[HISTORY: Adopted by the City Council of the City of Marion
by Ord. No. 19-07 (Ch. 110 of the
2000 Code). Amendments noted where applicable.]
There is hereby granted to MidAmerican Energy Company, an Iowa
corporation, (hereinafter called "company,)" and to its successors
and assigns the right and nonexclusive franchise to acquire, construct,
erect, maintain and operate in the City of Marion, Iowa, (hereinafter
called the "City,)" a gas distribution system, to furnish natural
gas along, under and upon the rights-of-way, streets, avenues, alleys
and public places to serve customers within and without the City and
to furnish and sell natural gas to the City and its inhabitants. For
the term of this franchise, the company is granted the right of eminent
domain, the exercise of which is subject to City Council approval
upon application by the company. This franchise shall be effective
for 20 years from and after written acceptance by the company, subject
to a right of renegotiation at the end of the 10th and 15th years.
The rights and privileges hereby granted are subject to the
restrictions and limitations of Chapter 364 of the Code of Iowa 2019,
or as subsequently amended or changed.
Company shall have the right to excavate in any public street
for the purpose of laying, relaying, repairing or extending gas pipes,
mains, conduits, and other facilities provided that the same shall
be so placed as not to unreasonably interfere with any above or below-ground
utility services or facilities which have been or may hereafter be
located by or under authority of the City.
In making excavations in any streets, avenues, alleys and public
places for the installation of gas pipes, conduits or apparatus, the
company shall protect the site while work is in progress by guards,
barriers, or signals, shall not unreasonably obstruct the use of the
streets, and shall replace the surface, restoring it to the condition
as existed immediately prior to excavation. Company agrees any replacement
of road surface shall conform to current City code regarding its depth
and composition. The company shall not be required to restore or modify
public rights-of-way, sidewalks or other areas in or adjacent to the
company project to a condition superior to its immediate previously
existing condition or to a condition exceeding its previously existing
condition except to the extent any alterations are required for the
City to comply with City, state or federal rules, regulations or laws.
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 City may at its discretion
assign personnel for inspection of excavation and related work being
performed by the company.
A. Whenever the City shall pave or
repave any street or shall change the grade line of any street or
public place or shall construct or reconstruct any conduit, water
main service or water connection, sewer or other municipal public
works or utility, it shall be the duty of the company, when so ordered
by the City, to change its mains, services and other property in the
streets or other public places at its own expense so as to conform
to the established grade or line of such street or public place and
so as not to interfere with the conduits, sewers, municipal public
works or utilities, and other mains so constructed or reconstructed.
However, the company shall not be required to relocate pipes, mains
and appurtenances when the street, alley or public grounds, in which
they are located, is vacated for the convenience of abutting property
owners and not as an incident to a public improvement, unless the
reasonable cost of such relocation and the loss and expense resulting
therefrom is first paid to the company by the abutting property owners.
In the case of public improvements, including, but not limited to,
urban renewal projects, the City may require the company to relocate
pipes, mains, services and appurtenances in the streets at company's
expense.
B. The City may at its discretion
assign personnel for inspection of excavation and related work being
performed by the company. Should the company fail or refuse to do
and perform the things provided in this chapter, the City may, after
reasonable notice, perform the work and charge the reasonable and
necessary expense thereof to the company and the company shall promptly
pay said charges.
C. In the event the company is required
to move, remove or modify the placement of any of its facilities 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 City staff, design such changes to limit the need for the relocation
of company facilities.
D. 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.
E. 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 nonpublic development, the company
shall receive payment for the cost of such relocation as a precondition
to relocating its existing facilities or equipment.
F. 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.
G. In the event of a relocation,
all facilities and/or equipment shall be relocated or replaced in
a manner and to locations consistent with 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 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 cost of relocating the same are paid
to the company, and the City shall utilize reasonable efforts to assist
company in securing an easement or other continued rights of record
to continue to operate and maintain its facilities upon such relocation.
A. The City reserves to itself the
power to impose reasonable regulations on the company's use of streets.
The company will notify the City and obtain a permit before performing
work in the right-of-way.
B. In the use of right-of-way under
this franchise, the company shall be subject to all rules, regulations,
policies, resolutions and ordinances now or hereafter adopted or promulgated
by the City in the reasonable exercise of its police power. In addition,
the company shall be subject to all rules, regulations, policies,
resolutions, and ordinances now or hereafter adopted or promulgated
by the City relating to permits, sidewalk and pavement cuts, utility
location, construction coordination, screening, and other requirements
on the use of the right-of-way; provided, however, that nothing contained
herein shall constitute a waiver of or be construed as waiving the
right of the company to oppose, challenge, or seek judicial review
of, in such manner as is now or may hereafter be provided by law,
any such rules, regulation, policy, resolution, and ordinance proposed,
adopted, or promulgated by the City. Further, the company shall comply
with all federal, state and local laws, ordinances and policies relating
to the location of gas service lines, facilities and other improvements.
C. The company understands that for
aspects of aboveground facilities that are not related directly to
the generation and distribution of natural gas, there may be zoning
or other ordinances and standards which apply to all developers within
an area of the City, including requirements related to design or other
aesthetics, public safety, or coordination with public improvements.
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.
D. The City encourages the conservation
of right-of-way by the sharing of space by all utilities. Notwithstanding
provision of this franchise prohibiting third party use, to the extent
required by federal or state law, the company will permit any other
franchised entity by appropriate contract or agreement negotiated
by the parties to use any and all facilities constructed or erected
by the company.
[Amended 5-21-2018 by Ord. No. 17-18]
A. 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").
B. The company and City recognize that the information provided under Subsection
A above may in whole or part be considered a confidential record under state or federal law or both. 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. In the event the company fails to take any such action within 10 business days after receipt of such notice, the City may disclose the documents or information without any liability of any kind to the company.
Company operations staff will, at the request of the City, attend
an annual meeting with City 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 shall extend its mains and pipes and operate, and
maintain the system in accordance with the applicable regulations
of the Iowa Utilities Board or its successors and Iowa law.
During the term of this franchise, the company shall furnish
natural gas in the quantity and quality consistent and in accordance
with the applicable regulations of the Iowa Utilities Board and the
company's tariff made effective by the Iowa Utilities Board or its
successors and Iowa law.
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 franchise granted by this ordinance shall not be exclusive.
[Amended 5-18-2023 by Res. No. 23-10]
There is hereby imposed a franchise fee of 5% upon the gross
revenue generated from sales of natural gas 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 within
90 days of final approval of the City Council of Marion and within
statutory requirements.
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 any officer of the company or designee 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.
In the event that the company has or acquires any interest in
real estate within the City or within two miles of the corporate boundaries
at that time, for which the company intends to sell or transfer to
a third party, not to include any successors in interest, subsidiaries,
or future entities of the company, the company shall provide the City
with notice of said transaction. The City shall have the right for
90 days to enter into a contract for the sale or transfer of said
property under the same terms contained in the proposed contract with
the third party. The failure of the City to respond within 90 days
shall be deemed as a refusal by the City, unless the parties otherwise
agree.
The term of the franchise granted by this ordinance and the
rights granted thereunder shall continue for the period of 20 years
from and after written acceptance by the company, subject to a right
of renegotiation at the end of the 10th and 15th years. The acceptance
shall be filed with the City Clerk within 30 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.