Benson Municipal Utilities Franchise Ordinance

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 An Ordinance granting Benson Municipal Utilities, its successors and assigns, a non-exclusive franchise to construct, operate, repair and maintain in the city of Benson, Minnesota, and Electric Distribution System and Transmission Lines, including necessary poles, lines, fixtures and appurtenances, for the furnishing of electric energy to a portion of the city, its inhabitants, and others, and to use the public ways and public grounds of the city for such purposes; and prescribing certain terms and conditions thereof.
The City Council of the City of Benson, County of Swift, Minnesota, Ordains:

 For purpose of this Ordinance, the following capitalized terms shall have the following meanings:
City.  The City of Benson, County of Swift, State of Minnesota.
City Utility System.  Facilities used for providing public utility service owned or operated by the City or agency thereof, including sewer, water service, and electric distribution.
Franchise.  The grant of rights made by the City to the Utilities Department in this Ordinance, subject to its terms and conditions.
Notice.  A writing served by any party or parties on any other party or parties.  Notice to Utilities Department shall be mailed or hand delivered to Benson Municipal Utilities, 1410 Kansas Avenue, Benson, MN 56215.  Notice to the City shall be mailed to 1410 Kansas Avenue, Benson, MN 56215.  Any party may change its respective address for the purpose of this Ordinance by written notice to the other parties.
Ordinance.  This franchise ordinance, also referred to as the Franchise.
Public Way.  Any highway, street, alley or other public right-of-way within the City.
Public Ground.  Land owned or otherwise controlled by the City for utility easements, park, trail, walkway, open space or other public property, which is held for use in common by the public or for public benefit.
Utilities Department.  Benson Municipal Utilities, a Minnesota Municipal Utility, its successors and assigns including all successors or assignees that own or operate any part or parts of the facilities subject to this Franchise.
2.1 Grant of Franchise.  The City hereby grants the Utilities Department, for a period of 10 years from the date this Ordinance is passed and approved by the City, the right to transmit and furnish electric energy, water, and sewer services for any public or 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 Utilities Department may construct, operate, repair and maintain facilities in, on, over, under and across the Public Ways and Public Grounds, subject to the provisions of this Ordinance.  Utilities Department 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.
2.1  Effective Date.  This Franchise shall be in force and effect from and after the adoption of this Ordinance and publication as required by law and upon acceptance by the Utilities Department.
3.1 General. Facilities shall be located, constructed and maintained by the Utilities Department:  (i) in as safe and secure a condition or manner as reasonably possible, (ii) so as not to interfere with the safety and convenience of ordinary travel along and over Public Ways, and (iii) so as not to disrupt or interfere with the normal use or operation of any Public Ways or Public Ground.  Facilities may only be located on Public Ground as determined by the City in its sole discretion.  The Utilities Department’s construction, reconstruction, operation, repair, maintenance, location and relocation of facilities shall be subject to the terms of this Ordinance and such other regulations of the City consistent with authority granted the City to manage its Public Ways and Public Grounds under state law, to the extent not inconsistent with a specific term of this Ordinance.
3.2  Construction; Maintenance; Repairs.  Whenever the Utilities Department desires to open or disturb any Public Way or Public Ground for the purpose of constructing, maintaining, or repairing its facilities, it shall give the City reasonable advance Notice.  The Utilities Department shall not, during the progress of the work, endanger or unnecessarily obstruct the passage of traffic or the normal and customary use of the Public Ways and Public Ground.  During the progress of such work, the Utilities Department shall keep the affected Public Ways or Public Ground guarded in order to avoid accidents to persons or property.  All work performed by the Utilities Department shall comply with all applicable federal, state, and local laws, rules, and regulations.
3.3   Restoration.  After undertaking any work requiring the opening of any Public Way or Public Ground, the Utilities Department shall restore the Public Ways or Public Grounds to as good a condition as before the work commenced.  All work shall be completed as promptly as weather permits.
3.4  Avoidance of Damage.  The Utilities Department must take reasonable measures to prevent its facilities from causing damage to persons or property.  The Utilities Department must take reasonable measures to protect its facilities from damage that could be inflicted on its facilities by persons, property, or the elements.
3.5 Emergency Response.  As emergency first-responders, when a public safety concern exists both the City and Utilities Department shall respond to emergencies within the City without additional direct fee or expense to either City or Utilities Department.
3.6  Field Locations.  The Utilities Department shall provide field locations for all its underground Facilities within the city consistent with the requirements of Minnesota Statutes, chapter 216D.
3.7 Shared Use of Poles; Street Lights.  The Utilities Department shall make space available on its poles or towers for City fire, police or other City facilities whenever such use will not interfere with the use of such poles or towers by the Utilities Department or the existing facilities, if any, of another Utility Service Provider.  Street name signs, “no parking” signs and other traffic control signs, as required and provided by the City, may be installed on the electric and street light poles within the Utilities Department service area.
3.8 Tree Trimming.  Subject to such procedures, regulation and supervision as the Council may establish, the Utilities Department may, at its cost, trim all trees and shrubs in the Public Ways to the extent the Utilities Department finds it necessary to avoid interference with the proper construction, operation, repair and maintenance of any of the Utilities Department’s facilities installed and maintained hereunder.
In the event the City reasonably determines that it is necessary for the Utilities Department to move any part of its facilities because the City has determined to change, move or improve its Public Ways or that the facilities have become or will become a substantial impairment to the existing or imminent public use of Public Ground, upon reasonable Notice by the City to the Utilities Department, then the Utilities Department will move its facilities.
The Utilities Department shall comply with City ordinances and Minnesota Statutes, Section 216D.01 et seq., as they may be amended from time to time.  The Utilities Department shall maintain records describing the exact location of all abandoned and retired facilities within the City, produce such records at the City’s request and comply with the location requirements of Section 216D.04 with respect to all facilities, including abandoned and retired facilities.
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 Utilities Department, succeed to all the rights and obligations of the City provided in this Ordinance.
7.1 Authority.  The City reserves all rights under Minnesota Statutes chapter 216B.36 or other law to require a franchise fee at any time during the term of, and in consideration for, this Franchise.
7.2  Franchise Fee Statement and Schedule.  A franchise fee is hereby imposed on the Utilities Department in accordance with a fee schedule determined on an annual basis by the City Council.
7.3 Account fee.  This fee is an account-based fee and not a meter-based fee.  In the event that an entity covered by this ordinance has more than one meter, but only one account, only one fee shall be assessed to that account.  In the event that any entities covered by this ordinance have more than one account, each account shall be subject to the appropriate fee.  In the event a question arises as to the proper fee amount for any account, the highest possible fee amount shall apply.
7.4  Payment.  Franchise fees are to be collected by the Utilities Department and submitted to the City on the twentieth day of each month.
8.1 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.  Where a provision of any other City ordinance conflicts with the provisions of this Ordinance, the provisions of this Ordinance shall prevail.
8.2 Limitation on Applicability.  This Ordinance constitutes a franchise agreement between the City and Utilities Department 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 9.  AMENDMENT PROCEDURE.  The Utilities Department’s rights hereunder are subject to the police power of the City to adopt and enforce ordinances necessary to the health, safety, and welfare of the public, and this Franchise may be amended or repealed by the City as deemed necessary or appropriate in the exercise of such power.  Additionally, either party may propose at any time that this Franchise Ordinance be amended.  The City may then pass a subsequent ordinance declaring the provisions of the amendment.
Adopted by the City Council of the City of Benson this 17th day of November, 2014.
                                                                                  /s/ Paul Kittelson
                                                                                                Mayor /s/ Glen Pederson
City Clerk
ATTEST as to form: Ben Wilcox, City Attorney
First Reading:           November 3, 2014    
Second Reading:      November 17, 2014    
Published:                November 26, 2014

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