Chapter 26 - Existing Franchise Ordinances
Division 4 - Corn Belt Electric Cooperative, Inc.
SEC.
26.4-1. Corn Belt Energy Corporation, an Illinois Corporation,
(hereinafter referred to as “Company”) is hereby granted the right,
privilege, authority and franchise to construct, erect, maintain,
repair, replace and operate in, upon, along, across, under and over
the public streets, alleys, and public utility easements, rights
of way, and other public ways (hereinafter referred to as “public
ways”) within the corporate limits of the Town of Normal, as the
same now exist or may hereafter be extended (hereinafter referred
to as the “Town” or “Municipality”) lines of poles, anchors, wires,
cables, conduits, vaults, laterals and other fixtures and equipment,
and to use the same for the transmission, distribution, and sale
of electric energy, for the period from acceptance of the franchise
until December 31, 2015, and thereafter until terminated by sixty
(60) days’ written notice, either by the Municipality to the Company,
or by the Company to the Municipality. The grant of authority herein
shall not include the right to use public ways to conduct customary
cable television services as the same is defined in the Illinois
Municipal Code (65 ILCS 5/11-42-11 State Bar Edition, 2004 as amended).
The grant of authority shall not include the right to allow other
entities to use Company’s fixtures and equipment unless such other
entities or persons have an agreement with the Town to use Town
public ways.SEC. 26.4-2. The location and height above or the depth below the public ways of the existing lines or poles, anchors, wires, cables, conduits, vaults, laterals and other fixtures and equipment of said Company within the Municipality are hereby approved and the same shall be maintained and operated under and subject to the provisions of this Franchise. Any change in or extension of any said poles, anchors, wires, cables, conduits, vaults, laterals or other fixtures and equipment (herein referred to as “structures”), or the construction of any additional structures, in, upon, along, across, under or over the public ways of the Municipality shall be made under the direction of the Director of Public Works of the Municipality, or such other officers as may be designated from time to time by the Manager of the Municipality for that purpose, who shall, if the proposed change, extension or construction conforms to the provisions of the then current Town codes, ordinances, and regulations of uniform application, issue written permits therefore. In the event the municipality fails to respond to a request for a permit within five (5) days, then Company may proceed with the proposed work subject to the right of the municipality to stay work. New wires and cables shall be buried as required by the Town Subdivision Code, except in subdivisions outside the corporate limits subject to Town control new wires and cables may be overhead along unimproved roadways, provided such wires and cables shall be buried as required by the Town Subdivision Code when the adjacent road is improved to urban standards. Main distribution lines (12.5 KV or higher) serving multiple subdivisions may be overhead. All structures hereafter installed shall not unreasonably interfere with customary travel, and all work in connection with such installation shall be so performed as not to interfere unreasonably with customary travel on the streets of the Municipality or with any municipal facility then in place. The tops of all vaults constructed by said Company within the Municipality shall present an even surface with the pavement at the point where laid, and, shall be lowered or raised by said Company to conform to the tops of paving or improvement as required by the governing body of the Municipality whenever the grade of the street or alley in which any such vault is located may be at any time hereafter lowered or raised.
SEC. 26.4-3. The Company, after doing any excavating, shall leave the surface of the ground in a neatly graded condition. All public ways disturbed by said Company shall be restored by it to a condition reasonably similar to the condition that existed before said areas were disturbed by it as determined by the Town, and in the event that any such areas shall become uneven, unsettled or otherwise require repairing because of such disturbance by the Company, then said Company, as soon as climatic conditions will permit, shall, promptly upon receipt of notice from the Municipality cause such areas to be repaired or restored to as good condition as before said areas were disturbed by said Company. The Town shall promptly inspect repaired and restored areas to determine compliance with this franchise. If the repair or restoration is satisfactory, then Town shall notify Company and Company shall be obligated for one (1) year from notice to maintain the repaired and restored areas. The Company shall keep all structures which it shall construct by virtue of this Division, in a reasonable safe condition at all times, and shall maintain such barriers and danger signals during the construction, repair or renewal work performed hereunder as will reasonably avoid damage to life, limb and property.
SEC. 26.4-4. All street light poles erected under this ordinance shall be not more than thirty (30) feet out of ground unless authorized by the Town and all poles and conduits shall be located as not to injure any municipal property. In the event Company causes any injury to municipal property, Company shall forthwith repair the damage caused by such injury. All street light poles shall be set in a straight line as far as possible and no wires shall be attached to any tree. All abandoned poles shall be removed as soon as service is disconnected and the ground restored level with the adjoining surface. Company agrees to only use luminair types approved by Municipality.
SEC. 26.4-5. No buildings shall be erected by Company on any public way within the Town.
SEC. 26.4-6. Municipality gives and grants to the Company the right, privilege and authority, at all times deemed necessary by the Company, to trim trees, or any portion of said trees, or any portion of said trees, upon, along, over and/or across each and all of such streets, avenues, alleys, bridges, easements, rights of way and/or other public places in accordance with Town of Normal ordinances and Illinois Statutes regulating tree trimming by utility companies.
SEC. 26.4-7. Company agrees upon Municipality’s request to remove or relocate any of it structures when Municipality deems it necessary to have the structure changed to another location or position in order to accommodate a municipal public improvement (including but not limited to street improvements, water and sewer main installations or other municipal projects). Where it is necessary for Company to remove or relocate its facilities due to Town construction in a public way, Town agrees to provide final grade and alignment staking. Company agrees to relocate its facilities within thirty (30) days of Town request and after final grade is established by Town. Failure to relocate within forty-five (45) days authorizes Town to relocate at Company’s expense, and Company agrees to pay the expense of such removal or relocation within thirty (30) days of billing by the Town.
SEC. 26.4-8. The Company shall, (except as provided in SEC. 26.4-9), at its own expense, defend all claims, demands or suits that may be brought against the Municipality on account of or in connection with any of the obligations and/or rights hereby imposed upon or granted in this franchise to the Company, or by reason of or in connection with any damage to life, limb or property as a result of any of the work done on structures located within public ways by it under or by virtue of this Franchise, and shall save and keep harmless the Municipality from any and all damages, judgments, costs and expenses of every kind, that may arise by reason thereof; provided, that notice in writing shall be promptly given to said Company of any claim or suit against the Municipality which, by the terms hereof, the said Company shall be obligated to defend, or against which the Company has hereby agreed to save and keep harmless the Municipality and provided further that the Municipality shall furnish to said Company all information in its possession relating to said claim or suit, co-operate with said Company in the defense of said claim or suit. The Municipality may, at no charge to Company, if it so desires, assist in defending any such claim or suit. The Company will not rely upon governmental immunity afforded to the Municipality, and further agrees that it will pay the costs including attorney fees incurred by the Municipality for the necessary defense of any suit not only against the Municipality but also against its officers and employees resulting from this franchise agreement.
SEC. 26.4-9. As a consideration for the rights, privileges, and authority hereby granted, while said Company is using any public way, it will permit the Municipality the use of sufficient space on the poles or adequate facilities for municipal purposes (including, but not limited to traffic regulatory signs, telecommunications and data transmission lines), except municipality shall not use Company’s facilities for the retail sale of services. The Company reserves the right to designate the type of facilities to be furnished to the Municipality for the purposes as stated herein. Such use by Municipality shall not unreasonably interfere with Company facilities. If the Company modifies or plans to remove poles, municipality shall remove facilities from poles within thirty (30) days. The Municipality shall, at its own expense, defend all claims, demands, or suits on account of any injury to life, limb or property that may result by reason of or in connection with the presence, use, maintenance, erection or removal of the Municipality’s wires and their appurtenances pursuant hereto, and hereby agrees to save and keep harmless said Company from any and all damages, judgments, costs and expenses of any kind which may arise by reason thereof.
SEC. 26.4-10. Until such time as Municipality and Ameren IP enter into a Franchise Agreement -- Company agrees as follows:
- To furnish, within the Company’s service area within the
Town, fifty percent (50%) of all electric street lighting service
free of charge.
- To furnish free of charge all electric service for lighting purposes for all Town owned facilities including but not limited to buildings, water treatment plant, sewer lift stations, water well pumps, yard lights, and parking lot lights. Free service pursuant hereto shall apply only if separately metered. It is agreed the following athletic facilities shall not be separately metered: Athletic fields, tennis courts, swimming pools and golf course driving ranges.
SEC. 26.4-11. Until such time as Municipality and Ameren IP enter into a Franchise Agreement Company agrees to pay Town a fee equal to one percent (1%) of the residential receipts received by Company for services provided by Company to customers within the Town of Normal. Such fee shall be payable on a monthly basis beginning thirty (30) days following the date of execution of this agreement. Town shall have the right, upon reasonable notice, to audit Company’s books and records for purposes of determining compliance with this section.
SEC. 26.4-13. Franchise Fee.
Within thirty (30) days following execution of a new Franchise Agreement
between Municipality and Ameren IP the parties agree to the following
described franchise fee and Sections 26.4-10 and 26.4-11 shall become
ineffective.
As consideration for the rights, privileges, and authority hereby
granted, while Company is using any public way, Company agrees to
pay Town a minimum fee amount equal to the receipts received by
Town, on the date this fee structure is implemented, pursuant to
the 1% fee provided in Section 26.4-11 above per year and the value
of services provided in Section 26.4-10. The fee shall be assessed
and collected on a monthly basis for kilowatt hours of electricity
delivered within Town to each customer of Company. The parties agree
to establish a block rate method of assessment and collection, using
blocks of electricity consumed as set forth in 35 ILCS 645/5-1 et
seq. The rates initially established for these kilowatt hour blocks
shall generate a minimum annual amount as provided herein. The parties
recognize that receipts under this method of assessment and collection
may fluctuate from year to year based on kilowatt hours of electricity
consumed within the Town. Company agrees to annually adjust the
rates for each kilowatt hour block in order to generate a minimum
amount as provided herein. No adjustment shall be made in the event
the block rate method generates more than the amount described herein.
The assessment rate will be same rate imposed on Ameren/IP.
In the event Town elects to impose an infrastructure maintenance
fee pursuant to 35 ILCS 645/5-1 et seq. or other similar legislation
authorizing such fee, the parties agree that the value of the franchise
fee provided in this agreement is a minimum amount as determined
herein and subject to increase based on growth of kilowatt hours
of electricity consumed within the Town. The assessment rate will
be the same rate imposed on Ameren/IP.
Any fee provided herein shall be payable on a monthly basis beginning
30 days following the effective date of this agreement.
Town shall have the right, upon reasonable notice, to audit Company’s
books of records for the purpose of determining compliance with
this Section.
SEC. 26.4-14. The Company, after ten (10) working days written notice from a representative of the Municipality to do so, shall remove or raise or lower its structures temporarily to permit the moving of a building or any other object along a street, provided the benefited party or parties shall agree to pay the Company an amount equal to the actual cost of effecting such temporary changes in its structures; and provided further that, pending the determination of such actual cost, the benefited party or parties shall have deposited with the Company an amount equal to the costs as estimated by the Company. Should any amount of said deposit remain unexpended, after deducting the actual cost involved, said amount shall be returned to the party making the deposit.
SEC. 26.4-15. The Company does further agree to furnish an indemnifying performance letter of credit or cash escrow in the minimum amount of one hundred thousand dollars $100,000.00). Form and bank to be approved by the Town of Normal.
SEC. 26.4-16. In case said Company
shall fail or neglect to comply with any or all of the provisions
of this Franchise (unless by order of the Illinois Commerce Commission
or any other body, board, commission or court of competent jurisdiction),
the Municipality reserves the right to repeal this Franchise or
rescind this contract, and forfeit the rights hereby created or
sought to be created, provided that no such repeal, rescission or
forfeiture shall exist or be claimed because of such failure or
neglect, until written notice of such failure or neglect so claimed
shall have been given to said Company, and a reasonable opportunity
afforded it to comply with the provisions hereof or to prove that
such compliance already exists.
Alternatively, or in addition to the revocation rights provided
above, Municipality and Company may mutually invoke binding arbitration
concerning any dispute between Company and Municipality arising
out of this Franchise. The arbitration panel shall consist of three
(3) members, being one member chosen by each party and one member
chosen by agreement of those two members. Arbitration shall be expedited
and shall be conducted in accordance with the Illinois Uniform Arbitration
Act (710 ILCS 5/1 et seq). The arbitration panel shall have authority
to order compliance with the Franchise Agreement and assess against
the non-complying party actual damages incurred by the other party.
In the event the Illinois legislature, the Illinois Commerce Commission
or any other body, board, commission or court of competent jurisdiction
shall preempt, or adjudge any provision or provisions hereof invalid
or illegal, or direct a change by the company in any matter or thing
herein contained such invalidity or illegality or change shall in
no way affect the remaining provisions of this Franchise, or their
validity or legality, and this Franchise in all other respects shall
continue in full force and effect, as if said provision or provisions
had not been so adjusted invalid or illegal or such change directed
provided however, in the event of any of the preceding conditions,
either party may upon a sixty (60) day notice request re-negotiations
of this Agreement in whole or in part.
SEC. 26.4-17. In the event Company breaches any term or condition of this agreement, Town shall have in addition to the remedies provided in Section 26.4-16 any other remedy provided by law including the right to seek equitable relief in any court of competent jurisdiction. In the event of litigation, Company consents to venue in McLean County, Illinois. The parties may, by mutual agreement, submit disputes to arbitration in accordance with the Illinois Uniform Arbitration Act.
SEC. 26.4-18. All grants, franchises, rights, licenses and privileges heretofore made or granted the Company, are hereby revoked and repealed, it being the intention that this Franchise shall contain all grants, franchises, rights, licenses and privileges of said Company, and all obligations of said Company in connection therewith.
SEC. 26.4-19. This Agreement is binding upon the parties, its successors, and assigns. This Agreement shall not be assigned in whole or in part without the written consent of municipality.
SEC. 26.4-20. This Franchise shall be in full force upon receipt, by the Clerk of the Municipality, of the Company's written and unconditional acceptance of all the provisions of this Division executed by its proper officers thereunto duly authorized, under the corporate seal of said Company, and attested by its Secretary or Assistant Secretary.
(Entire Division 26 Amended 12/19/05 by Ord. No. 5045)