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HomeMy WebLinkAbout5028-2 /21/2011ORDINANCE NO. 5028 AN ORDINANCE GRANTING TO MIDAMERICAN ENERGY COMPANY, ITS SUCCESSORS AND ASSIGNS, THE RIGHT AND NON-EXCLUSIVE FRANCHISE TO ACQUIRE, CONSTRUCT, ERECT, MAINTAIN AND OPERATE IN THE CITY OF WATERLOO, IOWA AN ELECTRIC SYSTEM AND COMMUNICATIONS FACILITIES AND TO FURNISH AND SELL ELECTRIC ENERGY TO THE CITY AND ITS INHABITANTS, AND AUTHORIZING THE CITY TO COLLECT FRANCHISE FEES FOR A PERIOD OF 10 YEARS. BE IT ENACTED by the City Council of the City of Waterloo, Iowa: Section 1. There is hereby granted to MidAmerican Energy Company, an Iowa corporation, hereinafter called the "Company," and its successors and assigns, the right and non-exclusive franchise to acquire, construct, erect, maintain and operate in the City of Waterloo, Iowa, hereinafter called the "City," a system for the transmission and distribution of electric energy and communications signals along, under, over and upon the streets, avenues, alleys and public places to serve customers within and without the City, and to furnish and sell electric energy to the City and its inhabitants. For the term of this franchise the Company is granted the right of eminent domain, the exercise of which is subject to City Council approval upon application by the Company. This franchise shall be effective for a ten (10) year period from and after the effective date of this ordinance. Section 2. The rights and privileges hereby granted are subject to the restrictions and limitations of Chapter 364 of the Code of Iowa 2009 or as subsequently amended or changed. The Company agrees that it will exercise all rights and privileges granted hereunder in compliance with applicable federal, state and local laws, rules and regulations. Section 3. The Company shall, after advance notice to the City (except in the case where Company has determined an emergency exists, in which case Company shall provide such notice to City as soon as reasonably possible), have the right to erect all necessary poles and to place thereon the necessary wires, fixtures and accessories as well as excavate and bury conductors for the distribution of electric energy and communications signals in and through the City, but all said conduits and poles shall be placed as not to unreasonably interfere with the construction of any water pipes, drain or sewer, or the flow of water therefrom, which have been or may hereafter be located by authority of the City. The City, upon notice to the Company, shall have the right to use any of the Company's poles, posts, towers or conduits for any City alarm, City control, or City communication purpose, but not for resale of communication service, to the extent that the use does not interfere with the Company's use thereof. The City shall hold the Company harmless from any damages arising from City's use of the Company's structures. The charge, if any, to City for such use shall be in accordance with applicable law, rule or regulation. Section 4. The Company is authorized and empowered to prune or remove at Company expense any tree extending into any street, alley or public grounds to maintain electric reliability, safety, Ordinance No. 5028 Page 2 to restore utility service and to prevent limbs, branches or trunks from interfering with the wires and facilities of the Company. The pruning and removal of trees shall be done in accordance with current nationally accepted safety and utility industry standards and federal, state and local law, rules and regulations. Section 5. In accordance with Iowa law, including but not limited to Company's tariff on file with and made effective by the Iowa Utilities Board as may subsequently be amended ("Tariff"), the Company shall, at its own cost and expense, locate and relocate its existing facilities or equipment in, on, over or under any public street or alley in the City in such a manner as the City may reasonably require for the purposes of facilitating the construction, reconstruction, maintenance or repair of such street or alley. Notwithstanding the foregoing, the Company shall have no responsibilities under this Section with respect to facilities located in private easements (whether titled in Company exclusively or in Company and other entities). The City and the Company shall work together to develop a suitable alternative route or construction method so as to eliminate or minimize the cost and expense to the Company of relocation of Company installations. If the City determines, in its sole discretion, that a reasonable alternative route for the street, alley or public improvements or an alternative construction method is available which would not cause the relocation of the Company installations, the City shall select said alternative route, or construction method. The City shall be responsible for surveying and staking the right-of-way for City projects that require the Company to relocate Company facilities. If requested, the City shall provide, at no cost to the Company, copies of the relocation plan and profile and cross section drawings. If tree removals must be completed by the City as part of the City's project and are necessary whether or not utility facilities must be relocated, the City at its own cost shall be responsible for said removals. If the timing of the tree removals does not coincide with the Company facilities relocation schedule and the Company must remove trees that are included in the City's portion of the project, the City shall either remove the trees or reimburse the Company for the expenses incurred to remove said trees. If project funds from a source other than the City are available to pay for the relocation of utility facilities, the City shall attempt to secure said funds and provide them to the Company to compensate the Company for the costs of relocation. Section 6. In making excavations in any streets, avenues, alleys and public places for the installation, maintenance or repair of conductor, conduits or the erection of poles and wires or other appliances, the Company shall not unreasonably obstruct the use of the streets, and shall replace the surface, restoring it to the condition as existed prior to the Company excavation. In the event that multiple parties make excavations in connection with the same project, the Company will be responsible to restore and replace all areas that it excavated and to take reasonable steps to coordinate its activities with such other parties. The Company shall not be required to restore or modify public right or way, sidewalks or other areas in or adjacent to the Company project to a condition superior to its immediate previously existing condition. Company agrees any replacement of road surface shall conform to current City code regarding its depth and composition. Ordinance No. 5028 Page 3 Section 7. Action by the City to vacate a street, avenue, alley, public ground or public right-of-way shall not deprive the Company of its right to operate and maintain existing facilities on, below, above, or beneath the vacated property. Prior to the City abandoning or vacating any street, avenue, alley or public ground where the Company has electric facilities in the vicinity, the City shall provide Company with not less than sixty (60) days advance notice of the City's proposed action and, upon request, grant the Company a utility easement covering existing and future facilities and activities. If the City fails to grant the Company a utility easement for said facilities prior to abandoning or vacating a street, avenue, alley or public ground, the City shall at its cost and expense obtain easements for existing Company facilities. Section 8. The Company shall not be required to relocate, at its cost and expense, Company facilities in the public right of way that have been relocated at Company expense at the direction of the City in the previous five years. Section 9. Pursuant to relocation of Company facilities as may be required by Sections 3, 5, 6, 7 and 8 hereof, if the City orders or requests the Company to relocate its existing facilities or equipment in order to facilitate the project of a commercial or private developer or other non-public entity, the City shall reimburse the Company or the City shall require the developer or non-public entity to reimburse the Company, for the cost of such relocation as a precondition to relocation of Company's existing facilities or equipment. The Company shall not be required to relocate in order to facilitate such private project at its expense. Section 10. The Company shall indemnify and save harmless the City from any and all claims, suits, losses, damages, costs, expenses, or attorneys' fees incurred on account of injury or damage to any person or property, to the extent caused or occasioned by the Company's negligence in construction, reconstruction, excavation, operation or maintenance of the electric facilities authorized by this franchise; provided, however, that the Company shall not be obligated to defend, indemnify and save harmless the City for any costs or damages to the extent arising from the negligence of the City, its officers, employees or agents. Section 11. Upon reasonable request the Company shall provide the City, on a project -specific basis, information indicating the horizontal location, relative to boundaries of the right of way, of all equipment which it owns or over which it has control that is located in city right of way ("Information"). The Company and City recognize the Information provided may, under current Iowa law, constitute public records, but that nonetheless, some of the Information provided will be confidential under state or federal law or both. Therefore, the City shall give notice to Company at least 15 days in advance of any proposed release of Information in order for the Company to seek an injunction or other appropriate action to protect the confidentiality of the Information. The Company shall cooperate with all requests of City to identify that portion of the Information that is not to be disclosed. The City Ordinance No. 5028 Page 4 shall not be liable for the disclosure of any Information which the Company did not indicate to be confidential. Section 12. The Company shall construct, operate and maintain its facilities in accordance with the applicable regulations of the Iowa Utilities Board or its successors and Iowa law. Section 13. During the term of this franchise, the Company shall furnish electric energy in the quantity and quality consistent with and in accordance with the applicable regulations of the Iowa Utilities Board and the Company's Tariff. Section 14. There is hereby imposed upon and shall be collected from persons located within the corporate limits of the City who are retail electric customers of the Company receiving service pursuant to the Tariff, a franchise fee of the gross receipts from each revenue class as set forth below, minus uncollectible amounts, derived by the Company from the delivery and sale of electric energy to such customers. The Company shall remit such franchise fees to the City within sixty (60) days of collection. • Residential Customers zero ( 0 ) percent • Commercial Customers zero ( 0 ) percent • Industrial Customers zero ( 0 ) percent • Public Authority Customers zero ( 0 ) percent Section 15. The City may, as allowed by Iowa law, exempt certain types or classes of sales from imposition of the franchise fee, or modify, decrease or eliminate the franchise fee. The City does therefore exempt the customer classes or customer groups shown below from paying franchise fees. • Customer classes initially exempted by the City: none. The City reserves the right to cancel any or all the franchise fee exemptions and also reserves the right to grant exemptions to additional customers or customer classes in compliance with Iowa law and Section 16 of this ordinance. Section 16. The City agrees to modify the level of franchise fees imposed only once in any 24 -month period. Any such ordinance exempting certain types or classes of customers, increasing, decreasing, modifying or eliminating the franchise fee shall become effective, and billings reflecting the change shall commence, on an agreed upon date which is not less than sixty (60) days following written notice to the Company by certified mail. The Company shall not be required to implement such new ordinance unless and until it determines that it has received appropriate official documentation of final action by the city council. Section 17. The City recognizes the administrative burden that collecting franchise fees may impose upon the Company and that the Company requires lead time to commence collecting said franchise fees. The Company will commence collecting franchise fees on or before the first Company billing cycle of the first calendar month that is ninety (90) days after receipt of information required of the City to implement the franchise fee, Ordinance No. 5028 Page 5 including the City's documentation of consumers subject to or exempted from the City -imposed franchise fee. The City shall provide the information and data required in a form and format reasonably acceptable to the Company. The Company will, if requested by the City, provide the City with a list of premises considered by the Company to be within the corporate limits of the City. Section 18. The City shall be solely responsible for identifying customers subject to or exempt from paying the City imposed franchise fee. The City shall be solely responsible for notifying Company of its corporate limits, including, over time, annexations or other alterations thereto, and customers that it wishes to subject to, or to the extent permitted by law, exempt from paying the franchise fee. The City shall provide to the Company, by certified mail, copies of annexation ordinances in a timely manner to ensure appropriate franchise fee collection from customers within the corporate limits of the City. The Company shall have no obligation to collect franchise fees from customers in annexed areas until and unless such ordinances have been provided to the Company by certified mail. The Company shall commence collecting franchise fees in the annexed areas no sooner than sixty (60) days after receiving annexation ordinances from the City. Section 19. The City shall indemnify the Company from claims of any nature arising out of or related to the imposition and collection of the franchise fee, to the extent such claims arise from or relate to the negligent acts or omissions, or the willful misconduct, of the Company, its officers, employees or agents. Section 20. The Company shall remit franchise fee revenues to the City no more frequently than on or before the last business day of the month following each quarter as follows. • January, February and March • April, May and June • July, August and September, and • October, November and December The Company shall provide City with written notice at least thirty (30) days in advance of any changes made in this collection schedule, including any alterations in the calendar quarters or any other changes in the remittance periods. Section 21. The City recognizes that the costs of franchise fee administration are not charged directly to the City and agrees it shall, if required by the Company, reimburse the Company for any initial or ongoing costs incurred by the Company in collecting franchise fees that the Company and the City, as a result of good - faith negotiation, deem to be in excess of typical costs of franchise fee administration. Section 22. The Company shall not, under any circumstances, be required to return or refund any franchise fees that have been collected from City customers and remitted to the City. In the event the Company is required to provide data or information in Ordinance No. 5028 Page 6 defense of the City's imposition of franchise fees or the Company is required to assist the City in identifying customers or calculating any franchise fee refunds for groups of or individual customers, the City shall reimburse the Company for the reasonable and necessary expenses incurred by the Company to provide such data or information. Section 23. The obligation to collect and remit the fee imposed by this ordinance is modified or repealed if: 1. Any other person is authorized to sell electricity at retail to City consumers and the City imposes a franchise fee or its lawful equivalent at zero or a lesser rate than provided in this ordinance (in either instance a "Lesser Fee"), in which case the obligation of Company to collect and remit franchise fees shall be modified to match the Lesser Fee on the effective date of the other entity's franchise fee ordinance. 2. The City adds additional territory by annexation or consolidation and is unable or unwilling to impose the franchise fee upon all persons selling electricity at retail to consumers within the additional territory, in which case the franchise fee imposed on the revenue from sales by Company in the additional territory shall be zero or equal to that of the lowest fee being paid by any other retail seller of electricity within the additional territory on the effective date of the annexation or consolidation; or 3. Legislation is enacted by the Iowa General Assembly, the Supreme Court of Iowa issues a final ruling regarding franchise fees, or the Iowa Utilities Board issues a final nonappealable order (collectively, "final franchise fee action") that modifies, but does not repeal, the ability of the City to impose a franchise fee or the ability of Company to collect from City customers and remit franchise fees to City. Within sixty (60) days of final franchise fee action, the City shall notify Company and the parties shall meet to determine whether this ordinance can be revised, and, if so, how to revise the franchise fee on a continuing basis to meet revised legal requirements. After final franchise fee action and until passage by the City of revisions to the franchise fee ordinance, Company may, after prior consultation with the City, temporarily discontinue collection and remittance of the franchise fee if it reasonably believes it is required to do so in order to comply with revised legal requirements. Contrary provisions of this ordinance notwithstanding, the Company shall be completely relieved of its obligation to collect and remit to the City the franchise fee, effective as the date specified below, and Company shall not be liable to the City for failure to collect and remit franchise fees under any of the following circumstances, as determined to exist in the reasonable discretion of Company: Ordinance No. 5028 Page 7 a. The imposition, collection or remittance of a franchise fee is ruled to be unlawful by the Supreme Court of Iowa, effective as of the date of such ruling or as may be specified by that Court. b. The Iowa General Assembly enacts legislation making imposition, collection or remittance of a franchise fee unlawful, effective as of the date lawfully specified by the General Assembly. C. The Iowa Utilities Board, or its successor agency, denies the Company the right to impose, collect or remit a franchise fee, provided such denial is affirmed by the Supreme Court of Iowa, effective as of the date of the final agency order from which the appeal is taken. Section 24. Pursuant to Chapter 480A.6 of the Code of Iowa, the City shall not, if it collects a franchise fee from the Company, impose upon or charge to the Company right of way management fees or fees for permits for Company construction, maintenance, repairs, excavation, pavement cutting or inspections of Company work sites and projects, or related matters. Section 25. Either City or Company may terminate this franchise if the other party shall be materially in breach of its provisions. Upon the occurrence of a material breach, the non - breaching party shall provide the breaching party with notification by certified mail specifying the alleged breach. The breaching party shall have sixty (60) days to cure the breach, unless it notifies the non -breaching party that additional time is needed and the parties agree upon a longer period for cure. If the breach is not cured within the cure period, the non -breaching party may terminate this franchise. The City shall have the option of requiring specific performance by Company as an alternative to pursuing a remedy at law, but only after good faith negotiations between the City and Company intended to resolve the circumstance giving rise to the material breach fail to result in a reasonable resolution. A party shall not be considered to be in breach of this franchise if it has operated in compliance with state or federal law, or if the alleged breach is the result of the actions of a third party or the other party. Neither party shall be excused from performing in accordance with this franchise due to the failure of the other party to insist upon or seek compliance with the franchise terms. Section 26. If any section, provision, or part of this ordinance shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the ordinance as a whole or any section, provision, or part thereof not adjudged invalid or unconstitutional. Section 27. The Company shall not assign its interest in the franchise without approval of the City Council, which approval shall not be unreasonably withheld, provided that such approval shall be promptly given if the assignee has satisfied all applicable requirements of the Iowa Utilities Board to provide electric service to an area that includes the City. Ordinance No. 5028 Page 8 Section 28. This ordinance and the rights and privileges herein granted shall become effective and binding upon its approval and passage in accordance with Iowa law and the written acceptance by the Company. The City shall provide Company with an original signed and sealed copy of this ordinance within ten (10) days of its final passage. The Company shall, within thirty (30) days after City Council approval of this ordinance, file in the office of the clerk of the City its written acceptance of all the terms and provisions of this ordinance. Following City Council approval, this ordinance shall be published in accordance with the Code of Iowa. The effective date of this ordinance shall be the date of the Company's acceptance, but in any event not sooner than the date of publication. In the event that the Company does not file its written acceptance of this ordinance within thirty (30) days after its approval by the City Council, this ordinance shall be void and of no effect. Section 29. Upon the effective date of this ordinance, all prior electric franchises granted to the Company to furnish electric service to the City and its inhabitants are hereby repealed and all other ordinances or parts of ordinances in conflict herewith are also hereby repealed. INTRODUCED: February 21, 2011 PASSED 1ST CONSIDERATION: February 21, 2011 PASSED 2ND CONSIDERATION: February 21, 2011 PASSED 3RD CONSIDERATION: February 21, 2011 PASSED AND ADOPTED this 21St day of February, 2011. /— /" Az/ Ernest G. Clark, Mayor ATTEST: c Suzy SchAres, CMC City Clerk CERTIFICATE I, Suzy Schares, City Clerk of the City of Waterloo, Iowa, do hereby certify that the preceding is a true and complete copy of Ordinance No. 5028, as passed and adopted by the Council of the City of Waterloo, Iowa, on the 21St day of February, 2011. Witness my hand and seal of office this 21St day of February, 2011. SEAL Suzy ScIares, CMC City Clerk STATE OF IOWA, Black hawk County I do solemnly swear that the annexed copy of ORDINANCE 5028 notice was published in the WATERLOO/CEDAR FALLS COURIER -, a daily newspaper printed in WATERLOO, Black Hawk County, Iowa, for 1 issues commencing on 03/11/2011, in the issues of 03/11/2011 of said newspaper, and that the annexed rate of 1UY.1 advertising is the regular legal rate of said newspaper, and that the following is a correct bill for publishing said notice. Printer's Bill $196.60 'i Signed Subscribed and sworn to before me this _J5 day of RLZ"beL tats Public Received of the sum of Dollars in full for publication of the above invoice Notary Seal: -4MW AMI NIUM PUB Itis401 (N) (00) 08V W1P of 21 XIS 18 , E nNO) XIS M SMON 1,� 11 L' 'IMM -9(N) 08N (N)146164 (00) (N) d N S80 waw 9ls ""ON El NVEM M . 1 1. 3NIANad Ad0183