App. D. LINN COUNTY RURAL ELECTRIC COOPERATIVE ASSOC. FRANCHISE
ORDINANCE No. 075-13
AN ORDINANCE GRANTING LINN COUNTY RURAL COOPERATIVE ASSOCIATION, AN IOWA COOPERATIVE, A FRANCHISE FOR TWENTY FIVE (25) YEARS TO OPERATE AN ELECTRIC UTILITY WITHIN THE CITY OF CEDAR RAPIDS, IOWA.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CEDAR RAPIDS, IOWA as follows:
Section 1. Introduction .
There is hereby granted to Linn County Rural Electric Cooperative Association, hereinafter referred to as the "Cooperative", its successors and assigns, the right and. franchise to construct, reconstruct, repair, maintain and operate in the City of Cedar Rapids, Linn County, Iowa, systems for the distribution of electric power, and the right to construct, reconstruct, repair, maintain and operate the necessary poles, lines, wires, conduits and other appliances for the distribution of electric power and energy along, under and upon the streets, avenues, alleys and public ways in the City of Cedar Rapids, Linn County, Iowa; also the right to erect and maintain upon the streets, avenues, alleys and public ways, distribution lines through the said City of Cedar Rapids, Linn County, Iowa to supply individuals, corporations, communities and municipalities both inside and outside of said City with electric light and power for the period of twenty-five (25) years, after which such period the franchise shall expire. However, the City of Cedar Rapids shall retain the right to terminate this right and franchise effective at the end of the tenth (10 th ), fifteenth (15 th ), and twentieth (20 th ) year anniversary of the Anniversary Date as defined within. In order to exercise this right to terminate the right and franchise granted to the Cooperative, the City of Cedar Rapids must give written notice to the Cooperative no later than six (6) months prior to expiration of the respective Anniversary Date. The Anniversary Date shall be the date this franchise is published following signature by the Mayor.
Section 2. Indemnification .
The Cooperative shall indemnify, defend and hold City harmless from and against any and all claims, demands, losses, damages, cost and expenses (including, but not limited to, court costs, fines, penalties and reasonable attorney's fees, but excluding consequential or indirect damages), judgments, liabilities and causes of action of any nature whatsoever resulting from or relating to its negligent acts or omissions in the use or occupancy of the streets, avenues, alleys and public ways in the City, a default of this franchise, or arising in any manner out of the negligent acts or omissions of its agents, employees, or contractors in connection with same, or with respect to the violation of any laws, including without limitation, any environmental laws; provided, however, that the Cooperative shall not be obligated to defend, indemnify or save harmless the City for any costs or damages arising from the. negligence of the City, its officers, employees or contractors. The Cooperative shall indemnify and defend City for, from and against any and all mechanics' liens and other liens and encumbrances filed by any person claiming by, through or under the Cooperative and against all costs, expenses, losses and liabilities (including reasonable attorneys' fees) incurred by City in connection with any such lien or encumbrance or any action or proceeding brought thereon.
The Cooperative shall maintain commercial general liability insurance coverage, or its equivalent, throughout the term of this franchise, so as to protect and indemnify City from suits or claims arising out of Cooperative's negligent acts subject to policy terms and conditions. Such insurance shall be comprehensive in nature, including, but not limited to, contractual liability. In addition, such insurance shall contain limits not less than $1,000,000 combined single-limit person injury and property damage. Cooperative's failure to meet this insurance requirement shall not relieve Cooperative of its responsibilities under this franchise. Upon proof of financial responsibility to the reasonable satisfaction of City, Cooperative may be allowed to self-insure the coverages indicated herein resulting from the negligent acts or omissions of Cooperative, Cooperative's agents or employees. Cooperative shall provide City with certificates of insurance or a letter of self-insurance upon request.
The requirements of indemnification shall not be a waiver of any right that the City would have to assert defenses on its own behalf under state or federal law. The Cooperative's indemnification obligations under this franchise shall survive the expiration, cancellation, or termination of this franchise in accordance with applicable statutes of limitation in force within the state of Iowa.
Section 3. Meters and Service Lines .
The Cooperative, its successors and assigns, shall furnish and install all meters at its own expense, and shall provide the service wire to buildings as set forth in the Cooperative's tariff filed with the Iowa Utilities Board.
Section 4. Relocation .
The Cooperative shall, at its 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 at any time reasonably require for the purposes of facilitating the construction, reconstruction, maintenance or repair of the street or alley or any public improvement of, in or about any such street or alley or reasonably promoting the efficient operation of any such improvement. If the City orders or requests the Cooperative to relocate its existing facilities or equipment as the result of the initial request of a commercial or private developer or other nonpublic entity, the Cooperative shall receive payment for the cost of such relocation as a precondition to relocating its existing facilities or equipment. The City shall give the Cooperative reasonable advance written notice to vacate a public right-of-way. Vacating a public right-of-way shall not deprive the Cooperative of its right to operate and maintain existing facilities, until the reasonable cost of relocating the same are paid to the Cooperative, and the City shall utilize reasonable efforts to assist Cooperative in securing an easement or other continued rights of record to continue to operate and maintain its facilities upon such relocation.
Section 5. System Plans and Maps .
Mapping information provided to the City by the Cooperative on a project-specific basis shall be in the format utilized by the Cooperative and shall be for the exclusive use of the City in administering the use and occupancy of the public right-of-way within the City and shall not be provided to or relied on by any person for any other purpose. Cooperative does not warrant or guarantee the accuracy of any information provided pursuant to this Section. Cooperative maps only show equipment and facilities that are above ground. At the request of the City, mapping information will be reviewed with the City staff. All reviews will be in compliance with applicable laws and regulations. Excavation permits and traffic control for work within public right-of-way will be in conformance with the latest Cedar Rapids Municipal Code. Prior to any excavating in the rights-of-way, both parties shall follow the procedures set forth in Iowa Code Chapter 480 or an entity with a similar function utilized by the City and the Cooperative, currently the Iowa One-Call System.
Section 6. Annual Planning Meeting .
Cooperative operations staff will, at the request of the City, attend an annual meeting with the City Public Works staff, utility staff and other interested city entities to discuss utility reliability standards, including comparisons to regional and national reliability statistics, annual and long-term construction planning for the Cooperative and City, tree trimming plans and other related items. This will not replace any periodic meetings needed on specific projects and issues.
Section 7. Reliability .
The system authorized by this Ordinance shall be reliable and shall be of sufficient capacity to supply all reasonable demands of said City and its inhabitants thereof and shall be maintained in compliance with Iowa Utilities Board regulatory standards and industry standards for reliability.
Section 8. Undergrounding .
The City may request estimates for the undergrounding of replacement lines, upgrades or new lines, including lines to be adjusted for road moves, for specific projects addressed at the annual planning meeting, as referenced in Section 6. When requested, the Cooperative will provide to the City two estimates: 1) An estimate for the cost of the project with overhead construction and 2) An estimate for the cost of the project with underground construction. The City will have no more than 60 days from the estimate date to determine if it wants the line built overhead or placed underground. If the City chooses underground construction for the project, the City will be responsible for the incremental cost of undergrounding, defined as the differential between the estimate for underground construction and the estimate for overhead construction. Upon receipt of the City's payment for the incremental cost of undergrounding, the Cooperative will install the underground facilities. The Cooperative reserves the right to bill City for the amount that the incremental cost associated with installation exceeds its estimate. The City reserves the right to a refund of overpayment if the incremental costs are less than the amount billed in the estimate. If the City wishes to have a line not scheduled for replacement or upgrade placed underground, the City shall contact the Cooperative to make such a request. The City shall cover all costs related to this work. If undergrounding of distribution or service lines requires members of the Cooperative to make adjustments to member-owned electrical systems, the City bears the responsibility of communication with those members and, if it chooses, the cost of converting the member's utility entrance from overhead to underground. The Cooperative reserves the right to review all of the City's communication with its members.
Section 9. Nonexclusivity .
The franchise granted by this Ordinance shall not be exclusive.
Section 10. Continuous Service .
Service to be rendered by the Cooperative under this franchise shall be continuous unless prevented from doing so by fire, Acts of God, unavoidable accidents or casualties, or reasonable interruptions necessary to properly service the Cooperative's equipment, and in such event service shall be resumed as quickly as is reasonably possible.
Section 11. City Use of Cooperative Facilities .
The Cooperative, upon request of the City, and without cost to it, may permit its poles, conduits and other distribution facilities, so far as may be done without interfering with the free use its own wires and fixtures, to be used for the purpose of maintenance thereon any control wires and other appurtances which may be necessary for any use by the City. The City will provide no less than 30 days notice to the Cooperative before using the Cooperative poles and the Cooperative will provide no less than 30 days notice prior to changing a pole being used by the City unless for an emergency situation such as safety or the restoration of power. The City shall defend, indemnify, and hold the. Cooperative harmless from any and all causes of action for injury, litigation or damages which may arise out of or by reason of the placing or maintenance of such control wires and other appurtances by the City upon facilities of the Cooperative, provided such causes of action did not arise out of the negligence of the Cooperative. Such control wires and other appurtances shall meet all applicable codes, rules and regulations that may be in effect. Specifically, all installation of said wires and appurtances shall be conditioned upon compliance with the safety rules of the Cooperative, as well as the requirements of the National Electric Safety Code (NESC) or other safety requirements as adopted by the Iowa Utilities Board under 199 IAC Chapter 25. If the Cooperative has the need for space utilized by the City, including conduits, the City will, within a reasonable period of time, remove said control wires and appurtances or will, at its own cost, provide the Cooperative with a reasonable alternative location that similarly allows expansion of the electric distribution system serving the electric members, without disrupting Cooperative operations.
Section 12. Emergency Training, Participation and Communication .
Each year, the Cooperative will, at the request of the City, participate in one emergency training event and will participate in Linn County Emergency Operations Center activation if requested by the City, and if deemed appropriate by the Cooperative. The Cooperative will maintain a direct phone connection with Cedar Rapids Police Dispatch or other emergency contact as determined by the City for emergency communications.
Section 13. Energy Efficiency and Renewable Energy .
The Cooperative will provide the City energy efficiency materials and incentive forms for display in the building permit department and other City departments as requested by the City. The Cooperative will participate in neighborhood and community events, when possible, and upon a request from the City or neighborhood organization, to encourage City residents to utilize the Cooperative's energy efficiency programs.
Section 14. Future Agreements .
The Cooperative, upon request of the City, shall explore with the City agreements that are mutually beneficial, and economically feasible to both parties, for interconnection of alternative energy electrical facilities, use of facilities and purchase of excess alternatively produced power, in a timely manner, adhering to all Federal, State or local codes, rules and regulations in effect at the time of agreement. The Cooperative will work with the City for fair regulatory treatment of such projects. Agreements are subject to generation reliability requirements.
Section 15. Publication Expenses .
The expense of the publication of this Ordinance shall be paid by the Cooperative.
Section 16. Repeal of Conflicting Ordinances .
All Ordinances, or parts of Ordinances, insofar as they are in direct conflict herewith, are hereby repealed.
Section 17. Street Lights .
At the request of the City, Cooperative shall provide the City with a count of streetlights. If the City would at any time desire to purchase the Cooperative's street lights located within the City, the Cooperative agrees to negotiate the sale of such street lights. The terms and conditions of such a sale will include that the street lights will be purchases at a mutually agreed price and on an as is, where is basis. Upon sale, City shall assume all risk and loss related to the operation and maintenance of the purchased street lighting. Any agreement will require the City to purchase all street lights in the corporate limits of the City that are owned by the Cooperative.
Section 18. Franchise Fee .
In its monthly billing, Cooperative shall include a franchise fee of three percent (3%) on the gross receipts from the sale of electricity for customers within the limits of the City of Cedar Rapids, Linn County, Iowa. The franchise fee may increase up to a maximum of five percent (5%), as allowed by law. The franchise fee shall not be assessed to the city as a customer per Iowa Code Chapter 364.2(f). The City shall be solely responsible for the proper use of any amounts collected as franchise fees, and should only use such fees as collected for a purpose as allowed applicable law. Collection of the franchise fee shall cease at the earlier of the City's repeal of the franchise fee or the end of the Ordinance term. Notwithstanding the foregoing, the collection of any franchise fee shall be in accordance with applicable law, including but not limited to any limitations upon the question of such franchise fee.
(006-16)
Section 19. Application of Fee .
The franchise fee shall be applied to all member bills in accordance with Iowa Code Chapter 364.2(f) and 423B.5, as amended, and subject to any modifications or the repeal of same. The Cooperative shall not grant exemptions or refunds of the franchise fee beyond that granted by the Code of Iowa applicable at the time of such exemption or refund. If at any time the Iowa Utilities Board or another authority have proper jurisdiction, prohibits the collection or payment of a franchise fee, the Cooperative shall be relieved of its obligation to collect and pay to the City the franchise fee.
Unless the City and the Cooperative jointly determine otherwise, the Cooperative will commence collecting franchise fees on or before the first Cooperative billing cycle of the first calendar month following ninety (90) days of receipt of information required of the City to implement the franchise fee. This information shall include, but not be limited to a copy of the City's revenue purpose statement and written proof of legal adoption and publication of the revenue purpose state, Cooperative's list of City utility accounts exempt per Iowa law from the franchise fee.
Section 20. Administrative Charge for Franchise Fee .
The franchise fee may include an additional charge equal to 06 percent (0.06%) on the gross receipts from the sale of electricity for members within the limits of the City of Cedar Rapids, Linn County, Iowa. Said additional charge will be retained by the Cooperative to cover the administrative and related expenses incurred by Cooperative to accommodate City's franchise fee and shall only apply when a franchise fee is being collected pursuant to Section 18. The Cooperative must notify the City of its intent to add this administrative charge to the franchise fee.
Section 21. Limitations to Company Obligations on Franchise Fee .
City agrees that Cooperative's obligations related to the franchise fee are limited to those obligations set forth in Sections 18, 19 and 20. City further agrees to bear all costs (including attorney fees), and to defend, indemnify and hold Cooperative harmless from any and all liability, claims or causes of action associated with disputes related to the billing and/or collection of the franchise fee, provided that the City shall not be obligated to bear such costs or to defend, indemnify and hold Cooperative harmless if such disputes is the result of inaccurate billing by the Cooperative.
Section 22. Annexation Under Franchise Fee .
Upon receipt of a final and unappealable order or approval authorizing annexation, or changes in the limits of said City, the City Clerk shall provide written notification to an officer of the Cooperative of such annexation or change in the limits of said City, and the Cooperative shall apply the franchise fee to its members who are affected by the annexation or change in the limits of the City, commencing no later than six (6) months from the effective date of the annexation.
Section 23. Franchise Fee Billing .
The sum of such additional charges for the franchise fee and any additional charges related to Sections 18 and 20 above shall be shown separately on the utility bill to each member.
Section 24. Franchise Fee Payments .
The Cooperative shall remit collected franchise fees to the City on a quarterly basis, within thirty (30 days after last day of the last revenue month of the quarter.
Section 25. Franchise Fee in Lieu of Other Payments .
The franchise fee shall be the only fee paid by Cooperative to the City related to the use of City's right-of-way, streets, avenues, alleys and public ways in the said City. Specifically the franchise fee is in lieu of any permit charges associated with any ordinance or other requirement related to excavations in the public right-of-way.
Section 26. Rates .
The Cooperative shall supply electric energy to members within the City of Cedar Rapids at just and reasonable rates. It is recognized that under the statues of the State of Iowa, the Iowa Utilities Board of the Iowa Department of Commerce is vested with legal authority to supervise, fix or change rates and charges authorized to be charged by the Cooperative to electric energy consumers. In the event rates or charges in general, or any class or type of rate or charge shall, during the term of this franchise, cease to be regulated by any state or federal agency, the City Council reserves the right to regulate such rates within the City with the costs of such regulation to borne by the Cooperative as a part of its cost of doing business, and reflected in its rates.
Section 27. Compliance With City Ordinances .
The Cooperative shall at all times during the term of this franchise ordinance conform with, submit to, and carry out the revisions of any and all valid ordinances existing or as hereafter lawfully enacted relating the City's exercise of its police powers.
Section 28. Eminent Domain .
The Cooperative is granted the right of eminent domain for the purposes set forth herein, or to access its current or future facilities, as provided in Section 364.2 of the Code of Iowa, as amended, or pursuant to any other statutory authority granted through the City during the term of this franchise. Notwithstanding the foregoing, and limited to the exercise of eminent domain related to the construction of new distribution facilities in the public right-of-way, the Cooperative agrees to provide thirty (30) days written notice to the City prior to exercising such right.
Section 29. Closing .
This franchise ordinance sets forth and constitutes the entire agreement between the Cooperative and the City of Cedar Rapids with respect to the rights contained herein, and may not be superseded, modified or otherwise amended without the approval and acceptance of the Cooperative. Upon the effective date, this franchise ordinance shall supersede, abrogate and repeal any of the rights granted to the Cooperative pursuant to Cedar Rapids City Council Resolution No. 139-1-92, dated January 15, 1992, or any other agreement related thereto between the Cooperative's predecessor in interest and the City of Cedar Rapids. Except as set forth in Section 28, in no event shall the City of Cedar Rapids enact any ordinance or place any limitations, either operationally or through the assessment of fees, that create additional burdens upon the Cooperative, or which delay utility operations with respect to the rights contained herein.
Section 30. Separability of Provisions .
It is the intention of the council that each section, paragraph, sentence, clause, and provision of this ordinance is separable, and if any provision is held unconstitutional or invalid for any reason, such decision shall not affect the remainder of this ordinance nor any part thereof other than that affected by such decision.
This Ordinance shall be in full force and effect from and after its passage and publication as provided by law.
The changes as provided in this Ordinance shall be made a part of the replacement pages of the Municipal Code, City of Cedar Rapids, Iowa, and made a part of said Code as provided by law.
All ordinances or parts of ordinances in conflict with any provision of this Ordinance are hereby repealed.
INTRODUCED this 3 rd day of December, 2013.
PASSED AND APPROVED this 17 th day of December, 2013.
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Ron J. Corbett, MayorATTEST:
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Amy Stevenson, City Clerk
(075-13)