There is hereby granted to ITC Midwest, LLC, a wholly owned subsidiary of ITC Holdings Corp., hereinafter referred to as "the company," its successors and assigns, the right and nonexclusive franchise to acquire, construct, reconstruct, erect, maintain, operate and remove in the City a transmission system for electric power and the right to erect and maintain the necessary poles, lines, wires, conduits and other appliances, equipment and substations for the transmission of electric current and telecommunications (collectively, the "facilities") along, under and upon the streets, avenues, alleys and public places in the City; also the right to erect and maintain upon the streets, avenues, alleys and public places transmission lines through the City for the period of 25 years; also the right of eminent domain as provided in § 364.2 of the Code of Iowa.
[Adopted by Ord. No. 22-06 (Ch. 111A of the 2000 Code)]
The facilities shall be placed and maintained so as not to unnecessarily interfere with the travel on the streets, avenues, alleys and public places in the 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, and the company, its successors and assigns shall hold the City free and harmless from all damages arising from the negligent acts or omissions of the company in the erection or maintenance of the transmission system. All construction, reconstruction, maintenance, operation and removal of the transmission system and facilities shall be done in accordance with all applicable state, federal and local laws, and the company shall obtain all necessary City and other applicable permits associated therewith.
In making any excavations in any street, alley or public place, the company, its successors and assigns shall: i) protect the site while work is in progress by guards, barriers or signals, ii) not unnecessarily obstruct the use of the streets, and iii) backfill all openings in such a manner as to prevent settling or depressions in surface, pavement or sidewalk of such excavations with same materials, restoring the condition as nearly as commercially practicable. 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 commercially reasonable amount of time following completion of the work, and shall not cause any undue delay.
Except as provided hereinbelow, the company shall, at its cost and expense, locate and relocate its facilities in, on or over 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 orders or requests the company to relocate its facilities for the primary benefit of a commercial or private project, 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 facilities. The City shall consider reasonable alternatives in designing its public improvement 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 alternate location for the company's facilities. The City shall give the company reasonable advance written notice to vacate a public right-of-way. Vacating a public right-of-way shall not deprive the company of its right to operate and maintain existing facilities until the reasonable costs of relocating the same are paid to the company. In the event of a relocation, all facilities and/or equipment shall be relocated or replaced in a manner and to locations consistent with and in accordance with all chapters of the Marion City Code of Ordinances, all applicable state and local codes and ordinances, and any policies or standards adopted by the City of Marion.
The system authorized by this article shall be kept in an operable condition consistent with good utility practice and the reliability standards of the North American Electric Reliability Council (NERC).
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 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. Notwithstanding the aforementioned company review, the City will take and exercise good faith efforts as a matter of public trust not to disclose critical infrastructure information in violation of exemptions at law.
Company operations staff will, at the request of the City, attend an annual meeting with City public services 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 remove, cut, trim, destroy or otherwise control any tree, shrub, brush, bush or any parts thereof located within or extending into any street, alley, right-of-way or public grounds to maintain electric reliability, safety, to restore utility service and to prevent limbs, branches or trunks from interfering with the facilities. The foregoing vegetation management shall be completed in accordance with the most current nationally accepted safety and utility industry standards, as revised and updated from time to time, as well as all applicable codes and standards referenced herein.
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, customer outages or interruptions on the bulk electric system due to no fault of the company or interruptions necessary to properly service the company's equipment, and in such event service shall be resumed as quickly as is commercially practicable.
The City may request estimates for the undergrounding of 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 § 355-67. 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. Upon 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 franchise granted by this ordinance shall not be exclusive.
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 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.
The expense of the publication of this ordinance shall be paid by the company.
The City agrees it will not permit or grant approval for any development, construction or land uses in the City that would result in or cause the company's facilities to violate setback requirements, safety requirements or any other provision of the National Electrical Safety Code or any law, regulation or ordinance of the State of Iowa, Linn County or the City of Marion.
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.