HomeMy WebLinkAbout2021-06-30-7031
AN ORDINANCE GRANTING TO MIDAMERICAN ENERGY COMPANY, ITS
SUCCESSORS AND ASSIGNS, THE RIGHT AND FRANCHISE TO ACQUIRE,
CONSTRUCT, ERECT, MAINTAIN AND OPERATE IN THE CITY OF WAUKEE,
IOWA AN ELECTRIC SYSTEM AND FACILITIES AND TO FURNISH AND SELL
ELECTRIC ENERGY TO THE CITY AND ITS INHABITANTS FOR A PERIOD OF 25
YEARS.
BE IT ENACTED by the City Council of the City of Waukee, Iowa:
703.01. There is hereby granted to MidAmerican Energy Company, an Iowa
corporation, and to its successors and assigns, hereinafter called “Company”, the right and franchise
to acquire, construct, erect, maintain and operate in the City of Waukee, Iowa, hereinafter called the
“City,” a system for the transmission and distribution of electric energy and 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. This franchise shall be effective
for a twenty-five (25) year period from and after the effective date of this ordinance, provided
however, the City may reevaluate the franchise ordinance every five years, commencing with the 10th
year, by providing MidAmerican Energy Company written notice at least 120 prior to 10, 15, and
20th anniversaries of the ordinance. If such a request to re-evaluate or amend the ordinance is made
by the City and the parties are unable to agree to amend the ordinance within 90 days or by a
mutually agreed upon date, then the City may elect to terminate or continue this franchise upon the
expiration of the re-evaluation period. If the City does not seek such re-evaluation by means of a
written notice to the MidAmerican Energy at least 120 days prior to the expiration of year 10, 15, or
20th anniversaries, as provided herein, this franchise will continue without change.
703.02. The rights and privileges hereby granted are subject to the restrictions and
limitations of Chapter 364 of the Code of Iowa 2007.
703.03. The Company shall 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 in and through the City, but all said conduits and poles shall be placed
as not to interfere with the construction of any water pipes, drains or sewers, or the flow of water
therefrom, or streets, sidewalks or other public infrastructure which have been or may hereafter be
located by authority of the City, and further providing the same shall be placed in accordance with
this franchise and any regulation the City may from time to time adopt or amend regarding the
placement of facilities or structures of utilities, and other right-of-way users facilities or structures, in
the right-of-way.
703.04. This franchise shall not be exclusive and shall not restrict in any manner the
right of the City Council or any other governing body of the city, in the exercise of any regulatory
power which it may now have, or hereafter be authorized or permitted, by the laws of the State of
Iowa.
703.05. The Company is authorized and empowered consistent with this franchise to
prune or remove at Company expense any tree extending into any street, alley, right-of-way or public
grounds to maintain electric reliability, safety, to restore utility service and to prevent limbs,
branches or trunks from interfering with the wires and facilities of the Company. The pruning shall
be completed in accordance with nationally accepted safety and utility industry standards, ANSI
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A300-2001, American National Standard for Tree Care Operations, and ANSI Z133-2006 Pruning,
Repairing, Maintaining and Removing Trees, and Cutting Brush Safety Requirements, or subsequent
revisions to these standards, and, where not inconsistent to the enumerated ANSI standards, City
ordinances regarding the trimming of trees and the protection of its facilities upon public grounds.
The removal of trees or pruning in public grounds shall require prior approval of the City Public
Works Department. The Company shall promptly remove wood, or other waste, trimmed from trees
or other vegetation from the public rights of way.
703.06. Annually, and more frequently if necessary at the request of either party,
the City and the Company shall meet to review and plan for the next 12 months of infrastructure
construction, replacement, enhancements or maintenance within the City. Where possible,
following the procedures and standards applicable to the growth and development of the City, the
parties will develop plans to facilitate the placing of electric facilities in conjunction with City
projects in the public right of ways.
703.07. The Company shall, at its cost and expense, locate and relocate its installations
in, on, over or under any public right of way, public easement, street or alley in the City as the
City may at any time reasonably require for the purposes of facilitating the expansion, construction,
reconstruction, maintenance or repair of a street, road or alley, or any other public improvement. The
Company shall not be required to relocate its facilities at Company expense if said relocation is for
the sole benefit of a non-government entity if the City has not required the public improvement to be
performed or installed by said non-governmental entity.
The City may prohibit Company’s expansion of use of the right-of-way if there is insufficient
space to accommodate the expanded use and the City has provided a reasonable alternative location
to the Company.
May 18, 2009 – Ordinance 2644 (correct scrivener’s error)
703.08. In making excavations in any streets, avenues, alleys and public places for
the excavation of 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 the
original condition as nearly as practicable and provided such other requirements imposed by the
City’s ordinances or regulations existing now or in the future.
703.09. 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. At the request of the Company, any information requested with respect to the location or
type of equipment which the Company maintains or plans to install in the right-of-way, which
qualifies as trade-secret information under I.C. § 550.1 et seq., shall be treated as trade-secret
information in accordance with I.C. § 22.1 et seq., pertaining to examination of public records, or
which qualifies to be kept confidential under any provision of I.C. 22.1 et seq. The Company and
City recognize that some or all of the information provided may, under current Iowa law,
constitute public records, but that nonetheless, some information provided may be considered to
be confidential under state or federal law or both. Therefore, the City shall not release any
information with respect to the facilities which the Company owns or controls in the right of way
which may constitute a trade secret or which may otherwise be protected from public disclosure
by state or federal law. The City shall provide the Company written notice of a request to release
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information to allow the Company to determine if the information sought is confidential. The
Company shall respond to the City within 10 business days of receiving the City’s written notice
request. If requested by the Company, the City shall not release any such data except by court
order, provided, however, the City reserves the right to disagree with the Company determination
that the information is confidential, in which case the Company shall be given notice in order that
the Company may seek injunctive relief. In the event the City agrees the information is
confidential, or that a court determination is required to determine if the information is
confidential, the City shall defend or bring any necessary court actions, provided, however, that
in the event the City refuses to release records, or the City itself brings an action to determine if
records are confidential, the City may tender the defense or prosecution of such legal actions to
the Company and the Company shall accept such tender.
703.10. This ordinance is intended to be and shall be construed as consistent with the
reservation of local authority contained in the Twenty Fifth Amendment to the Iowa Constitution
granting municipalities home rule powers. To such end any limitation on the power of the city is to
be strictly construed and the City reserves to itself the right to exercise all power and authority to
regulate and control its local affairs, and all ordinances and regulations of the city shall be
enforceable against the Company.
703.11. The Company shall indemnify and save harmless the City from any and all
claims, suits, losses, damages, costs or expenses, on account of injury or damage to any person or
property, caused or occasioned in whole or in part, 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 arising from the negligence of the City, its officers,
employees or agents.
703.12. The Company shall construct, operate and maintain its facilities in accordance
with the applicable regulations of the Iowa Utilities Board or its successors, and any and all other
applicable Federal, State and Local laws or regulations.
703.13. During the term of this franchise, the Company shall furnish electric energy in
the quantity and quality consistent with applicable Iowa laws and regulations.
703.14. In consideration of the right to construct and maintain such electric facilities
and equipment along, upon, across and under the streets, highways, avenues, alleys, bridges and
public places of the city the City reserves the right to impose upon the Company and, by its
acceptance of this franchise, it agrees that there shall be collected from Company's customers within
the corporate limits of the city and remitted by the Company to the City, a franchise fee in an amount
equal to a percentage of the gross receipts derived by the Company from the transmission or
distribution of electric energy to customers within the corporate limits of the city (excluding,
however, the sale of electric energy to the city), or assessed or charged in any other manner the City
deems appropriate and is consistent with applicable laws as may be changed from time to time, as
determined by resolution upon a majority vote of the Waukee City Council at a duly scheduled City
Council meeting after fourteen (14) days advance public notice. The City shall give the Company 90
days written notice of the effective date of any franchise fee imposed by the City on the customers of
the Company located with in the corporate limits of the City.
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In the event a franchise fee is imposed by the City, the Company shall remit the sum collected
from customers to the city treasurer quarterly on May 1, August 1, November 1 and February 1 of
each year for the three-month periods ending respectively March 31, June 30, September 30 and
December 31.
703.15. The City reserves the right, upon written notice to and with consent of the
Company, to place upon Company poles without charge, within the City limits, banners, holiday
lighting, wire and pole fixtures for municipal purposes, excluding the sale, transmission or delivery
of electrical energy. Prior to the installation of any City-owned equipment on the Company-owned
distribution system, the City will enter into Company’s standard pole attachment agreement,
excepting only that there will be no annual fee. Upon reasonable request of the City the Company
shall make modifications required to accommodate the City equipment. In the event that a clearance,
guying, grounding or other system design or construction problem is identified by the Company, or
the Iowa Utilities Board or its inspectors, and said problem is a result of City facilities, the City shall
correct the problem within the time limits of the Iowa Utilities Board or the Company. If at the sole
discretion of the Company, it is determined that said attachments may create a hazardous situation or
wind or other conditions may place undue stress on specific Company facilities, the City shall not be
authorized to attach to those facilities. If attachments are in place, upon notification by the Company
of damage or potential damage, the City shall promptly remove said attachments.
If the City fails to correct the problem(s) the Company is authorized to remove the City
facilities with no liability to City for the loss of system integrity.
703.16. The Company shall have the power to condemn private property for the
purpose of providing electric utilities to the extent necessary to serve a public use and in a reasonable
relationship to an overall plan of transmitting electricity in the public interest upon approval of the
City Council. The Company must establish the necessity for each taking of private property, and
when so established, the City Council may approve the condemnation of the private property by
resolution. Any such exercise of the eminent domain powers shall be conducted in accordance with
the Waukee Municipal Code and Iowa Law. In the exercise of eminent domain powers pursuant to
this provision, the Company shall be responsible for any amounts awarded. In the event the City
incurs expenses related to the Company’s exercise of the eminent domain power granted in this
ordinance, in addition to the normal costs of internal processing of its request to receive and its
exercise of eminent domain powers, the Company will reimburse the City for its reasonable extra
expenses.
703.17. Before finalizing plans for any construction, expansion, modification or
relocation of its facilities, the Company shall submit copies of the plan to the City. Said plans shall
comply with federal state and local laws and ordinances and applicable design standards. The
Company shall not use any method of construction in connection with any work undertaken by
company which may result in the cutting of any pavement unless the method is first approved in
writing by the City Engineer. Plans submitted upon and after the effective date of this franchise shall
identify Company Facilities proposed to be located in the right of way and those that would be
located on property owned in fee by the Company or on private easements.
In the event of an emergency situation, the Company is authorized to proceed with excavation
and repair prior to submitting plans to the City and receiving city approval, however, any such
excavation or repair must be completed in accordance with all applicable standards and policies of
the City applicable to such work and all property, pavement and appurtenances effected by said
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work restored as near as practicable to it original condition. The Company shall notify the City as
soon as possible either during or after the repair has been completed.
Nothing herein shall be construed to effect or otherwise modify the Company’s relocation
responsibilities as provided herein.
703.18. This Franchise does not authorize Company to utilize its facilities in the
provision of communication, data or media within the Rights of Way. In the event that Company
desires to utilize its facilities for such a purpose or purposes, Company agrees that it must obtain
authorization from the City under this franchise prior to such use.
703.19. This franchise shall apply to and bind the City and the Company, their
successors and assigns; provided that any assignment by the Company or successor to the company,
shall be subject to the approval of the City Council by resolution, which shall not be unreasonably
withheld. The City shall have 60 days from the effective date of the assignment, or designation of
successor in interest, to adopt the resolution. If the City fails to adopt a resolution affirming or
rejecting the assignment during the 60 day period the assignment or successor in interest shall be
deemed approved.
703.20. This franchise is limited to electrical service. No other services shall be
provided to the public by the Company pursuant to this franchise.
703.21. 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.
703.22. 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 Company shall, within thirty (30) days after the City Council
approval of this ordinance, file in the office of the clerk of the City, its acceptance in writing 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 publication. In the event that MidAmerican Energy Company does not file its written acceptance
of this ordinance within 30 days after its approval by the City Council this ordinance shall be void
and of no effect.
703.23. 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.
August 18, 2008 – Ordinance 2634