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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 2 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 3 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. 4 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 5 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