Interstate Power and Light Company Franchise Agreement Copyright 2014
City of Dubuque Items to be set for Public Hearing # 1.
ITEM TITLE: Interstate Power and Light Company Franchise Agreement
SUMMARY: City Attorney recommending approval of a resolution setting a public
hearing for January 5, 2015.
RESOLUTION Setting a Public Hearing on an Ordinance granting to
Interstate Power and Light Company, its successors and assigns, the right
and non-exclusive franchise to acquire, construct, erect, maintain and
operate in the City of Dubuque, Iowa, an electric system and to furnish and
sell electric energy to the City and its inhabitants and authorizing the City
to collect franchise fees for a period of 25 years
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt Resolution(s)
ATTACHMENTS:
Description Type
❑ Staff Memo Staff Memo
❑ Resolution Resolutions
❑ Ordinance Supporting Documentation
THE CITY OF
DUB-�6 E MEMORANDUM
Masterpiece on the Mississippi
BARRY LINDAHL
CITY ATTORNEY
To: Mayor Roy D. Buol and
Members of the City Council
DATE: December 9, 2014
RE: Resolution Setting a Public Hearing on an Ordinance Granting To
Interstate Power and Light Company a Non-Exclusive Franchise for Its
Electric System
In 1993, the City Council adopted an ordinance granting to Interstate Power Company,
its successors and assigns, a non-exclusive authority for a period of 25 years to
maintain and operate its existing electrical system in the city of Dubuque. That
franchise expires February 15, 2019. The City Manager has negotiated a proposed
new franchise agreement with Interstate Power and Light Company, a successor to
Interstate Power Company. Iowa 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.
The attached resolution sets a public hearing on the proposed franchise for January 5,
2015. The resolution also dispenses with an election on the adoption of the ordinance
as provided by Iowa 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 Notebook\Interstate Power&Light\MayorCouncil_ResolutionSetting Public Hearing_Interstate_120914.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/EMAIL balesq@cityofdubuque.org
RESOLUTION NO. 388-14
SETTING A PUBLIC HEARING ON AN ORDINANCE GRANTING TO
INTERSTATE POWER AND LIGHT COMPANY, ITS SUCCESSORS AND
ASSIGNS, THE RIGHT AND NON-EXCLUSIVE FRANCHISE TO ACQUIRE,
CONSTRUCT, ERECT, MAINTAIN AND OPERATE IN THE CITY OF DUBUQUE,
IOWA, AN ELECTRIC SYSTEM AND TO FURNISH AND SELL ELECTRIC
ENERGY TO THE CITY AND ITS INHABITANTS AND AUTHORIZING THE CITY
TO COLLECT FRANCHISE FEES FOR A PERIOD OF 25 YEARS
Whereas, Ordinance No. 58-93 granted to Interstate Power Company, its
successors and assigns, a nonexclusive authority for a period of twenty-five
years to maintain and operate its existing electrical system in the City of Dubuque
(the Current Franchise Agreement), which Current Franchise Agreement expires
February 15, 2019; and
Whereas, Interstate Power and Light Company is a successor to Interstate
Power Company; and
Whereas, the City Council of the City of Dubuque and Interstate Power and
Light Company 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 Interstate Power and Light Company is hereby set for the
5th day of January, 2015 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.
Passed, approved and adopted the 15th day of December, 201 .
Roy D. BufMayor
Attest:
Trish L. Gleason, Assistant City Clerk
ORDINANCE NO.
AN ORDINANCE REPEALING ORDINANCE NO. 58-93 AND GRANTING TO
INTERSTATE POWER AND LIGHT COMPANY, ITS SUCCESSORS AND
ASSIGNS, THE RIGHT AND NON-EXCLUSIVE FRANCHISE TO ACQUIRE,
CONSTRUCT, ERECT, MAINTAIN AND OPERATE IN THE CITY OF DUBUQUE,
IOWA, AN ELECTRIC SYSTEM AND TO FURNISH AND SELL ELECTRIC
ENERGY TO THE CITY AND ITS INHABITANTS AND AUTHORIZING THE CITY
TO COLLECT FRANCHISE FEES FOR A PERIOD OF 25 YEARS.
BE IT ENACTED by the City Council of the City of Dubuque, Iowa:
Section 1. Except as explicitly provided in Section 12 hereof regarding the
continuation of the present franchise fee, Ordinance No. 58-93 (City Code Sections 1I-
5A-1 through 11-5A.24 both inclusive) and all amendments and supplements thereto
shall upon the effective date of this franchise be repealed and replaced by this Ordinance.
Upon the effective date of this ordinance, all prior electric franchises granted to the
Company to furnish electric service to the City and its inhabitants are hereby repealed
and all other ordinances or parts of ordinances in conflict herewith are also hereby
repealed.
Section 2. There is hereby granted to Interstate Power and Light Company,
(hereinafter called "Company") and to its successors and assigns, the right and non-
exclusive franchise to acquire, construct, reconstruct, replace, erect, maintain and operate
in the City of Dubuque, Iowa (hereinafter called the "City") a system for the distribution
of electric energy along, under, over and upon the streets, avenues, rights of way, alleys,
public places or public grounds (excluding parks) to serve customers within the City, and
to furnish and sell electric energy to the City and its inhabitants. 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. The Company is granted the right to exercise of
powers of eminent domain. This franchise shall be effective for a twenty-five (25) year
period from and after the effective date of this ordinance.
Section 3. The Company shall have the right to erect all necessary poles and to
place thereon and attach thereto the necessary wires, guys, anchors, fixtures and
accessories as well as to excavate and bury conduits or conductors and related equipment
and appurtenances for the distribution of electric energy in and through the City, provided
the same shall be placed in accord with this franchise and the City Code and regulations
of the City of Dubuque regarding the placement, replacement, repair or construction of
structures, facilities, accessories or other objects in the right of way by utilities and
other users of the right of way, including ordinances which assign corridors or other
placements to users of the right of way and requirements which may be adopted
regarding separations of structures, facilities, accessories or other objects.
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Section 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 Iowa law, including Company's Tariff on file with
and made effective by the Iowa 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.
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 non-public development, the Company shall receive
payment for the cost of such relocation as a precondition to relocating its existing
facilities or equipment.
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 three (3) years.
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 5. In making excavations in any streets, avenues, alleys and public places
for the installation, maintenance or repair of any conductor, conduit or other
appurtenance or the erection of poles and wires or other appliances, 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 therefore 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 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.
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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 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.
Section 6. 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 electric facilities, the City shall grant the Company a
utility easement for said facilities. This paragraph 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 7. The Company agrees that, unless there are extenuating circumstances
because of damage, supply shortage or other reason beyond the Company's control, the
Company shall replace any street light which is burned out or otherwise not functioning
within ten days of receipt of written notice specifying the street light in need of
replacement or repair. If because of extenuating circumstances the Company will not be
able to replace or repair a street light within ten (10) days after notice, the Company shall
notify the City within ten (10) days of the receipt of written notice from the City what the
extenuating circumstances are, including a date when the street light will be repaired or
replaced.
The Company shall adopt a program and provide a written copy to the City, under
which the Company will convert all street lights in the City to Light Emitting Diode
(LED) lights within five (5) years of the effective date of this franchise. The Parties
agree that should an improved technology be developed and commercially reasonable
during this franchise, thereafter, the Company may, at its option, substitute different
lighting technologies that provide an amount and quality of light that is at least equal to
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that provided by the LED technology. Before installing any such substitute technology,
the Company must obtain the City's approval, such approval shall not be unreasonable
withheld.
Section 8. The Company shall maintain the availability of service throughout the
entire City including newly annexed areas, but excluding areas designated by the Iowa
Utilities Board to be the exclusive service territory of another electric provider, by
extending lines or facilities in a manner consistent with Iowa law. The Company shall
furnish electric energy 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 Iowa Utilities Board.
Section 9. Upon reasonable request the Company shall provide the City, on a
project specific basis, information indicating the horizontal location, relative to
boundaries of the right of way, of all equipment which it owns or over which it has
control that is located in City right of way, including documents, maps and other
information in paper or electronic or other forms ("Information"). The Company shall
also provide upon request of the City information including mapping data indicating the
horizontal and vertical locations, relative to the boundaries of the right-of-way, of all
equipment which the Company owns or over which it has control and which is located in
any right-of-way. With respect to equipment which was in place as of December 31,
1998, the Company may satisfy this requirement by providing copies of maps showing
equipment locations which were developed and kept by the Company in the ordinary
course of business, provided that if such maps do not show the location of all such
existing equipment, the Company will be required to field locate equipment not shown on
such maps and provide mapping data for such equipment provided that respect to
equipment which the Company placed within the right-of-way after December 31, 1998,
the Company shall provide mapping data with the specificity and in the format required
by the City for inclusion in the mapping system used by the City, as more specifically
provided in the City's utility accommodation and street restoration specifications. 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
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388.113, or Chapter 22 of the Code of Iowa, as such statutes and regulations may be
amended from time to time. In the event 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 shall have the right to assume the defense
of said action. The Company shall reimburse the City any and all costs, including
attorney fees and penalties, to the extent allowed by law which may result from any said
action.
Section 10. The pruning and removal of trees shall be done in accordance with
current nationally accepted safety and utility industry standards and federal and state law,
rules and regulations. The Company is authorized and empowered to prune or remove at
Company expense, any tree extending into any street, avenue, right of way, alley, public
place or public grounds to maintain electric reliability, safety, to restore utility service
and to prevent limbs, branches, or trunks from interfering with the wires and facilities of
the Company. The pruning and removal of trees shall be completed in accordance with
nationally accepted safety and utility standards, currently ANSI Z133-2012, American
National Standard for Arboricultural Operations-Safety Requirements, and ANSI
A300(part 1) - 2008Pruning, American National Standard for Tree, Shrub, and other
Woody Plant Maintenance - Standard of Practices Pruning, and subsequent revisions to
these standards. In the event any tree is removed by the Company, or is damaged to the
extent that the city forester determines the tree has lost its viability or functionality,
because the Company has removed or trimmed a tree in violation of this paragraph, the
Company shall pay the City upon invoice the sum of Three Hundred Fifty dollars ($350)
per tree, which amount shall be adjusted annually commencing on the first anniversary of
the adoption of this franchise, and each anniversary thereafter by the change in
percentage in the United States Bureau of Labor Statistics Consumer Price Index ("CPI")
as of the applicable anniversary of this franchise compared to the CPI as of the same date
of the previous year.
Section 11. The Company shall indemnify, save and hold harmless the City from
any and all claims, suits, losses, damages, costs or expenses, including attorneys' fees, on
account of injury or damage to any person or property, to the extent caused or occasioned
in whole or part by the Company's negligence in construction, reconstruction, excavation,
operation or maintenance of the electric facilities authorized by this franchise; provided,
however, that the Company shall not be obligated to defend, indemnify and save
harmless the City for any costs or damages to the extent arising in whole or part from the
negligence of the City, its officers, employees or agents.
Section 12. The franchise fee presently imposed by the City upon the Company
under Ordinance No. 58-93 (City Code Sections 11-5A-1 through 11-5A.24, both
inclusive) shall continue under this franchise. In addition the City is authorized to
impose by ordinance a franchise fee up to the amount allowed by Iowa law upon the
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gross revenue generated from sales of electricity 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 Iowa
law. Upon notice, the Company shall promptly seek a tax rider tariff from the Iowa
Utilities Board and the Company shall begin collecting the franchise fee and any
increased fee upon receipt of written approval of the required tax rider tariff from the
Iowa Utilities Board. The City shall provide to the Company's Iowa 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.
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 for the expenses incurred by the Company to
provide such data or information.
Section 13. 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
of the Company nor shall the City be required to obtain additional right of way solely for
the use of the Company.
Section 14. In the event the Company is required to move, remove or modify the
placement of any of its poles, lines, wires, conduit, conductors, fixtures, accessories,
equipment or appurtenances 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.
Section 15. The Company shall make an annual written report to the City
Manager summarizing community contributions that-benefit the people of the City which
have been made by the Company or its foundation. The written report shall include the
name of each entity to which such contributions have been made, the amount of such
contribution and a comparison showing contributions for that year and the three (3) prior
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years.
Section 16. The City shall be privileged upon thirty (30) days advance notice to
the Company, without charge, to make use of the distribution poles of the Company that
are placed within City right of way for any City alarm, City control, or City
communication function, including City cameras, excluding any paid subscriber services
(but including any City owned cable or wire line communication system for which use
the City shall pay an amount consistent with federal law), to the extent that such use shall
not interfere with their use by the Company, but the City shall hold the Company
harmless from any and all causes of action, litigation or damages arising through the
placing of the facilities of the City upon the company's poles. If at the sole discretion of
the company, it is determined that said attachments may create a clearance violation or
other hazardous situation, or that wind or other conditions may place undue stress on
specific Company facilities, the City shall not be authorized to attach to those facilities. If
attachments are in place, upon notification by the Company of damage or potential
damage, the City shall promptly remove said attachments. The Company will contact the
City Manager in the event of an emergency.
Section 17. The Company will provide to the City energy efficiency materials
and rebate forms for display in the building permit department and other City
departments as requested by the City. The Company 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.
Section 18. The Company shall make an annual written report before June 1 of
each year to the City Manager summarizing the aggregate electric use in the City by
sector or type of customer. This report shall indicate the percentage of energy used within
the City derived from renewable resources. In addition, the Company will implement
starting before the end of 2015 systems to promote customer choice by providing
information regarding rates and pricing and available technologies which allow
customers to make rational usage decisions and in addition shall install systems to
integrate the grid within the City to allow customers to aid in creating system reliability
and stability, and provide options for alternative generation in coordination with the
Company with attention to integrating renewable supported alternative generation which
minimizes or reduces environmental impacts, improves efficiency and reduces carbon
fuel usage.
Section 19. In the event that the Company should have real estate or any interest
in real estate within the City or within two (2) miles of the then current boundaries of the
City, which it intends to sell, transfer or which it otherwise intends to divest the
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Company, it shall first offer to sell or transfer said property to the City upon the terms
and conditions upon which the Company intends to sell, transfer or divest itself and in no
case shall the Company sell, transfer or divest itself of any said interest in real property
without first offering equal terms to the City. The City shall have ninety (90) days to
respond to any offer of sell or transfer or divestiture. The failure of the City to respond in
ninety (90) days shall be deemed a refusal by the City and the Company may then sell,
transfer or otherwise divest of such real estate or interest in real property free of any
claim or hindrance by the City.
Section 20. The City reserves to itself all home rule authority under the
Constitution of Iowa.
Section 21. 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 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 party.
Section 22. If any of the provisions of this franchise ordinance are for any reason
declared to be illegal or void, the lawful provisions of this franchise ordinance, which are
severable from said unlawful provisions, shall be and remain in full force and effect, the
same as if the franchise ordinance contained no illegal or void provisions.
Section 23. This ordinance and the rights and privileges herein granted shall
become effective and binding upon its approval and passage in accordance with Iowa law
and the written acceptance by the Company. The City shall provide Company with an
original signed and sealed copy of this ordinance within 10 days of its final passage. The
Company shall, within thirty (30) days after the City Council approval of this ordinance,
file in the office of the clerk of the City, its acceptance in writing of all the terms and
provisions of this ordinance. Following City Council approval, this ordinance shall be
published in accordance with the Code of Iowa. The effective date of this ordinance shall
be the date of publication. In the event Company does not file its written acceptance of
this ordinance within 30 days after its approval by the City Council this ordinance shall
be void and of no effect.
This Ordinance shall be effective once approved in accord with Iowa law.
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PASSED AND APPROVED this day of 12015.
CITY OF DUBUQUE, IOWA
By:
Mayor/Mayor Pro Tem
ATTEST:
(OFFICIAL SEAL)
City Clerk
I, , City Clerk of the City of Iowa, hereby certify that the
above and foregoing is a true copy of Ordinance No. - passed by the City
Council of said City at a meeting held 2015, and signed by the mayor
2015, and published as provided by law on 12015.
(OFFICIAL SEAL)
City Clerk
01070067-1\10422-000
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