[Adopted by Ord. No. 19-08 (Ch. 111 of the 2000 Code)]
There is hereby granted to Interstate Power and Light Company, hereinafter referred to as the "company," its successors and assigns, the right and nonexclusive franchise to acquire, construct, reconstruct, erect, maintain and operate in the City, works and plants for the manufacture and generation of electricity and a distribution system for electric light, heat and power and the right to erect and maintain the necessary poles, lines, wires, conduits and other appliances for the distribution of electric current along, under and upon the streets, alleys and public places in the said City to supply individuals, corporations, communities, and municipalities both inside and outside of said City with electric light, heat and power for the period of 25 years, subject to a right of cancellation at the end of the 20th year; also the right of eminent domain as provided in § 364.2 of the Code of Iowa.
The poles, lines, wires, circuits, and other appliances shall be placed and maintained so as not to unnecessarily interfere with the travel on said streets, alleys, and public places in said City nor unnecessarily interfere with the proper use of the same, including ordinary drainage, or with the sewers, underground pipe and other property of the City. The said company, its successors and assigns shall hold the City free and harmless from all damages to the extent arising from the negligent acts or omissions of the company in the erection or maintenance of said system.
In making any excavations in any street, alley or public place, company, its successors and assigns, shall protect the site while work is in progress by guards, barriers or signals, shall not unnecessarily obstruct the use of the streets, and shall backfill all openings in such manner as to prevent settling or depressions in surface, pavement or sidewalk of such excavations with same materials, restoring the condition as nearly as practical. The company shall not be required to restore or modify public right-of-way, sidewalks or other areas in or adjacent to the company project to a condition superior to its immediate previously existing condition. The company shall make all such restorations in a reasonable amount of time following completion of the work, and shall not cause any undue delay that is not caused by weather, fire, natural disaster, unavoidable accidents or casualties.
The company shall, 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, at its cost and expense, locate and relocate its existing facilities or equipment in, on, over or under any public street or alley in the City in such a manner as the City may at any time reasonably require for the purposes of facilitating the construction, reconstruction, maintenance or repair of the street or alley or any public improvement of, in or about any such street or alley or reasonably promoting the efficient operation of any such improvement. If the City requires the company to relocate facilities in the public right-of-way that have been relocated at company expense at the direction of the City during the previous five years, the reasonable costs of such relocation will be paid 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 private developer or other nonpublic entity, the company shall receive payment for the cost of such relocation as a precondition to relocating its existing facilities or equipment. 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.
The City understands that the company will be bound to relocate or replace any facilities in compliance with the Iowa Utilities Board regulations, the company's tariffs, and all applicable federal and state codes. The company understands that for aspects of facilities that are not related directly to the generation and distribution of electricity, there may be zoning or other ordinances and standards which apply to all developers within an area of the City. The company agrees to abide by these ordinances and standards to the extent they do not unreasonably interfere with the company's ability to carry out its ordinary and necessary business functions or place undue burdens on the company. The City and the company agree to work with one another to ensure that the interests of both entities are protected.
Prior to the City abandoning or vacating any street, avenue, alley or public ground where the company has electric facilities, the City shall grant the company a utility easement for said facilities. If the City does not grant the company a utility easement for said facilities prior to abandoning or vacating a street, avenue, alley or public place, the City shall at its cost and expense obtain easements for existing company facilities.
Upon reasonable request, and to the extent company keeps such information in the ordinary course of business, 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 the public right-of-way, including documents, maps and other information in paper or electronic or other forms ("information"). The company and City recognize the information may in whole or part be considered a confidential record under state or federal law, or both. Upon receipt of a request from a third party for information concerning information about the company's facilities within the City, the City will promptly submit same to company. If the company believes any of the information requested constitutes a trade secret which may otherwise be protected from public disclosure by state or federal law, or otherwise 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 Iowa, as such statutes and regulations may be amended from time to time, then the company shall provide the City with a written explanation of the basis for such assertion of confidentiality or exemption from disclosure within 10 days.
Company operations staff will, at the request of the City, attend an annual meeting with City public works staff, utility staff and other interested City entities to discuss utility reliability standards, including comparisons to regional and national reliability statistics, annual and long-term construction planning for the company and City, tree trimming plans and other related items. This will not replace any periodic meetings needed on specific projects and issues.
The company is authorized and empowered to prune or remove at company expense any tree extending into any street, alley 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 performed in accordance with company's then current line clearance vegetation plan as filed and approved by the Iowa Utilities Board, as well as all applicable codes and standards referenced therein.
During the term of this franchise, the company shall furnish electric energy in accordance with the applicable regulations of the Iowa Utilities Board and the company's tariffs. The company will maintain compliance with Iowa Utilities Board regulatory standards for reliability.
When company intends to replace, upgrade, or install new lines overhead, the City may request estimates for the undergrounding of such replacement lines, upgrades or new lines, including lines to be adjusted for road moves, for specific projects addressed at the annual planning meeting, as referenced in § 355-7. When requested, the company will provide to the City two estimates: 1) an estimate for the cost of the project with overhead construction and 2) an estimate for the cost of the project with underground construction. The City will have no more than 60 days from the estimate date to determine if it wants the line built overhead or placed underground. If the City chooses underground construction for the project, the City or the company's customers within the City will be responsible for the incremental cost of "undergrounding," defined as the differential between the estimate for underground construction and the estimate for overhead construction. Within a reasonable period of time after receipt of the payment for the incremental cost of undergrounding, the company will install the underground facilities. The company reserves the right to bill for the amount that the incremental cost associated with installation exceeds its estimate. The City reserves the right to a refund of overpayment if the incremental costs are less than the amount billed in the estimate. If the City wishes to have a line not scheduled for replacement or upgrade placed underground, the City shall contact the company to make such a request. The City or the company's customers within the City shall cover all costs related to this work. If undergrounding of distribution or service lines requires customers of the company to make adjustments to customer-owned electrical systems, the City bears the responsibility of communication with those customers and, if it chooses, the cost of converting the customer's utility entrance from overhead to underground. The company reserves the right to review all of the City's communications with its customers. The City may elect to have the company bill the City directly or bill the company's customers within the City's boundaries for any costs attributable to the City under this section or any other applicable sections as provided in the company's Government Facilities Relocation Rider.
Service to be rendered by the company under this franchise shall be continuous unless prevented from doing so by fire, acts of God, unavoidable accidents or casualties, or reasonable interruptions necessary to properly service the company's equipment, and in such event service shall be resumed as quickly as is reasonably possible.
The company, upon request of the City, and without cost to it, shall permit its poles, conduits and other distribution facilities, so far as may be done without interfering with the free use its own wires and fixtures, to be used for the purpose of maintaining thereon any control wires and other appurtenances which may be necessary for any use by the City. The City shall defend, indemnify, and hold the company harmless from any and all causes of action for injury, litigation or damages which may arise out of or by reason of the placing or maintenance of such control wires and other appurtenances by the City upon facilities of the company, provided such causes of action did not arise out of the negligence of the company. Such control wires and other appurtenances shall meet all applicable codes, rules and regulations that may be in effect. Specifically, all installations of said wires and appurtenances shall be conditioned upon compliance with the safety rules of the company, as well as the requirements of the National Electric Safety Code (NESC) or other safety requirements as adopted by the Iowa Utilities Board under 199 IAC Chapter 25. If the company has a need for space utilized by the City, including conduits, the City will, within a reasonable period of time, remove said control wires and appurtenances or will, at its own cost, provide the company with a reasonable alternative location, that similarly allows expansion of the electrical distribution system serving the electric customers, without disrupting company operations.
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.
If the City would at any time desire to purchase the company's streetlights located within the City, the company agrees to negotiate the sale of such streetlights. The terms and conditions of such a sale will include that the streetlights will be purchased at a mutually agreed price and on an as is, where is basis. Upon sale, City shall assume all risk and loss related to the operation and maintenance of the purchased streetlighting. Any agreement will require the City to purchase all streetlights in the corporate limits of the City that are owned by the company.
The franchise granted by this ordinance shall not be exclusive.
The company, upon request of the City, shall explore with the City agreements that are mutually beneficial, and economically feasible to both parties, for interconnection of alternative energy electrical facilities, use of facilities and purchase of excess alternatively produced power, in a timely manner, adhering to all federal, state or local codes, rules and regulations in effect at the time of agreement. The company will work with the City for fair regulatory treatment of such projects. Agreements are subject to generation reliability requirements.
[Amended 5-18-2023 by Res. No. 23-08]
There is hereby imposed a franchise fee of 5% upon the gross revenue generated from sales of electricity by the company within the corporate limits of the City.
The franchise fee shall not be applied to any account for the City of Marion or the City of Marion Water Department.
The company shall begin collecting the franchise fee upon receipt of written approval of the required tax rider tariff from the Iowa Utilities Board.
The amount of the franchise fee shall be shown separately on the utility bill to each customer.
The company shall remit franchise fee receipts to the City no more frequently than on or before the last business day of the month following each calendar year quarter.
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.
The City shall be solely responsible for the proper use of any amounts collected as franchise fees, and shall only use such fees as collected for a purpose as allowed by applicable law.
The City shall give the company reasonable, not less than six months, notice prior to the request to adjust the franchise fee percentage to be collected pursuant to this ordinance. The City agrees not to modify the amount more than one time in a two-year period.
The costs of franchise fee administration are not charged directly to the City. The City and company agree that the company may charge an administration fee as in an amount not to exceed the limitation provided for in state statute.
The City Clerk shall provide written notification by certified mail to the company's Real Estate and Right-of-Way Department of any final order authorizing annexation or other change in corporate limits of the City, and the company shall apply the franchise fee to its customers affected by the annexation or change in corporate limits, commencing on an agreed date, which is not less than 90 days from the receipt of the certified notice. The City shall include with the notice a list of any utility accounts exempt from the franchise fee within the annexed area.
The term of the franchise granted by this ordinance and the rights granted thereunder shall continue for the period of 25 years from and after written acceptance by the company, subject to a right of cancellation at the end of the 20th year. The acceptance shall be filed with the City Clerk within 90 days from passage of this ordinance.
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.
The expense of the publication of this ordinance shall be paid by the company.
This ordinance sets forth and constitutes the entire agreement between the company and the City with respect to the rights contained herein, and may not be supplemented, superseded, modified or otherwise amended without the written approval and acceptance of the company. Notwithstanding the foregoing, in no event shall the City enact or maintain any ordinance or place any limitations, either operationally or through the assessment of fees other than those approved and accepted by the company within this ordinance, that create additional burdens upon the company, or which delay utility operations.