ORDINANCE NO. 14,341
AN
ORDINANCE extending and amending the franchise heretofore granted to Iowa Power
and Light Company, predecessor in interest to MidAmerican Energy Company, and
granting unto MidAmerican Energy Company, its successors and assigns, the
right, franchise and privilege for a period of ten years from and after the
effective date hereof, to acquire, construct, operate and maintain in the City
of Des Moines, Iowa, the necessary facilities for the production, distribution,
transmission and sale of electric energy for public and private use; and to use
and occupy the public streets, highways, avenues, alleys, bridges and public
places for such purposes; providing for the imposition and collection of a
franchise fee in consideration thereof; and prescribing the terms and
conditions thereof.
WITNESSETH:
WHEREAS,
pursuant to Ordinance No. 6280 adopted by the city council on May 4, 1987 and
ratified by the voters at a special election on June 9, 1987, the City of Des
Moines did grant unto Iowa Power and Light Company for a period of 25 years
from and after the effective date thereof, a franchise to acquire, construct,
operate and maintain in the City of Des Moines, Iowa, the necessary facilities
for the production, distribution, transmission and sale of electric energy for
public and private use; and to use and occupy the public streets, highways,
avenues, alleys, bridges and public places for such purposes; providing for the
imposition and collection of a franchise fee from its customers in consideration
thereof; and prescribing the terms and conditions thereof; and
WHEREAS,
this City Council has determined that it would be in the best interests of the
City of Des Moines and its residents to amend said franchise and to extend the
term thereof for a period of ten years, all as hereinafter provided.
Now,
Therefore, Be It Ordained by the City Council of the City of Des Moines, Iowa:
Section 1. Franchise extended.
That the franchise heretofore granted to
Iowa Power and Light Company, to acquire, construct, operate and maintain in
the City of Des Moines, Iowa ("city"), the necessary facilities for
the production, distribution, transmission and sale of electric energy for
public and private use and to construct and maintain along, upon, across and under the streets, highways,
avenues, alleys, bridges and public places the necessary fixtures and equipment
for such purposes, be and the same is hereby extended in the name of
MidAmerican Energy Company (hereinafter "the Company") for a period
of ten years, such that said amended franchise
shall continue in effect until June 15, 2022, at which time said franchise
shall terminate and expire.
Section 2. Representation of Company.
Section 3. Rates.
The Company shall supply electric
energy to consumers within the city at just and 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
charged by the Company to electric energy consumers. In the event rates or
charges in general, or any class or type of rate or charge shall, during the
term of this franchise, cease to be regulated by any state or federal agency
the City Council reserves the right to regulate such rates within the City with the costs of such regulation to borne by the
company as a part of its cost of doing business, and reflected in its rates.
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 the 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 business of the
Company and filed with the Iowa Utilities Board. In the event the city council undertakes to regulate rates for
service within the city, the Company shall provide all information necessary to
permit the City Council to set just and reasonable rates.
Section 5. Compliance with city ordinances.
The Company shall at all times during the
term of this franchise conform with, submit to, and carry out the provisions of
any and all valid ordinances (a) relating to any person, firm or corporation
supplying and distributing electric energy to the city or its inhabitants now in
force or that hereafter may be lawfully enacted; (b) relating to the use of
city right-of-way, including but not limited to the City's Right-of-Way
Management Ordinance, now codified in Chapter 102, Article IX of the Des Moines
City Code, 2000, entitled "Right-of-Way Occupancy", as same may
hereafter be amended; or (c) relating to the city's exercise of its police
powers.
Section 6. Franchise fee.
In consideration of the right to
construct and maintain such facilities and equipment along, upon, across and
under the streets, highways, avenues, alleys, bridges and public places of the
city there is hereby imposed upon the Company and, by its acceptance of this
franchise, it agrees that there shall be collected from Company’s customers
within the corporate limits of the city and remitted by the Company to the
city, a franchise fee in an amount equal to three percent (3%) of the gross
receipts derived by the Company from the transmission or distribution of electric energy
to customers within the corporate limits of the city (excluding,
however, the sale of electric energy to the city)commencing with gross receipts
received on or after September 1, 2004, and that the franchise fee may increase
to an amount not greater than six percent (6%)upon an additional majority vote
of the Des Moines City Council at a duly scheduled City Council meeting after
fourteen (14) days advance public notice.
The obligation to pay the fee imposed by this section is modified
if:
1.
The City permits any other person to sell electrical energy to City consumers
and pay a franchise fee or its lawful equivalent at a lesser rate than provided
in this section, in which case the Company shall collect from its customers and
pay at the lesser rate; or
2.
If the City adds additional territory by annexation or consolidation and is
unable to lawfully impose the franchise fee upon any person selling electrical
energy to consumers within the additional territory, in which case the
franchise fee on the revenue from sales by the Company in the additional
territory shall be equal to that of the lowest fee being paid by any other
person selling electrical energy within the additional area.
Section. 7. Exemption from payment of
franchise fee.
The Company shall be relieved of its
obligation to collect from its customers and remit to the city the franchise
fee if the franchise fee or the manner in which it is collected from customers
is ruled to be unlawful by the Supreme Court of Iowa in a final non-appealable
decision. If a refund to customers is ordered by the Supreme
Court in a final non-appealable decision, the city agrees to repay to the
Company such fees as are ordered to be repaid.
Section 8. Remittance of franchise fee.
The Company shall remit the sum collected
from customers to the city treasurer quarterly on May 1, August 1, November 1
and February 1 of each year for the three-month periods ending respectively
March 31, June 30, September 30 and December 31.
Section. 9. Preservation of city's rights.
This franchise shall not be exclusive and
shall not restrict in any manner the right of the city council or any other
governing body of the city in the exercise of any regulatory power (but not
including the power to acquire by condemnation all or part of the Company’s
facilities) which it may now have, or hereafter be authorized or permitted, by
the laws of the State of Iowa.
The violation of any
material portion of this franchise by the Company or its successors or assigns,
or its failure to promptly perform any of the provisions of this franchise
shall be cause for forfeiture of this franchise and the termination of all
rights under this franchise. Such forfeiture shall be accomplished after
written notice to the Company by the city, and a continuation of the violation,
failure or default specified in the notice for at least sixty days from the
date the notice was served upon the Company.
If
either party determines that there is a default under this franchise, the other
party shall be given a written notice describing the default, stating whether a
forfeiture or termination of the franchise will be sought, and where the
default is curable, providing a reasonable time to cure the default, which
shall be not less than thirty nor more than one hundred eighty days.
Section 11. Reservation of Home Rule Powers.
This
ordinance is intended to be and shall be construed as consistent with the
reservation of local authority contained in the Twenty Fifth Amendment to the
Iowa Constitution granting municipalities home rule powers. To such end any limitation on the power of
the city is to be strictly construed and the city reserves to itself the right
to exercise all power and authority to regulate and control its local affairs,
and all ordinances and regulations of the city shall be enforceable against the
Company unless, and only to the extent, they are irreconcilable with any rights
granted to the Company under this ordinance.
Section 12. Maps of Distribution System.
The Company shall furnish to the
city such mapping data regarding its distribution system as the city shall
hereafter require pursuant to it right-of-way management program and Section
102-663 of the Des Moines City Code, 2000, or successor provision thereto. At the
request of the Company, any information requested with respect to the location
or type of equipment which the Company maintains or plans to install in the
right-of-way, which qualifies as trade-secret information under I.C. § 550.1 et
seq., shall be treated as trade-secret information in accordance with I.C. §
22.1 et seq., pertaining to examination of public records, or which qualifies
to be kept confidential under any provision of I.C. 22.1 et seq.
Section 13. Use of Eminent Domain Powers.
The Company shall have the
power to condemn private property for the purpose of providing electric
utilities to the extent necessary to serve a public use and in a reasonable
relationship to an overall plan of transmitting electricity in the public
interest upon approval of the City Council. The Company must establish
the necessity for each taking of private property, and when so established, the
City Council may approve the condemnation of the private property by
resolution. Any such exercise of the eminent domain powers shall be conducted
in accordance with the Des Moines Municipal Code.
Section 14. Severability; effect of
regulatory actions.
Provisions of this franchise shall not be deemed severable except
as provided in Section 7, and if either party is prevented from fulfilling its
obligations hereunder by final, non-appealable regulatory or judicial action or
by legislative action, the entire franchise shall be deemed of no further force
and effect as of the date of the agency order imposing such regulatory action or
such other date required by such judicial or legislative action.
Section
15. Publication of ordinance and notice; election
upon submission of valid petition; effective date.
Upon Council
adoption of this ordinance, the City Clerk shall publish this ordinance,
together with a notice as hereafter provided, in a newspaper of general
circulation in Polk County, all as required by Section 380.7 of the Iowa Code.
If at any time within twenty days after publication of notice of hearing on
this ordinance a petition is filed with the clerk of the city in the manner
provided by Iowa Code Section 362.4, asking that the question of passage of
this ordinance be submitted to the registered voters of the city, then the
council shall direct the county commissioner of elections to call a special
election upon the question of passage of this ordinance.
This ordinance shall
take effect as provided in the notice to be published by the City Clerk, which
shall read as follows:
Under
the provisions of Section 364.2 of the Iowa Code, Des Moines City Council
Ordinance No. 04 - 14,341, extending the electric franchise heretofore granted
to Iowa Power and Light Company, predecessor of MidAmerican Energy Company,
shall take effect upon September 1, 2004, provided that MidAmerican Energy
Company shall have filed with the city clerk a written acceptance of the
franchise extension granted pursuant to said Ordinance. Provided, however, if
prior to June 21, 2004, a valid petition under Section 362.2 of the Iowa Code
requesting submission to the voters of the proposal to extend said franchise is
submitted to the City Clerk, said Ordinance shall not take effect unless it is
approved by an affirmative majority vote of the electors. Upon the county election commissioner's
certification of an affirmative majority vote of the electors with respect to
the proposal to extend the electric franchise as provided in said Ordinance,
said Ordinance shall take effect.
Passed
_____________, 2004
Signed
_____________, 2004
T.M.
FRANKLIN COWNIE, Mayor
Attest:
I, Diane Rauh, City Clerk of the City of
Des Moines, Iowa, hereby certify that the above and foregoing is a true copy of
an ordinance (Roll Call No. 04-_____), passed by the city council of said city
at a meeting held __________, 2004, and signed by the mayor ____________, 2004,
and published as provided by law in the Des Moines Register on ____________,
2004.
DIANE
RAUH, City Clerk