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Black Hills / Iowa Gas Utility Company, LLC Non-Exclusive Franchise Agreement Copyrighted May 7, 2018 City of Dubuque Items to be set for Public Hearing # 6. ITEM TITLE: Black Hills / lowa Gas Utility Company, LLC Non-Exclusive Franchise Agreement SUMMARY: Senior Counsel recommending adoption of a resolution setting a public hearing on a proposed franchise for May 21, 2018 and dispenses with an election on the adoption of the ordinance as provided by lowa law. RESOLUTION Setting a public hearing on an ordinance granting to Black Hills/lowa Gas Utility Company, L.L.C. D/B/A Black Hills Energy, a Delaware Corporation, its Successors and Assigns, the Right and Non-Exclusive Franchise to maintain and operate its existing gas distribution system in the City of Dubuque, lowa, for a period of 25 years, and authorizing the City to collect franchise fees SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt Resolution(s), Set Public Hearing for May 21, 2018 ATTACHMENTS: Description Type Staff Memo Staff Memo Resolution Setting Public Hearing Resolutions Proposed Ordinance Repealing Ordinance No. 43-93 Supporting Documentation Black Hills Pledge Letter Supporting Documentation Ordinance No. 43-93 Ordinance THE CITY OF DUB E MEMORANDUM Masterpiece on the Mississippi BARRY LINDAHL SENIOR COUNSEL To: Mayor Roy D. Buol and Members of the City Council DaTe: May 3, 2018 Re: Resolution Setting a Public Hearing on an Ordinance Granting to Black Hills/lowa Gas Utility Company, L.L.C. d/b/a Black Hills Energy a Non- Exclusive Franchise for Its Gas Distribution System In 1993, the City Council adopted an ordinance granting to Peoples Natural Gas Company, its successors and assigns, a non-exclusive authority for a period of 25 years to maintain and operate its existing gas distribution system and construct extensions thereto within the limits of city of Dubuque. That franchise expires September 8, 2018. The City Manager has negotiated a proposed new franchise agreement with Black Hills/lowa Gas Utility Company, L.L.C. d/b/a Black Hills Energy, a successor to Peoples Natural Gas Company. lowa law requires the City Council to hold a public hearing on the question on the adoption of the ordinance granting a franchise. A copy of the ordinance is attached. Additionally, attached is a March 9, 2018 Letter of Agreement from Tracy Peterson, Operating Vice President of lowa Gas, outlining Black Hills Energy's pledge to provide energy efficiency materials and community involvement reports to the City of Dubuque. The attached resolution sets a public hearing on the proposed franchise for May 21 , 2018. The resolution also dispenses with an election on the adoption of the ordinance as provided by lowa law. I recommend that the City Council adopt the resolution setting a public hearing. BAL:tIs Attachment cc: Michael C. Van Milligen, City Manager F:\Users\tsteckle\Lindahl\Franchise Fee Ordinance Notebook\Black Hills\MayorCouncil_ResolutionSettingPublicHearing_BlackHills_050318.doc OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563)583-4113/FAx (563)583-1040/EMAi� balesq@cityofdubuque.org RESOLUTION NO. 135-18 SETTING A PUBLIC HEARING ON AN ORDINANCE GRANTING TO BLACK HILLS/IOWA GAS UTILITY COMPANY, L.L.C. d/b/a BLACK HILLS ENERGY, A DELAWARE CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT AND NON- EXCLUSIVE FRANCHISE TO MAINTAIN AND OPERATE ITS EXISTING GAS DISTRIBUTION SYSTEM IN THE CITY OF DUBUQUE, IOWA, FOR A PERIOD OF 25 YEARS, AND AUTHORIZING THE CITY TO COLLECT FRANCHISE FEES Whereas, Ordinance No. 43-93 granted to Peoples Natural Gas Company, Division of Utilicorp United Inc., a Corporation, its successors and assigns, a nonexclusive authority for a period of twenty-five years to maintain and operate its existing gas distribution system and construct extensions thereto within the limits of the City of Dubuque, Iowa (the Current Franchise Agreement), which Current Franchise Agreement expires September 8, 2018; and Whereas, Black Hills/Iowa Gas Utility Company, L.L.C. d/b/a Black Hills Energy, a Delaware Corporation, is a successor to Peoples Natural Gas Company; and Whereas, the City Council of the City of Dubuque and Black Hills/Iowa Gas Utility Company, L.L.C. d/b/a Black Hills Energy desire to terminate the Current Franchise Agreement and enter into a new franchise agreement. A copy of the Ordinance granting the franchise, attached hereto, is on file in the Office of the City Clerk, City Hall, 50 W. 13th Street, Dubuque, Iowa; and Whereas, Iowa law requires that the City Council hold a public hearing on the question of the adoption of the Ordinance granting the franchise. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF DUBUQUE, IOWA AS FOLLOWS: Section 1. A public hearing on the question of the adoption of the Ordinance granting the franchise to Black Hills/Iowa Gas Utility Company, L.L.C. d/b/a Black Hills Energy is hereby set for the 21st day of May 2018 in the City Council Chambers, Historic Federal Building, 350 West 6th Street, Dubuque, Iowa, beginning at 6:30 p.m. Section 2. The City Council hereby dispenses with an election on the adoption of the Ordinance as provided by Iowa Code sec. 364.2(4)(b). Section 3. The City Clerk shall publish notice of the public hearing as required by law. 050118baI Passed, approved and adopted the 7th day of May 2018. Attest: Ke'in S. Firnstahl, City Clerk oy D. Buol, Mayor F:\Users\tsteckle\Lindahl\Franchise Fee Ordinance Notebook\Black Hills\ResolutionSettingPublicHearing_BlackHillsFranchise_050118.doc 2 ORDINANCE NO. -18 REPEALING ORDINANCE NO. 43-93 AND GRANTING TO BLACK HILLS/IOWA GAS UTILITY COMPANY, L.L.C. d/b/a BLACK HILLS ENERGY, A DELAWARE CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT AND NON- EXCLUSIVE FRANCHISE TO MAINTAIN AND OPERATE ITS EXISTING GAS DISTRIBUTION SYSTEM IN THE CITY OF DUBUQUE, IOWA, FOR A PERIOD OF 25 YEARS, AND AUTHORIZING THE CITY TO COLLECT FRANCHISE FEES BE IT ENACTED by the City Council of the City of Dubuque, lowa: Except as explicitly provided in Section 22 hereof regarding the continuation of the present franchise fee, Ordinance No. 43-93, (City Code Sections 11-4-1 through 11-4-25 both inclusive), shall upon the effective date of this franchise be repealed and replaced by this Ordinance. Upon the effective date of this Ordinance, all prior franchises granted to the company to furnish gas to the city and its inhabitants are hereby repealed and all other ordinances or parts of ordinances in conflict herewith are also hereby repealed. Section 1. Definitions. Whenever the following words or terms are used in this chapter, they shall be intended and held to have the meanings ascribed to them in this section: CITY: The City of Dubuque, lowa. COMPANY: Black Hills/lowa Gas Utility Company, L.L.C. dba Black Hills Energy, a Delaware Corporation, its successors and assigns. FRANCHISE: The grant of authority contained in this ordinance as accepted by the company. GRANTEE: Black Hills/lowa Gas Utility Company, L.L.C. dba Black Hills Energy, a Delaware Corporation, its successors and assigns. IOWA UTILITIES BOARD: The utilities board or utilities division established by lowa Code chapter 474 (or its successor). MIXED GAS: Natural gas mixed with other combustible gases by company to augment the company's gas supply. STREET: Streets, alleys, bridges, avenues, highways and other similar public places used for transportation purposes within the city. Section 2. Grant of Franchise. (1) There is hereby granted to Black Hills/lowa Gas Utility Company, L.L.C. dba Black Hills Energy, a Delaware Corporation (the company), its successors and assigns, for a 041318ba1 period of twenty-five (25) years a nonexclusive authority to maintain and operate its existing gas distribution system and construct extensions thereto within the limits of the city including any areas added to the city by annexation or otherwise, together with all necessary facilities and equipment (mains, piping and appurtenances) in, upon, over, across, and along the streets of the city for the transmission, distribution and sale of natural gas or mixed gas therein. (2) The company is granted the right to exercise powers of eminent domain. (3) The city council reserves to itself the right to extend this franchise to specific areas or corridors within parks at the request of the company. (4) The city further reserves to itself the right to produce, supply, transmit, sell, or transport pipeline quality biogas produced from city, affiliate 28E organizations, or city's subcontractors. City may distribute pipeline quality biogas to city or affiliate 28E organization facilities, but city shall not distribute pipeline quality biogas to third-party customer facilities. City shall be allowed to produce, supply, transmit, sell, transport, or distribute non-pipeline quality biogas, commonly referred to "dirty" gas, to city or affiliate 28E organization facilities or to third-party customer facilities. The company shall transport gas purchased or produced by the city over the company's system in accordance with applicable rules, laws and the company's natural gas tariff on file with the lowa Utilities Board. Company shall not be required to extend or expand its system if such extension or expansion does not comply with company's feasibility model. Section 3. Street Usage. (1) The city reserves to itself the power to impose reasonable regulations on the company's use of streets. The company shall not locate any new or reconstructed gas service lines or other improvements of any kind within the city in the public rights of way without the approval of the city. The company agrees to consult with the city as to the location of any new high pressure gas pipelines carrying a pressure of seventy (70) pounds or more that will be outside the city limits which will serve the city, and use its best efforts to place such lines so they will be compatible with any impacted zoning, economic development, growth and other plans of the city. (2) In the use of right-of-way under this franchise, the company shall be subject to all rules, regulations, policies, resolutions and ordinances now or hereafter adopted or promulgated by the city in the reasonable exercise of its police power. In addition, the company shall be subject to all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the city relating to permits, sidewalk and pavement cuts, utility location, construction coordination, screening, and other requirements on the use of the right-of-way; provided, however, that nothing contained herein shall constitute a waiver of or be construed as waiving the right of the company to oppose, challenge, or seek judicial review of, in such manner as is now or may hereafter be provided by law, any such rules, regulation, policy, resolution, and ordinance proposed, adopted, or promulgated by the city. Further, the company shall comply with 2 the following: (3) All facilities placed above ground in street right-of-way after the date hereof shall be located behind the sidewalk where feasible and screened from public view in a manner that will not interfere with ADA requirements or cause visibility issues as determined by the City Engineer. Upon request of the company, the original screening materials may be provided by the city or the city's contractor at the company's expense in conjunction with and as part of the city program for right-of-way maintenance. At the request of the company, the city or adjacent property owner will thereafter maintain such original screening materials at the city's own expense and/or direction provided that the city made the selection of or subsequently approves the materials so maintained. Notwithstanding the above, the company shall use its best efforts to provide that all facilities constructed, replaced, or relocated in the right-of-way after the date hereof shall be placed underground unless, because of the nature of the facility or the standard construction or operating practices of the company, the company requests such Facilities be placed above ground. Upon such request, the city engineer or right-of-way coordinator shall review and approve the plans for the above ground placement of Facilities in accordance with reasonable procedures established by the city, and subject to such reasonable conditions as the city may establish for public safety, appearance, or coordination with Public Improvements. Further, where reasonable, practical, and appropriate and where adequate Right-of-Way exists, the company shall screen or shall place above-ground Facilities underground in conjunction with city capital improvement projects and/or at specific locations requested by the city provided that such placement is practical, efficient, and economically feasible. (4) The city encourages the conservation of right-of-way by the sharing of space by all utilities. Notwithstanding provision of this franchise prohibiting third party use, to the extent required by federal or state law, the company will permit any other franchised entity by appropriate contract or agreement negotiated by the parties to use any and all facilities constructed or erected by the company. Section 4. Excavations and Other Works; Vacated Property. (1) In making excavations in any streets, avenues, alleys and public places, the company shall not unreasonably obstruct the use of the streets, avenues, alleys or public places. The company in making any such excavations shall, if required by ordinance, obtain a city permit therefor and shall not unnecessarily obstruct the use of streets, avenues, alleys, or public places and shall provide the city manager or city manager's designee or such other person as the city may designate with twenty four (24) hours' notice prior to the actual commencement of the work, and shall comply with all provisions and requirements of the city in its regulation of the use of city right of way in performing such work. In emergencies which require immediate excavation, the company may proceed with the work without first applying for or obtaining a permit, provided, however, that the company shall apply for and obtain an excavation permit as soon as possible after commencing such emergency work. The company shall comply with all provisions and requirements of the city in its regulation of the use of city right of way in performing 3 any excavations. The company shall comply with all city ordinances regarding paving cuts, placement of facilities and restoration of pavement and other public infrastructure. The company shall replace the surface, restoring the condition as existed prior to the company's excavation, but shall not be required to improve or modify the public right of way unless said improvement is necessary to meet a SUDAS (statewide urban design and specifications) standard, a requirement of the Americans with disabilities act, or any other standard mandated by state or federal law, provided however, if any improvement is requested or required for aesthetic, cosmetic or similar purposes not mandated by state or federal law the city shall reimburse the company the incremental cost of such improvements. The company shall complete all repairs in a timely and prompt manner. Company agrees any replacement of road surface shall conform to current city ordinances regarding its depth and composition. (2) The city when vacating 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 and their replacements on, below, above, or beneath the vacated property. Prior to the city abandoning or vacating any street, avenue, alley, right of way or other public ground where the company has facilities, the city shall grant the company a utility easement for said facilities. This section shall not apply to the realignment, reconstruction, or vacation of streets or alleys in a designated urban renewal area; provided, however, the city shall identify, reserve and make available alternate locations for facilities to serve the designated urban renewal area consistent with the technical needs of the company. Section 5. Relocation of Pipes, Conduit and Services; Public Improvements. (1) Whenever the city shall pave or repave any street or shall change the grade line of any street or public place or shall construct or reconstruct any conduit, water main service or water connection, sewer or other municipal public works or utility, it shall be the duty of the company, when so ordered by the city, to change its mains, services and other property in the streets or other public places at its own expense so as to conform to the established grade or line of such street or public place and so as not to interfere with the conduits, sewers, municipal public works or utilities, and other mains so constructed or reconstructed. However, the company shall not be required to relocate pipes, mains and appurtenances when the street, alley or public grounds, in which they are located, is vacated for the convenience of abutting property owners and not as an incident to a public improvement, unless the reasonable cost of such relocation and the loss and expense resulting therefrom is first paid to the company by the abutting property owners. In the case of public improvements, including, but not limited to, urban renewal projects, the city may require the company to relocate pipes, mains, services and appurtenances in the streets at company's expense. (2) The city may at its discretion assign personnel for inspection of excavation and related work being performed by the company. Should the company fail or refuse to do and perform the things provided in this chapter, the city may, after reasonable notice, 4 perform the work and charge the reasonable and necessary expense thereof to the company and the company shall promptly pay said charges. (3) In the event the company is required to move, remove or modify the placement of any of its facilities located within the city because of any public improvement or public purposes of the city, the company shall do so at its own expenses as directed by the city. In planning for the extension or modification of streets and roads, the city shall, to the extent practicable in the discretion of its public works director, design such changes to limit the need for the relocation of company facilities. (4) The city may require the company for the purposes of facilitating the construction, reconstruction, maintenance or repair of the street, avenue, right of way or alley, public places or grounds in accord with the ordinances of the city at the company's cost and expense in accordance with lowa law, including company's tariff on file with and made effective by the lowa Utilities Board as may subsequently be amended, to construct, replace, repair, locate and relocate its existing facilities or equipment in, on, over or under any public street, avenue, right of way, alley, public places or grounds in the city in such a manner as the city may reasonably require, except the company shall not be required to construct, replace, repair, locate and relocate existing facilities where company facilities are located in private easements (whether titled in the company or other entities) unless said private easement is upon land owned by the city. (5) If the city orders or requests the company to relocate its existing facilities or equipment for any reason other than as specified above, or as the result of the initial request of a commercial or other nonpublic development, the company shall receive payment for the cost of such relocation as a precondition to relocating its existing facilities or equipment. (6) 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 two (2) years. (7) The city shall consider reasonable alternatives in designing its public works projects so as not arbitrarily to cause the company unreasonable additional expense in exercising its authority under this section. The city shall also provide a reasonable alternative location for the company's facilities as part of its relocation request. Section 6. Accessions to Franchise. The company shall maintain the availability of service throughout the entire city including newly annexed areas. The company shall furnish gas in sufficient quantities to supply the reasonable demands of the city and the inhabitants thereof and including industrial users in accordance with the regulations and conditions of service as approved by the lowa utilities board. Section 7. Condition of Service. The company agrees to provide and maintain its entire plant and system in such condition that it will furnish safe, adequate, efficient and continuous service. 5 Section 8. Regulatory Review. (1) To the extent the provisions of this section are consistent with state and federal law and regulation, the rights described in this section are reserved to the city and may be exercised by it in its discretion in accord with the duty of the city to protect the health and welfare of its citizens. (2) Company shall, at all times, maintain an adequate pressure and adequate supply of clean, standard gas of the British thermal unit heating value of not less than that prescribed in its rules and regulations relating thereto in effect and on file from time to time with the lowa Utilities Board or other competent authority having jurisdiction in the premises. Should the British thermal units fall below the limitation set forth in its appropriate rules and regulations, the rate then in effect shall be automatically and correspondingly lowered and reduced during any period or periods of time in which such lower British thermal unit value shall be furnished. The city shall have the privilege of requesting company to furnish satisfactory proof of British thermal unit content of the gas. (3) Gas furnished to consumers under this franchise shall be pipeline quality natural gas except that it shall contain some element or compound with an easily detected odor in an amount sufficient to be noticeable when the gas is released, but not sufficient to be harmful to human or animal life or to interfere with combustion. (4) All gas service shall be supplied through a meter which shall accurately measure the amount of gas supplied to a consumer. The consumer shall supply a safe and proper place for the installation of each such meter. Standards for meters and meter practices shall be in accordance with regulations, rules or directives adopted by the lowa Utilities Board. Section 9. Reserved Regulatory Rights. In the event the state of lowa or the United States ceases to regulate any aspect of the delivery of gas service now regulated by either or both, the city reserves the right upon such cessation to regulate such matters to the extent such matters are local affairs impacting the health, safety or welfare of residents of the city. Section 10. Technological Changes; Energy Efficiency. (1) Should, within the period of this franchise, developments within the field of power or heating substances offer to the company the opportunity to more effectively, efficiently and economically serve its customers through use of a substance or material other than natural gas, then the company may petition the city council which, with such requirements or limitations as it deems necessary to protect public health, safety and welfare, allow the gas of such substances under the terms and conditions of this franchise. (2) The company shall be allowed to mix other combustible gases with natural gas for distribution within the city as such mixture may be advantageous to the operation of 6 the company. Such use of mixed gas, however, shall not relieve the company of its obligations under this franchise. (3) The City and affiliate 28E organizations, intend to develop and/or partner on development of alternative energy implementation strategies (BioCNG at the Water & Resource Recovery Center [W&RRC] and Dubuque Metropolitan Area Solid Waste Agency [DMASWA] are examples). Black Hills Energy agrees to cooperate in the development of these projects to make them as effective and efficient as reasonably possible. Section 11. Extension of Service. (1) The company shall be required to extend its gas distribution system in accordance with rules and regulations relating to customer connections and main and service line extensions currently in effect and on file from time to time with the lowa utilities board or other competent authority having jurisdiction. Whenever the distribution system is so extended, those mains and service lines that are beneath streets and roads constructed by the city or a private developer within the city limits, and the pavement constructed with hot mix asphalt, the company shall have all the mains and service lines extended out of the pavement area before the final lift of asphalt is installed. Ifthe pavement is constructed with concrete, the service lines may be extended after the pavement is completed. All pavement repairs shall be full depth and replaced in full panel sections according to the city excavation policy and approved by the city engineer. (2) The city may, in the extension or modification of streets and roads, make provision for the placement of company service lines and facilities on city owned right of way without charge to company. In the event such an area is provided, the company must utilize the area provided for placement of its service lines and facilities as directed by the city or other reasonable location provided by the company. Nothing in this franchise shall be construed as a guarantee that in either existing right of way or in future acquired right of way the city will provide sufficient space for any particular need bf the company nor shall the city be required to obtain additional right of way solely for the use of the company. Section 12. Rates. (1) The company shall supply gas to consumers within the city at reasonable rates. It is recognized that under the statutes of the state of lowa, the lowa Utilities Board of the lowa department of commerce is vested with legal authority to supervise, fix or change rates and charges authorized to be charged by the company to gas consumers. It is also recognized by both the company and the city that matters involving rate changes and charges are local in their application and effect and that the city, through its city council, shall be within its privileges and municipal responsibilities in making inquiries, expressing interest or adopting position on matters of rate changes or charges by the company. (2) 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 7 agency, the city council reserves the right to regulate such rates within the city. Section 13. Reports. The company shall file with the city council a true copy of the annual report of the company pertaining to the operation or conduct of business of the company under this franchise. The report may be the same as the company shall have prepared for such year in the ordinary course of the conduct of the business of the company and filed with the lowa Utilities Board. Section 14. Maps of Distribution System. (1) The company shall, promptly after the award of this franchise, furnish the city engineer one electronic copy, in format and datum compatible with city's GIS program, policies and procedures, including confidentiality, detailed map or maps of its distribution system both within the city limits and the area immediately surrounding the city. Such maps shall include, but not be limited to, standard facilities showing the location of above- ground and underground natural gas facilities, to be used for design and planning only. The company shall thereafter update the map or maps every year showing all subsequent additions or deletions to the distribution system, with GIS compatible maps to the city. However, prior to any excavation by the city or its agents, a city representative must contact the company regarding current information on the location of gas mains or gas laterals in the area concerned. The obligation to contact the company under this section shall be satisfied if contact is made with a corporation organized pursuant to lowa Code chapter 480 (1993) or an entity with a similar function utilized by both the city and the company. (2) The company and city recognize the information may in whole or part be considered a confidential record under state or federal law or both. Therefore, the city shall not release any information without prior consent of the company and shall return the information to company upon request. The city recognizes that company claims the information may constitute a trade secret or is otherwise protected from public disclosure by state or federal law on other grounds and agrees to protect the information to the extent allowed by state or federal law. Furthermore, the city agrees that no documents, maps or information provided to the city by the company shall be made available to the public or other entities if such documents or information are exempt from disclosure under the provisions of the freedom of information act, the federal energy regulatory commission critical energy infrastructure requirements pursuant to 18 CFR 388.112 and 388.113, or chapter 22 of the code of lowa, as such statutes and regulations may be amended from time to time. In the event a request is made to the city for any such documents or information and the city attorney determines in his or her sole discretion that such documents or information is not exempt from disclosure or any action at law, in equity or administrative is brought against the city regarding disclosure of any document which the company has designated as a trade secret or as otherwise protected from disclosure the city shall promptly notify the company. The company may take such action as it deems necessary to prevent such disclosure, and in the event the company fails to take any such action within ten (10) business days after receipt of such notice, the city may disclose the documents or information without any liability of any kind to the company. 8 Section 15. Indemnification. The company shall indemnify and hold the city harmless at all times during the term of this franchise from and against all claims for injury or damage to persons or property caused by the construction, erection, operation or maintenance of its properties, or the negligence of company contractors or company employees; provided, however, that the company need not save the city harmless from claims, demands, losses and expenses arising out of negligence of city, its employees or agents. Furthermore, the city agrees to indemnify and hold the company harmless at all times during the term of this franchise from any and all claims related to the use of company maps for locating purposes instead of complying with lowa Code Chapter 480 (1993) or improper disclosure of company maps as described in Section 14 above. In case of any suit or action at law being commenced against the city, upon any claim for damage arising out of any loss, injury or damage, claimed to have been caused by any installation, improvement obstruction or excavation in any street, alley, sidewalk or public place in the City of Dubuque, and which installation, improvement, obstruction or excavation was made or left, in, under or upon such street, sidewalk, alley or public place by said company, its agents, contractors or employees, upon being notified by said city of such action or proceeding, said company shall appear and make proper defense thereto; and if any judgment or decree shall in any such case be rendered against the city therein, said company hereby agrees to assume, pay and satisfy such judgment or decree, with the costs thereof. Section 16. Nonassignment. (1) No sale, assignment or lease of this franchise shall be effective until it is approved by the city council and until the company has filed in the office of the city clerk written notice of the proposed sale, transfer, disposition or assignment, such notice to clearly summarize the proposed procedure and the terms and conditions thereof. Such approval by the city shall not be unreasonably withheld. The proposed vendor, assignee or lessee shall similarly file an instrument, duly executed, reciting such proposal, accepting the terms of this franchise and agreeing to perform all the conditions thereof. (2) This provision shall not apply to sales, assignments, or transfers made pursuant to a corporate reorganization, divestiture or consolidation orto a sale of all or substantially all of the gas distribution properties of the company. Section 17. Material Breach; Termination. Either city or company ("party") 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, 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. A party shall not be considered to be in breach of this franchise if it has operated in compliance with state or federal law. A party shall not be considered to have breached this franchise if the alleged breach is the result of the actions of a third party or the other 9 party. Section 18. Severability. If any section or provision of this chapter is held invalid by a court of competent jurisdiction, such holding shall not affect the validity of any other provisions of this chapter which can be given effect without the invalid portion or portions and to this end each section and provision of this chapter is severable. Section 19. Revival. The parties recognize that overthe duration ofthis franchise both technological and regulatory changes will take place which will impact the enforceability of this chapter or parts of it. In recognition of such factors, the parties agree that in the event portions of this chapter which are now, or in the future, are found or declared inapplicable or unenforceable, become through a subsequent change in law or technology again to be applicable or enforceable, such provisions shall be revived and again form a portion of this chapter. Section 20. Reservation of Home Rule Powers. This chapter is intended to be and shall be construed as consistent with the reservation of local authority contained in the twenty fifth amendment to the lowa 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 unless, and only to the extent, they are irreconcilable with any rights granted the company under this franchise. Section 21. Acquisition at Expiration. If at the expiration of this franchise the company wishes no longer to operate the gas service system within the city or to sell, assign or lease the system to a third party, then the company shall upon the city's request, given not earlier than one hundred eighty (180) days before expiration or more than ninety (90) days after, sell the gas distribution system to the city at a price determined by a mutually agreeable appraiser, or if the parties cannot, within sixty (60) days of notice, agree upon an appraiser, then they shall each appoint an appraiser and the appraisers shall appoint a third, the price shall then be the price the appraisers agree upon, or if they do not agree within sixty (60) days of being appointed, the price shall be the average of the two (2) appraisals which are closest in dollar amount. Section 22. Franchise Fee. (1) The franchise fee presently imposed by the city upon the company under Ordinance 59-03 as amended by Ordinance Nos. 76-03, 08-10, 07-14, 02-15, and 15-15, shall continue under this franchise. In addition, the city is authorized to impose by ordinance a franchise fee up to the amount allowed by lowa law upon the gross revenue generated from sales of gas by the company within the corporate limits of the city. The company and city agree that the city council may in its discretion increase the franchise fee by ordinance, without further consent from the company, provided no increase shall exceed the maximum franchise fee allowed by lowa law. Upon notice, the company shall promptly seek a tax rider tariff from the lowa Utilities Board and the company shall begin 10 collecting the franchise fee and any increased fee upon receipt of written approval of the required tax rider tariff from the lowa Utilities Board. The city shall provide to the company's lowa franchise manager, by certified mail, copies of annexation ordinances and all new property addresses to which the franchise fee will be applied. The company shall commence collecting the franchise fee in the annexed areas sixty (60) days thereafter. (2) The company shall not, under any circumstances be required to return or refund any franchise fees that have been collected from customers and remitted to the city. In the event the company is required to provide data or information in 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 forthe expenses incurred by the company to provide such data or information. Section 23. Adoption; Franchise Effective and Binding. This article and the rights and privileges herein granted shall become effective and binding upon its approval and passage in accordance with lowa law and the written acceptance by the company. The city shall provide company with an original signed and sealed copy of this article within ten (10) days of its final passage. The company shall, within thirty (30) days after the city council approval of this article, file in the office of the clerk of the city, its acceptance in writing of all the terms and provisions of this article. Following city council approval, this article shall be published in accordance with the code of lowa. In the event company does not file its written acceptance of this article within thirty (30) days after its approval by the city council this article shall be void and of no effect. This Ordinance shall be effective once approved in accord with lowa law. Passed and approved this day of , 2018. CITY OF DUBUQUE, IOWA Roy D. Buol, Mayor ATTEST: By: Kevin S. Firnstahl, City Clerk 11 I, Kevin S. Firnstahl, City Clerk of the City of Dubuque, lowa, hereby certify that the above and foregoing is a true copy of Ordinance No. =18, passed by the City Council of said City at a meeting held the day of , 2018, and signed by the Mayor on , 2018, and published as provided by law on the day of , 2018. By: Kevin S. Firnstahl, City Clerk F:\Users\tsteckle�Lindahl�Franchise Fee Ordinance Notebook�Black HiIIs�City of Dubuque BHE franchise_041318bal.dooc 12 ACCEPTANCE The forgoing ordinance amending the Franchise Agreement is hereby accepted by Black Hills/lowa Gas Utility Company, L.L.C. d/b/a Black Hills Energy on the day of , 2018. By: Printed Name Title 13 City of Dubuque Insurance Requirements for Vendors (Suppliers, Service Providers) INSURANCE SCHEDULE G 1. Black Hills/lowa Gas Utility Company, L.L.C. d/b/a Black Hills Energy shall furnish a signed certificate of insurance to the City of Dubuque, lowa for the coverage required in Exhibit I prior to the contract commencement. Each certificate shall be prepared on the most current ACORD form approved by the lowa Insurance Division or an equivalent. Each certificate shall include a statement under Description of Operations as to why the certificate was issued. 2. All policies of insurance required hereunder shall be with an insurer authorized to do business in lowa and all insurers shall have a rating of A or better in the current A.M. BesYs Rating Guide. 3. Each certificate shall be furnished to the Finance Department of the City of Dubuque. 4. The vendor shall be required to carry the minimum coverage/limits, or greater if required by law or other legal agreement, in Exhibit I. Failure to provide the required minimum coverage shall not be deemed a waiver of such requirements by the City of Dubuque. 5. All required endorsements shall be attached to certificate. 6. Whenever an ISO form is referenced, the current edition must be provided. 7. Vendor shall require all contractors and sub-subcontractors to obtain and maintain, during the performance of work, insurance for the coverages commensurate with the work being performed and shall obtain certificates of insurance from all such contractors and sub-subcontractors. Vendor agrees that it shall be liable for the failure of a contractor and sub-subcontractor to obtain and maintain such coverage. The City may request a copy of such certificates from the Vendor. Page 1 of 4 Schedule G Vendors April 2017 City of Dubuque Insurance Requirements for Vendors (Suppliers, Service Providers) INSURANCE SCHEDULE G (continued) EXHIBIT I Vendor will use its corporate insurance proaram,which miaht include a level of self-insurance, or self-insured retention, in fulfillment of the liabilitv obliqations arisinq from anv operations. Anv and all deductibles or self-insured retentions associated shall be assumed bv, for the account of, and at the sole risk of Black Hills Corporation and its subsidiaries. A) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products-Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence $1,000,000 Fire Damage Limit (any one occurrence) $50,000 Medical Payments $5,000 1) Coverage shall be written on an occurrence, not claims made, form. The general liability coverage shall be written in accord with ISO form CG0001 or business owners form BP0002. All deviations from the standard ISO commercial general liability form CG 0001, or Business owners form BP 0002, shall be clearly identified. 2) Include ISO endorsement form CG 25 04"Designated Location(s) General Aggregate Limit." 3) Include endorsement indicating that coverage is primary and non-contributory. 4) Include Preservation of Governmental Immunities Endorsement (Sample attached). 5) Include an endorsement that deletes any fellow employee exclusion. 6) Include additional insured endorsement for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Use ISO form CG 20 10 (Ongoing operations) or its equivalent. 7) Policy shall include Waiver of Right to Recover from Others endorsement. B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory benefits covering all employees injured on the job by accident or disease as prescribed by lowa Code Chapter 85 as amended. Coverage A Statutory—State of lowa Coverage B Employers Liability Each Accident $100,000 Each Employee-Disease $100,000 Policy Limit-Disease $500,000 Policy shall include Waiver of Right to Recover from Other endorsement. Nonelection of Workers' Compensation or Employers' Liability Coverage under lowa Code sec. 87.22 _yes _form attached Page 2 of 4 Schedule G Vendors April 2017 City of Dubuque Insurance Requirements for Vendors (Suppliers, Service Providers) INSURANCE SCHEDULE G (continued) C) ENVIRONMENTAL IMPAIRMENT LIABILITY OR POLLUTION LIABILITY Coverage required: _yes * no Pollution liability coverage shall be required if the lessee, contracting party, or permittee has any pollution exposure for abatement of hazardous or contaminated materials including, but not limited to, petroleum products, the removal of lead, asbestos, or PCBs. Pollution product and completed operations coverage shall also be covered. Each Occurrence $2,000,000 Policy Aggregate $4,000,000 1) Policy to include premises and transportation coverage. 1) Include additional insured for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Use ISO form CG 20 10. (Ongoing operations) as stated in A(6) above. 2) Include Preservation of Governmental Immunities Endorsement. 3) Provide evidence of coverage for 5 years after completion of project. D) PROFESSIONAL LIABILITY $1,000,000 Coverage required: _yes * no Provide evidence of coverage for 5 years after completion of project. E) CYBER LIABILITY $1,000,000 Coverage required: _yes * no Coverage for First and Third Party liability including but not limited to lost data and restoration, loss of income and cyber breach of information. F) UMBRELLA/EXCESS $5,000,000 * yes _no Umbrella/excess liability coverage must be at least following form with the underlying policies included herein. Page 3 of 4 Schedule G Vendors April 2017 City of Dubuque Insurance Requirements for Vendors (Suppliers, Service Providers) PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunitv. The insurer expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, lowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, lowa under Code of lowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coveraqe. The insurer further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of lowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of lowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunitv. The City of Dubuque, lowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurer. 4. Non-Denial of Coveraqe. The insurer shall not deny coverage under this policy and the insurer shall not deny any of the rights and benefits accruing to the City of Dubuque, lowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, lowa. No Other Chanqe in Policv. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN (DEPARTMENT MANAGER: FILL IN ALL BLANKS AND CHECK BOXES) Page 4 of 4 Schedule G Vendors April 2017 � — — Bi�C�[/��FJI�j/ - --,.._.�.__ _____- -- Tracy Peterson 1205 SW 37'"Street Operating Vice President, Iowa Grimes,IA 50111 tracy.peterson@blackhiilscorp.com P:515.343.2017 March 9, 2018 Michael Van Milligen, City Manager City of Dubuque 50 W 13th Dubuque, IA 52001 Letter ofAgreement: Reporting and Community involvement Dear Mr.Van Milligen: In your recent proposal ofthe Black Hills Energy natural gas franchise with the city ofDubuque,you asked about energy efficiency materials and community involvement reports. Both ofthese items are important to us as your community partner. However, we normally do not include this type of language in the franchise document. Instead, we provide a letter of agreement as our pledge to provide that information to you going forward. We will provi@e energy efficiency literature for display in any city facilities you feel appropriate. We will provide replacements and updates whenever you need them. We 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 company's energy efficiency programs. Any new pilot programs developed by the company will be offered first to the city where appropriate or practical for the City of Dubuque. We enjoy participating in Dubuque community events,organizations and projects and making contributions that benefit the residents. As you have requested, we wi(1 share an annual report to the city manager with details. This written report will be provided by June 1 of each year and shall include the name of each entity to which contributions have been made, the amount of such contribution and a comparison showing contributions for the past year and the three(3)prior years. This report will be for the city's internal use on(y. Knowing that it is the City's goal to reduce its greenhouse gas emissions by 50% by 2030, Black Hills Energy will provide an annual update on the steps we have taken to support this goal,including the company's plans to reduce greenhouse gas emissions. We look forward to continuing our partnership to provide your community with safe,reliable natural gas service. Sinc •�ly, T Peterson Operating Vice President, Iowa Gas Improving life with energy www.blackhillscorp.com ORDINANCE N0. 43-93 AN ORDINANCE GRANTING TO PEOPLES NATURAL GAS COMPANY, DIVISION OF UTILICORP UNITED INC. , A CORPQRATION, ITS SUCCESSORS ANQ ASSIGNS, A NON-EXCLUSIVE AUTHORITY FOR A PERIOD OF TWENTY-FIVE (25) YEARS TO MAINTAIN AND OPERATE ITS EXISTING GAS DISTRIBUTION SYSTEM AND CONSTRUCT EXTENSIONS THERETO WITHIN THE LIMITS OF THE CITY OF DUBUQUE, IOWA, INCLUDING ANY 7ERRITORY WHICH MAY BE ANNEXED THERETO DURING THE TERM OF THIS FRANCHISE, AND INCLUDING THE RIGHT TO ERECT AND MAINTAIN ALL NECESSARY FACILITIES AND EQUIPMENT (MAINS, PIPING AND APPUFtTENANCES) IN, UPON, OVER, ACROSS AND ALONG THE STREETS, ALLEYS, BRIDGES AND OTHER SIMILAR PUBLIC PLACES WITHIN THE CITY FOR THE TRANSMISSION, DISTRIBUTION AND SAIE OF NATURAL GAS OR MIXED GAS, AND PRESCRIBING TERMS AND CONDITIONS UNDER WHICH THE COMPANY IS TO QPERATE; AND REPEALING ORDINANCE N0. 17-68. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. Definitions. 1 . Whenever the word "city" appears in this ordinance it is intended and shall be held to mean the City of Dubuque, Iowa. 2. Whenever the word "company" appears in this ordinance it is intended and shall be held to mean Peoples Natural Gas Company, Division of UtiliCorp United Inc. , its successors and assigns. 3 . Whenever the word "grantee" appears in this ordinance, it is intended and shall be held to mean Peaples Natural Gas Company, Division of UtiliCorp United Inc. , its successors and assigns. 4 . Whenever the word ��franchise" appears in this ordinance it is intended and shall be held to mean the grant of authority contained in this ordinance as accepted by the company. 5. Whenever the word ��street�� appears in this ordinance, it is intended and shall be held to mean streets, alleys, bridges, avenues, highways and other similar public places used for transportation purposes within the city. 6 . Whenever the words "mixed gas'� appear in this ordinance, they are intended to designate and shall be held to mean natural gas mixed with other combustible gases by company to augment the company� s gas supply, 7 . Whenever the term "Iowa Utilities Board" is used, it shall mean the utilities board or utilities division established by Iowa Code Chapter 474 (or its successor) . Section 2 . Grant of Franchise. There is hereby granted to the company, its successors and assigns, for a period of twenty-five (25) years a non-exclusive authority to maintain and operate its existing gas distribution system and construct extensions thereto within the limits of the city including any areas added to the city by annexation or otherwise, together with all necessary facilities and equipment (mains, piping and -2- appurtenances) in, upon, over, across, and along the streets of the city for the transmission, distribution and sale of natural gas or mixed gas therein. ,_ Section 3 . Street Usaae. The city reserves to its�lf the power to impose reasonable regulations on the �ompany�s use of streets. The company shall not locate any new or reconstructed gas service lines or other improvements of any kind within the city in the public right of way without the approval of the city. The company agrees to consult with the City as to the location of � any new high pressure gas pipelines carrying a pressure of 70 pounds or more that will be outside the city limits which will serve the city, and use its best efforts to place such lines so they will be compatible with any impacted zoning, economic, development, growth and other plans af the city. Section 4 . Excavations and Other Works. A written permit will be obtained from the city engineer whenever it becomes necessary for the company to excavate in streets or public grounds of the city. Such permits sha11 state a particular part or point of the street where the excavation is to be made and the length of time in which such permit shall authorize the work to �e done. An exception to a requirement for a permit shall be made in cases of emergency involving public safety, in which case a permit will be obtained at the earliest opportunity after the work has started. -3- In making excavations in the streets the company shall not cause unreasaonble inconvenience to the public. The company shall properly protect, according to safety standards generally accepted at the time of placement, as may be determined from time to time by the city engineer, all excavations and obstructions by proper shoring, surface plates, barricades, warning lights and such other or additional devices as circumstances may warrant. If in the opinion of the city engineer such excavation or obstruction is not properly and safely protected, the engineer shall notify the company and the company shall comply with all reasonable instructions. After gas mains and pipes are installed and repaired, the trenches in which such mains or pipes are installed will be refilled by the company. No trench or excavation in the streets shall be filled or covered without giving the city the right to inspect the same. All backfilling in streets will be according to city specifications . Temporary street surfacing will be placed in such excavations as soon as the same has been backfilled. Unless otherwise agreed to by the City Engineer, temporary street surfacing shall mean asphaltic concrete cold mix. However, when an excavation is made in other than the traveled portion of the right-of-way in a residential area, a rolled stone base may be used in accordance with the specifications required by the City' s "Rules and Regulations for Excavating in City Streets and Alleys" -4- in effect at the time. Pavements, sidewalks, curb and gutters or other portions of streets and public places opened, disturbed or damaged by company shall be promptly restored and replaced with like materials by the company at its own expense and left in as good condition as before. In the event like replacement materials are not available, the company shall notify the city engineer who must approve the use of any alternate materials. In the event that the company shall fail to comply with the provision of this section, after having been given reasonable notice, the city may do such work as may be needed to properly repair such pavements, sidewalks, curb and gutters or other portions of streets and public places and the cost thereof shall be repaid to the city by the company. In some cases where a cut or disturbance is made in a section of street paving or sidewalks, rather than replace only the area cut, the company shall replace that area stipulated by the city engineer which in no event sha11 exceed the panel or panels disturbed. Section 5 . Relocation of Pipes Conduit and Services . Whenever the city shall pave or repave any street or sha11 change the grade line of any street or public place or shall construct or reconstruct any conduit, water main service or water connection, sewer or other municipal public works or utility, it shall be the duty of the company, when so ordered by th� city, to change its mains, services and other property in the streets or -5- other public places at its own expense so as to conform to th established e grade or line of such street or public place and so as not to interfere with the conduits, sewers and other mains so constructed or reconstructed. However, the company shall not be required to relocate pipes, mains and appurtenances when the street, alley or public grounds, in which they are located, is vacated for the convenience of abutting property owners and not as an incident to a public improvement, unless the reasonable cost of such relocation and the loss and expense resulting th�refrom is first paid to the com an b P Y y the abutting property owners . In the case of public improvements, including but not limited to Urban Renewal projects, the city may require the company to relocate pipes, mains, services and appurtenances in the streets at company�s expense. The city may at its discretion assign personnel for inspection of excavation and related work being performed by the compan . Should the company fail or refuse to do and perform the thinY gs provided in this ordinance, the city may, after reasonable notice perform the work and charge the reasonable and necessary expense ' thereof to the company and the company shall promptly pay said charges. Section 6. Accessions to Franchise. Where an y gas line is presently or in the future laid anywhere in the corporate limit� of the city, either as now existing or hereafter extended, not in -6- a public street and a street shall thereafter be opened or dedicated so as to include said line within the right-of-way of such street, said gas line shall be required to be operated and maintained under the terms of this franchise. Section 7, Re�resentation of Company. The company agrees to provide and maintain its entire plant and system in such condition that it will furnish safe, adequate, efficient and continuous service . Section 8 . Regulatory Review. To the extent the provisions of this Section 8 are consistent with state and federal law and regulation the rights described in this section are reserved to the City and may be exercised by it in its discretion in accord with the duty of the City to protect the health and welfare of its citizens. Company shall, at all times, maintain an adequate pressure and adequate supply of clean, standard gas of the British Thermal Unit heating value of not less than that prescribed in its Rules and Regulations relating thereto in effect and on file from time to time with the Iowa Utilities Board or other competent authority having jurisdiction in the premises. Should the British Thermal Units fa11 below the limitation set forth in its appropriate Rules and Regulations, the rate then in effect shall be automatically and correspondingly lowered and reduced during any period or periods of time in which such lower British Thermal Unit value -7- shall be furnished. The city shall have the privilege of requesting company to furnish satisfactory proof of British Thermal Unit content of the gas. Gas furnished to consumers under this franchise shall be free from impurities except that it shall contain some element or compound with an easily detected odor in an amount sufficient to be noticeable when the gas is released, but not suff icient to be harmful to human or animal life or to interfere with combustion. A11 gas service shall be supplied through a meter which shall accurately measure the amount of gas supplied to a consumer. The consumer shall supply a safe and proper place for the installation of each such meter. Standards for meters and meter practices shall be in accordance with regulations, rules or directives adopted by the Iowa Utilities Board. Section 9 Reserved Reaulatory Riahts. In the event the State of Iowa or the United States ceases to regulate any aspect of the delivery of gas service now regulated by either or both, the City reserves the right upon such cessation to regulate such matters to the extent such matters are local aff airs impacting the health, safety or welfare of residents of the City. Section 10 Technoloaical Chanqes . Should, within the period of this franchise, developments within the f ield of power or heating substances offer to the company the opportunity to more effectively, efficiently and economically serve its customers -8- through use of a substance or material other than natural gas, then the company may petition the city council which, with such requirements or limitations as it deems necessary to protect public health, safety and welfare, allow the gas of euch substances under the terms and conditions of this franchise. The company shall be allowed to mix other combustible gases with natural gas for distribution within the city as such mixture may be advantageous to the operation of the company. Such use of mixed gas, however, shall not relieve the company of its obligations under this franchise. Section 11. Extension of Service. The company shall be required to extend its gas-distribution system in accordance with rules and regulations relating to customer connections and main and service line extensions currently in effect and on file f rom time to time with the Iowa Utiliti�s Board or other competent authority having jurisdiction. Whenever the distribution system is so extended, those mains and service lines that are beneath pavement will be stubbed to the end of such pavement in anticipation of future growth. Section 12 . Rates. The company sha11 supply gas to consumers within the city at reasonable rates , It is recognized that under the statutes 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 -9- I charged by the company to gas consumers. It is also recognized by both the campany and the city that matters involving rate changes and charges are local in their application and effect and that the city, through its city council, shall be within its privileges and municipal xesponsibilities in making inquiries, expressing interest or adopting position on matters of rate changes or charges by the company. In the event rates or charges in general, or any class or type of rate or charge shall, during the term of this f ranchise, cease to be regulated by any state or federal agency the City Council reserves the right to regulate such rates within the City. Section 13 . Reports to City Council . The company shall file with the city council a true copy of the annual report of the company pertaining to the operation or conduct of business of the company under this franchise. The report may be the same as the company shall have prepared for such year in the ordinary course of the conduct of the business of the company and filed with the Iowa Utilities Board. Section 14 . Maps of Distribution System. The company shall, promptly after the award of this franchise, furnish the city engineer a de�ailed map or maps of its distribution system both within the city limits and the area immediately surrounding the city. The company shall thereafter update the map or maps ever� year showing all subsequent additions or deletions to the -10- distribution system. The company shall indicate on said map or maps the gas pressure in the lines of its distribution network or transmission lines. However, prior to any excavation by- the city or its agents, a representative must contact the company regarding current information on the location of gas mains or gas laterals in the area concerned. The obligation to contact the company under this section shall be satisfied if contact is made with a . corporation organized pursuant to Iowa Code Chapter 480 (1993) or an entity with a similar function utilized by both the City and the company. Section 15 . Indemnification. The company shall indemnify and hold the city harmless at all times during the term of this franchise from and against all claims for injury or damage to persons or property caused by the construction, erection, operation or maintenance of its properties, or the negligence of company contractors or company employees . In case of any suit or action at law being commenced against the City, upon any claim for damage arising out of any loss, injury or damage, claimed to have been caused by any installation, improvement obstruction or excavation in any street, alley, sidewalk or public place in the city of Dubuque, and which installation, improvement, obstruction or excavation was made or left in, under or upon such street, sidewalk, alley or public place by said company, its agents, contractors or employees, upon being notified by said city of such -11- action or proceeding, said company shall appear and make proper defense thereto; and if any judgment or decree shall in any such case be rendered against the City therein, said company hereby agrees to assume, pay and satisfy such judgment or decree, with the costs thereof. Section 16 . Nonassignment . No sale, assignment or lease of this franchise shall be effective until it is approved by the city council and until the company has filed in the office of the city clerk written notice of the proposed sale, transfer, disposition or assignment, such notice to clearly summarize the proposed procedure and the terms and conditions thereof . Such approval by the city shall not be unreasonably withheld. The proposed vendor, assignee or lessee shall similarly file an instrument, duly executed, reciting such proposal, accepting the terms of this franchise and agreeing to perform all the conditions thereof. This provision sha11 not apply to sales, assignments, or transfers made pursuant to a Corporate reorganization, divestiture or consolidation or to a sale of all or substantially all of the gas distribution properties of Peoples Natural Gas . Section 17. Forfeiture of Franchise. The violation of any material portion of this franchise by the company or its successors or assigns, or its failure promptly to perform any of the provisions of this franchise shall be cause for forfeiture of . this franchise and the termination of all rights thereunder. Such -12- forfeiture shall be accomplished by ordinance of the city after written notice by the city manager to the company and a continuation of the violation, failure or default specified in the notice for at least thirty (30) days from the date the notice was served. Section 18 . Severabilitv. If any section or provision of this ordinance is held invalid by a court of competent jurisdiction, such holding shall not affect the validity of any other provisions of this ordinance which can be given effect without the invalid portion or portions and to this end each section and provision of this ordinance is severable. Section 19. Revival . The parties recognize that over the duration of this franchise both technological and regulatory changes will take place which will impact the enforceability of this ordinance or parts of it . In recognition of such factors the parties agree that in the event portions of this ordinance which are now, or in the future, are found or declared inapplicable or unenforceable, become through a subsequent change in law or technology again to be applicable or enforceable, such provisions shall be revived and again form a portion of this ordinance . Section 20 . Cure of Defaults. If either party determines there is a default under this franchise the other party shall be given written notice describing the default in detail, whether a I forfeiture or termination of the franchise will be sought and -13- where curable a reasonable time to cure the default which shall not be less than 30 nor more than 180 days. Section 21 . Reservation of Home Rule Powers. This ordinance is intended to be and shall be construed as consistent with the reservation of 1oca1 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 unless, and only to the extent, they are irreconcilable with any rights granted �he company under this ordinance. Section 22 . Acquisition at Expiration. If at the expiration of this f ranchise the company wishes no longer to operate the gas service system within the city or to sell, assign or lease the system to a third party, then the company shall upon the city' s request, given not earlier than 180 days before expiration or more than 90 days after, sell the gas distribution system to the city . at a price determined by a mutually agreeable appraiser, or if the parties cannot with 60 days of notice agree upon an appraiser, then they shall each appoint an appraiser and the appraisers shall appoint a third, the price shall then be the price the appraisers � agree upon, or if they do not agree within 60 days of being -14- appointed, the price shall be the average of the two appraisals wThich are C�OSAL :�: ��i:�� G'�i�vN�i�. � Section 23 . Franchise Fee, The City Council may, in its discretion after a public hearing, and upon an affirmative vote of all of the members of the Council, impose a franchise fee not to exceed 3� of the gross revenue of the company generated from the sale of natural and mixed gas within the city; provided, however, that the fee shall not be effective against the company unless and until the city imposes a fee or tax of the same percentage on the gross revenue of sales of energy within i:he city by all other energy suppliers with which the City has in effect a franchise agreement allowing such fee. Any such f ranchise fee imposed shall be a direct charge to customers as required by the Towa Utilities Board. ' Section 24 . Adoption. This ordinance following its passage, its ratif ication by a majority of the qualified voters of the city, voting at an election called for the purpos� of voting thereon, and its publication by 1aw provided, sha11 become effective upon its acceptance by the company and sha11 effectively supersede and cancel ordinance no. 17-68, being the prior gas f ranchise held by the company. Passed, approved and adopted this 19th day of JL�1v , 1993 . � D2 r ATTEST: ���� � ���� Mary�'A. Davis, City Clerk -15- 11-4-25: ACCEPTANCE OF ORDINANCE 43-93:'��' 0 I/We, the undersigned officer/s of Peoples Natural Gas Company, Division Of Utilicorp United Inc., a corporation, having read the terms and conditions of Ordinance No. 43-93, attached hereto and made a part hereof, and being familiar with the terms and conditions contained therein, hereby accept Ordinance No. 43-93 as approved by the electorate of the City Of Dubuque, lowa, on August 24, 1993, and agree to perform the terms and conditions contained herein. Dated At Omaha, Nebraska this 8th day of Sepfember, 1993. PEOPLES NATURAL GAS j COMPANY E Division of Utilicorp United Inc. ; � By /s/Melvin J. Semrad �— ---- - __ ----__ � �--- Attest: /s/James R. Talcott Assistant � Secretary � ------------ , .e ____------ ---- ------------ .._.._--------------_ Name Melvin J. Semrad € Typed � � Title ��Sr. Vice President ACKNOWLEDGEMENT AND VERIFICATION OF ACKNOWLEDGEMENT OF FILING OF � F ACCEPTANCE OF FRANCHISE � - - — — � The receipt and filing of the foregoing Acceptance of Franchise pursuant to the provisions of Ordinance No. 43-93, of the City Of Dubuque, is hereby �' acknowledged and verified this 14th day of September, 1993. I/% Mary A. Davis/Clerk (Ord. 43-93, 7-19-1993)