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HomeMy WebLinkAbout3551-05/02/1988 ORDINANCE NO. 3551 AN ORDINANCE GRANTING UNTO IOWA PUBLIC SERVICE COMPP DY, ITS SUCCESSORS AND ASSIGNS, THE ANDRIGHT, OPERATERAASHPLANTS, AUTHORITY TO ERECT, MAINTAIN TRANSMISSION, AND DISTRIBUTION SYSTEMS AND TO FURNISH CAS SERVICE FOR PUBLIC AND PRIVATE USE WITHIN THE CITY OF WATERLOO, IOWA, (HEREIN "THE CITY" ) FOR A TERM OF TWENTY ( 20) YEARS, AND TO ESTABLISH THE CONDITIONS REQUIRED AND MANNER OF USE OF STREETS AND PUBLIC GROUNDS OF THE CITY IN WHICH SAID GAS WORKS MAY BE LOCATED, AND TO PROVIDE FOR NOTICE OF DAMAGED PIPELINES► AND TO CONFER THE POWER OF CONDEMNATION OF PRIVATE PROPERTY, AND PROVIDING FOR THE REPEAL OF ORDINANCE NO. 2299 . BE IT ORDAINED BY THE COUNCIL OF THE CITY OF WATERLOO, IOWA, as follows: Section 1. A non-exclusive franchise is hereby granted unto Iowa Public Service Company, a corporation, its successors and assigns, (herein "Grantee" ) , for a term of twenty ( 20) years commencing with the date this Ordinance becomes effective, to acquire, erect, maintain and operate a gas plant or plants, gas transmission, storage, and distribution systems and related equipment and appurtenances, used or to be used in the production, storage, transmission or distribution of natural gas, manufactured gas , liquefied petroleum gas , or other hydrocarbon gases, or any mixture of gases, (herein "Gas Utilities" ) within the present and subsequent corporate limits of the City, and Grantee is hereby granted the right, franchise and authority to construct, install and maintain such Gas Utilities over, across and under the streets, alleys , and public grounds of the City, and any private lands therein, and to furnish, supply and distribute gas to the City and its inhabitants and others within and without the corporate limits for any and all lawful purposes , including public and private use, and upon such terms, conditions, restrictions and regulations as are adopted in this Ordinance. Section 2 . The rights and privileges granted to the Grantee, as franchisee under this franchise ordinance, and including the Grantee' s successor and assigns, are subject to: i. applicable provision of the Iowa Code, including but not limited to, Chapter 364 thereof; 2. the Code of Ordinance of the City of Waterloo, pertaining to but not limited to Excavations ; Subdivision Regulations; Vegetation; and Zoning; and 3 . any other applicable statute or regulation promulgated by Federal or State agencies under federal or state laws; all as said laws, codes, ordinances, statutes and regulations are presently enacted. The Grantee acknowledges the validity of the aforementioned laws , codes, ordinances, statutes and regulations as they may exist as of the effective date of this ordinance, provided, however, that the Grantee reserves the right to challenge or contest the City' s future interpretation or application of any of said laws, codes, ordinances, statutes, and regulations. The City may make such lawful and reasonable amendments to the provisions of the Code of Ordinances of the City of Waterloo affecting or regulating the Grantee in its operation of the gas utility, as the City deems necessary and proper. The franchise granted herein shall not restrict in any manner the right of the City in the exercise of any power which it now has or which may hereafter be authorized or permitted by the laws of the State of Iowa. Ordinance No. 3551 Page 2 Section 3 . If Grantee, in the installation, erection, maintenance or operation of its Gas Utilities, shall cut into or take up any pavement or sidewalk or make any excavation in any street, alley, or public grounds within the corporate limits of the City, the same shall be done as near as may be in a manner resulting in minimum interference with the public use of such street, alley, or public grounds. Upon completion of such work, Grantee shall replace any pavement or sidewalk removed and shall restore the premises to as good condition as at commencement of the work. Section 4. Grantee shall have the power to appropriate and condemn private property for the purpose of providing gas service to the extent necessary to serve a public use and in a reasonable relationship to an overall plan of transmitting or distributing gas service. The question of necessity for the taking of any private property by the Grantee by use of the right of eminent domain and condemnation shall be determined by the City Council by Resolution. Section 5. If the City shall propose to improve or make a public improvement in any street, alley, or public way, (herein "Public Improvement" ) in a manner that may conflict with existing Gas Utilities, the contractor awarded the Public Improvement contract shall ascertain the exact number, location and depth of Gas Utilities and at all times protect Gas Utilities from damage during the performance of the contract. The Grantee shall, upon Resolution of the City Council, temporarily relay, relocate or guard barriers, Gas Utilities that are deemed in conflict with the Public Improvement, at its own expense, at a time that will not cause unreasonable inconvenience to the Grantee or its customers. Section 6 . If any party shall damage any part of the Gas Utilities or shall cause any weakening of the structural or lateral support thereof, such party shall immediately notify Grantee of the location, time of the occurrence, and nature of the damage. If the damage causes or contributes to uncontrolled venting of gas, such party shall give warnings and use safeguards as may be necessary to prevent injury to persons and property in the vicinity of such venting gas, including evacuation of buildings, shall immediately notify the City as well as Grantee, and shall maintain reasonable warnings and safeguards until all damage has been repaired. Section 7. The Grantee shall defend at its own expense, in the name and on behalf of the City, and shall indemnify and save harmless the City from any and all claims, suits, losses, damages, costs or expenses, whether caused or contributed to by the active or passive negligence of the Grantee, or by the passive negligence of the City, on account of injury or damage to any person or property, caused or occasioned, or allegedly caused or occasioned, in whole or in part, by reason of or arising out of the construction, reconstruction, excavation, operation or maintenance by the Grantee of the gas utilities authorized by this franchise. However, the Grantee shall not be obligated to defend, indemnify and save harmless the City for any costs or damages arising from the negligence of the City, its officers, employees or agents where the Grantee is not negligent in any way. In situations where the damage was caused or contributed to by the active or passive negligence of the Grantee and the active negligence of the City, the principals of comparative negligence in effect in Iowa shall apply as between the Grantee and the City. The duty of the Grantee to defend, and save harmless and indemnify the City shall extend to officers, employees and agents of the City to the extent the City is obligated to defend, save harmless and indemnify by law. Ordinance No. 3551 Page 3 Section 8. This franchise shall apply to and bind the City and the Grantee and their successors and assigns; provided that any assignment by the Grantee shall be subject to the approval of the City Council by resolution, which approval shall not be unreasonably withheld. The City expressly reserves the right to terminate the franchise granted herein if the Grantee breaches any of the provision of this franchise; provided, however, there shall be no termination if the Grantee shall correct the breach within sixty (60 ) days written notice provided by the City to do so. The Grantee shall not be excused from complying with any of the terms and conditions of this franchise by any failure of the City to insist upon or seek compliance with any such terms or conditions. Further it is agreed that the subject matter of this franchise is unique and may be enforced by specific performance, at the City' s option, since a remedy at law may be inadequate. Section 9. Ordinance No. 2299 is hereby repealed, such repeal to be effective as of the effective date of this Ordinance. Section 10 . This Ordinance and the rights and privileges herein granted are subject to the approval of a majority of the electors of the City voting at the next general or municipal election or at a special election called for that purpose. The cost and expense of the election relating to the franchise provided for herein shall be paid by the Grantee. Section 11. The Grantee, within fourteen ( 14) days after the approval of this Ordinance by a vote of the people, shall file in the office of the City Clerk its acceptance in writing of all terms and provision of this Ordinance. Section 12. This Ordinance shall become effective upon passage by the City Council, approval of the voters as provided in Section 10 hereof; acceptance by the Grantee as provided in Section 11 hereof; and publication as required by law. Following voter approval and acceptance of this Ordinance by the Grantee, this Ordinance shall be published in the Waterloo Courier. The effective date of this Ordinance shall be the date of publication. Section 13 . If any of the provisions of this franchise ordinance are for any reason declared to be illegal or void, then the lawful provisions of this franchise ordinance, which are severable from said unlawful provisions, shall be and remain in full force and effect, the same as if the franchise ordinance contained no illegal or void provisions. In the event any provision or provisions are ruled illegal or void by a court of competent jurisdiction, the City and the Grantee shall forthwith amend this franchise to insert a successor provision that complies with the applicable court ruling. Section 14 . A performance audit shall be conduced at the end of ten ( 10) years after the acceptance of the Franchise under Section 11 by a group comprised of representative citizens who shall be appointed by the Mayor with the consent of the City Council in office, the Mayor and City Council in office, and representatives of the Grantee. Section 15. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Ordinance No. 3551 w, Page 4 7 _ s HS � E+ tr ,� • -I n H H r r.a tr! H Passed and adopted by the City Council of the City of Waterloo, Iowa, on the 2nd day of May, 1988 , and approved by the • Mayor on the 4th day of May, 1988 . ry � `� S 5 ? St10 • `• 1A 1 H o Bernard L. M inle Ma dr H -t� t� e� nH � E-� Y► Y H n ATTEST:+ t :, ar P. rger, Ci K; Clerk/Auditor CERTIFICATE I , Larry P. Burger, City Clerk of the City of Waterloo, Iowa, do hereby certify that attached hereto is a true and complete copy of Ordinance No. 3551 , as passed and adopted by the Council of the City of Waterloo, Iowa, on the 2nd day of May, 1988. Witness my hand and seal of offic this 4th da of May, 1988 . - �y71'1 E /*/ /41 ," t-1 tr �� n n LL ry . Burge City Clerk/Auditor -- t7 d '`11., E OF SS I O W A. • I do solemnly swear that the annexed copy of L e g a I :Neck HawkCounty, Iowa Public Service Co . Ordinance No. 3551 notice was published In the Wntcrl00 C0Uricr a daily newspaper printed In Waterloo, Black Hawk County, Iowa once a- -fee- -eeneeeuiivs- :AN ORDINANCE N RANTING UNTO IOWq PUBLIC SERVICE commencing on the 13 daj- f Jul y 4� 88 In the issue/of COMPANY, ITS SUCCESSORS AtIO_ ASS.IGNS, THE RIGHT, TY TO RE ECT MNDINTUTHO D July 13, 1988 OPERATE PLANTS TRANSMISSIONS AND , - TRIBUTION SYSTEMS AND TO FURNISH GAS SERVICE FOR PUBLIC of said newspaper, and that the annexed rate of WHIN THE CITY OF"Wg LOO,IOWA.(HEREIN THE CI-TER- 1 advertising Is the regular legal rate of said newspaper,and that the following is a correct bill for TV") FORA TERM OF TWEN- publishing said notice. s Printer's Bill $ ? P , . "ttvt* . Signed • Subscribed and sworn to before me this i 3 day of C.- i.Allu. c?, c- A.D., 19 . " VVV 7—; — ' aa).7v(44.{_ci, (---' l' O.,;(-4`4,--) Notary Public Received of • the sum of ' Dollars in full for publication of the above notice. j i