data, not public data, trade secret information and security information, as is protected from public or unauthorized disclosure.
9.6. Equivalent Fee Requirement. Any franchise granted by the City to other electric-service providers shall require a franchise fee equivalent to the franchise fee required herein. If the Company consents in writing to a new franchise or separate ordinance collecting or failing to collect a fee from a new energy supplier in contravention of this section, the conditions of this section will be waived to the extent of such written consent.
9.7. No Waiver or Release. No acceptance of any payment shall be construed as an accord that the payment made is in fact the correct amount, nor shall such acceptance of the payment be construed as a release of any claim that the City may have for further sums payable under the provisions of this Ordinance. All amounts paid shall be subject to audit and re-computation by the City at the City’s sole cost and expense.
9.8. Franchise Fee Modification.
(a) Change in Law. If a change in applicable law renders the City unable to receive an amount equal to the then-current franchise fee from the Company, the Company shall give Notice of such change to the City and the parties shall meet within thirty (30) days of written notice from either party to discuss and negotiate in good faith on an amendment to this Franchise, taking into account the impact of the change in law.
(b) Challenge to Fee. If any person challenges the collection or any aspect of the franchise fee or payment made to the City pursuant to this Franchise, the Company shall promptly provide notice of such challenge to the City and, to the extent the same is not otherwise prohibited, continue to remit franchise fee payments to the City.
(c) Automatic Reduction. If for any reason the amount or rate of the franchise fee due hereunder or under the Fee Ordinance shall be determined to be in excess of the amount or rate allowed by law, then the amount or rate shall be reduced to the maximum amount or rate permitted by law, and the parties shall follow subsection (a) above.
Section 10. Abandoned Facilities. The Company shall notify the City when Electric Facilities are to be abandoned. The Company shall remove such abandoned Electric Facilities from the right-of-way if required in conjunction with other right-of-way, repair, excavation, or construction, unless this requirement is waived by the City.
Section 11. Reports and Records.
11.1. Inspecting Company Records. The City shall be accorded the right, during normal business hours, to inspect, examine or audit, and copy the books and records of the Company, which relate to the Company’s operations in the City, or upon the City’s request in writing to provide such information relating to the Company’s operations in the City, and which is collected and maintained by the Company in the ordinary course of its business, as the City may reasonably designate, to verify the accuracy of the Company’s franchise fee payments, provided that customer-specific information must remain confidential, subject to Minnesota Statutes, Section 13.37. Any such information shall be provided in a manner consistent with all applicable laws, regulations, and Commission orders.
11.2. Report. The Company shall provide City the location of the Company-owned streetlights within the City, to be updated at least annually. The City shall, to the extent possible, treat all reported information shared by the Company as proprietary, confidential, and non-public data pursuant to the Minnesota Data Practices Act and applicable federal law.
Section 12. Provisions of Ordinance.
12.1. 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. This Franchise and other ordinances of the City shall be construed to give effect to all provisions to the maximum extent possible. In the event of a direct conflict between the provisions of any other City ordinance and this Franchise, the terms of this Franchise shall govern.
12.2. Limitation on Applicability. This Ordinance constitutes Franchise between the City and the Company as the only parties, and no provision of this Franchise shall in any way inure to the benefit of any third person (including the public at large) so as to constitute any such person as a third party beneficiary of the Franchise 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.
12.3. Early Termination. The City may terminate this Franchise by providing written notice to the Company at least twelve (12) months before the effective termination date (“termination notice”). The City may terminate the Franchise only upon a vote of two-thirds of all the members of the City Council.
12.4. Point of Contact. Company shall provide the City with the contact information of the person designated as the single point of contact for the City on issues related to this Franchise, reliability and service issues, and other such matters. The Company shall provide the City with updated point of contact information as necessary during the term hereof.
12.5. Communications. The parties agree that open communication will facilitate the partnership between the parties established by this Franchise. Each party will identify a point of contact to expedite communication and responses by separate communication, which contact person may be updated from time to time. Each party agrees that, at a minimum and absent extenuating circumstances, they shall acknowledge receipt of an inquiry from the other party within five (5) business days.
Section 13. Amendment Procedure. Either party to this Franchise may at any time propose that the Franchise be amended to address a subject of concern and the other party will consider whether it agrees that the amendment is mutually appropriate. If the amendment is agreed upon, this Ordinance may be amended at any time by the City passing a subsequent ordinance in compliance with the City Charter declaring the provisions of the amendment, which shall be effective upon the filing of the Company’s written consent thereto with the City Clerk within sixty (60) days after the date of final passage by the City of the amendatory ordinance.
Section 14. Previous Franchises Superseded. This Ordinance supersedes any previous electric franchise granted to the Company or its predecessor.
This Ordinance shall take effect and be in force thirty (30) days following its passage, approval and publication.