CHAPTER 113

ELECTRIC TRANSMISSION FRANCHISE

113.01  Grant of Franchise

113.10  Indemnification

113.02  Restrictions and Limitations

113.11  Information Provided to City

113.03  Placement of Equipment

113.12  Standards of Operation

113.04  Trimming of Trees

113.13  Franchise Fee

113.05  Relocation of Equipment

113.14  Franchise Fee Requirement Retracted

113.06  Excavations

113.15  Management Fees

113.07  Vacated Property

113.16  Breach of Agreement

113.08  Exception

113.17  Assignment

113.09  Reimbursement by Developer

 

113.01    GRANT OF FRANCHISE.  There is hereby granted to Rock Island Clean Line LLC, a Delaware Limited Liability Company, hereinafter called the “Company,” and its successors and assigns, the right and franchise to acquire, construct, erect, maintain and operate in the City an approximate 600 kV High Voltage Transmission Line for the transmission of electric energy along, under, over and upon the City streets, avenues, alleys and public places.  For the term of the franchise, the Company is granted the right of eminent domain, the exercise of which is subject to Code of Iowa Chapters 6A and 68.  Once granted by the City and accepted by the Company the franchise shall be effective for a 25-year period from and after the Company completes construction of the facilities comprising the Transmission Line as described in Section 113.03 hereof.

113.02    RESTRICTIONS AND LIMITATIONS.  The rights and privileges hereby granted are subject to the restrictions and limitations of Chapter 364 of the Code of Iowa.

113.03    PLACEMENT OF EQUIPMENT.  The Company shall have the right to erect all transmission line or lines together with poles, towers and structures, as Company may from time to time deem expedient or advisable, with such wires and cables as Company shall from time to time suspend therefrom, consisting of all foundations, footings, crossarms, wires, poles, towers, attachments, anchors, ground connections, or other equipment, accessories and appurtenances, as the Company may deem necessary or desirable in connection therewith, but all said conduits and poles shall be placed as not to unreasonably interfere with the construction of any water pipes, drain or sewer, or the flow of water there from, which have been or may hereafter be located by authority of the City.

113.04    TRIMMING OF TREES.  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 done in accordance with current nationally accepted safety and utility industry standards and Federal and State law, rules and regulations.

113.05    RELOCATION OF EQUIPMENT.  The Company shall, excluding facilities located in private easements (whether titled in Company exclusively or in Company and other entities), in accordance with Iowa law including any transmission franchise granted and made effective by the Iowa Utilities Board as may subsequently be amended (“State Franchise”), 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 reasonably require for the purposes of facilitating the construction, reconstruction, maintenance or repair of the street or alley of such street or alley.  The City and the Company shall work together to develop a suitable alternative route or construction method so as to eliminate or minimize the cost and expense to the Company of relocation of Company installations.  The City shall be responsible for surveying and staking the right-of-way for City projects that require the Company to relocate Company facilities.  If requested, the City shall provide, at no cost to the Company, copies of the relocation plan and profile and cross section drawings.  If tree removals must be completed by the City as part of the City’s project and are necessary, whether or not utility facilities must be relocated, the City at its own cost shall be responsible for said removals.  If the timing of the tree removals does not coincide with the Company’s facility relocation schedule and the Company must remove trees that are included in the City’s portion of the project, the City shall either remove the trees or reimburse the Company for the expenses incurred to remove said trees.  If project funds from a source other than the City are available to pay for the relocation of utility facilities, the City shall attempt to secure said funds and provide them to the Company to compensate the Company for the costs of relocation. 

113.06    EXCAVATIONS.  In making excavations in any streets, avenues, alleys and public places for the installation, maintenance or repair of conductor, conduits or the erection of poles and wires or other appliances, the Company shall not unreasonably obstruct the use of the streets, and shall replace the surface, restoring the condition as existed prior to the Company excavation.  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 or to a condition required for the City to comply with City, State or Federal rules, regulations or law.  The Company agrees that any replacement of road surface shall conform to current City code regarding its depth and composition.

113.07    VACATED PROPERTY.  Vacating a street, avenue, alley, public ground or public right-of-way shall not deprive the Company of its right to operate and maintain existing facilities on, below, above, or beneath the vacated property.  Prior to the City abandoning or vacating any street, avenue, alley, or public ground where the Company has electric facilities in the vicinity, the City shall provide Company with not less than 60 days’ advance notice of the City’s proposed action and, upon request, grant the Company a utility easement covering existing and future facilities and activities.  If the City fails to grant the Company a utility easement for said facilities prior to abandoning or vacating a street, avenue, alley or public ground, the City shall at its cost and expense obtain easements for existing Company facilities.

113.08    EXCEPTION.  The Company shall not be required to relocate, at its cost and expense, Company facilities in the public right-of-way that have been relocated at Company expense at the direction of the City in the previous ten years.

113.09    REIMBURSEMENT BY DEVELOPER.  Pursuant to relocation of Company facilities as may be required by Sections 113.03, 113.05, 113.06, 113.07 and 113.08, if the City orders or requests the Company to relocate its existing facilities or equipment in order to facilitate the project of a commercial or private developer or other non-public entity, the City shall reimburse, or the City shall require the developer or non-public entity to reimburse, the Company for the cost of such relocation as a precondition to relocation of its existing facilities or equipment.  The Company shall not be required to relocate in order to facilitate such private project at its expense.

113.10    INDEMNIFICATION.  The Company shall indemnify and save harmless the City from any and all claims, suits, losses, damages, costs or expenses, on account of injury or damage to any person or property, to the extent caused or occasioned by the negligence of the Company, its officers, employees or agents in the construction, reconstruction, excavation, operation or maintenance of the electric facilities authorized by the franchise; provided, however, the Company shall not be obligated to defend, indemnify and save harmless the City for any costs or damages to the extent arising from the negligence of the City, its officers, employees or agents.

113.11    INFORMATION PROVIDED TO CITY.  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 City right-of-way.  The Company and City recognize that the information provided will, under current Iowa law, constitute public records, but that nonetheless, some information provided will be confidential under State or Federal law or both.  Therefore, the City shall not release any information with respect to the location or type of equipment which the Company owns or controls in the right-of-way which may constitute a trade secret or which may otherwise be protected from public disclosure by State or Federal law.  Furthermore, the City agrees that no documents, maps or information provided to the City by the Company shall be made available to the public or other entities if such documents or information are 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.

113.12    STANDARDS OF OPERATION.  The Company shall construct, operate and maintain its facilities 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 transmit electric energy in the quantity and quality consistent with and in accordance with the applicable regulations of the Iowa Utilities Board and/or the Federal Energy Regulatory Commission or any other agency, Federal or State, having jurisdiction over the transmission of electric energy.

113.13    FRANCHISE FEE.  There is hereby imposed upon and shall be collected from the Company a franchise fee in the amount of $500.00 annually, commencing on January 1 following completion of construction by the Company, and which amount shall be adjusted upward by 2% annually commencing on January 1 of the second year following such completion of construction.  In the event the Company is required to provide data or information in defense of the City’s imposition of franchise fees the City shall reimburse the Company for the expenses incurred by the Company to provide such data or information.  The obligation to remit the fee imposed by this chapter is modified or repealed if:

1.                  Any other person is authorized to construct any facilities for the transmission of electric energy within the City and the City imposes a franchise fee or its lawful equivalent at zero or a lesser rate than provided in this ordinance, in which case the obligation of Company to remit the franchise fee shall be modified to zero or the lesser rate;

2.                  The City adds additional territory by annexation or consolidation and is unable or unwilling to impose the franchise fee upon all persons owning and operating facilities for the transmission of electric energy within the additional territory, in which case the franchise fee imposed on the Company shall be zero or equal to that of the lowest fee being paid by any other such persons of electricity within the City; or

3.                  Legislation is enacted by the Iowa General Assembly or the Supreme Court of Iowa issues a final ruling regarding franchise fees or the Iowa Utilities Board issues a final non-appealable order (collectively “final franchise fee action”) that modifies, but does not repeal, the ability of the City to impose a franchise fee.  Within sixty (60) days of final franchise fee action, the City shall notify Company and the parties shall meet to determine whether this ordinance can be revised, and, if so, how to revise the franchise fee on a continuing basis to meet revised legal requirements.  After final franchise fee action and until passage by the City of revisions to the franchise fee ordinance, Company may temporarily discontinue remittance of the franchise fee if in its sole opinion it believes it is required to do so in order to comply with revised legal requirements.

113.14    FRANCHISE FEE REQUIREMENT RETRACTED.  The other provisions of this chapter to the contrary notwithstanding, the Company shall be completely relieved of its obligation to collect and remit to the City the franchise fee, effective as of the date specified below with no liability therefor under each of any of the following circumstances as determined to exist in the sole discretion of Company:

1.                  Any of the imposition or remittance of a franchise fee is ruled to be unlawful by the Supreme Court of Iowa, effective as of the date of such ruling or as may be specified by that Court;

2.                  The Iowa General Assembly enacts legislation making imposition or remittance of a franchise fee unlawful, effective as of the date lawfully specified by the General Assembly; or

3.                  The Iowa Utilities Board, or its successor agency, denies the Company the right to remit a franchise fee provided such denial is affirmed by the Supreme Court of Iowa, effective as of the date of the final agency order from which the appeal is taken.

113.15    MANAGEMENT FEES.  The City shall not, pursuant to Section 480A.6 of the Code of Iowa, impose or charge right-of-way management fees upon the Company or fees for permits for Company construction, maintenance, repairs, excavation, pavement cutting or inspections of Company work sites and projects or related matters.

113.16    BREACH OF AGREEMENT.  Upon the occurrence of a material breach, the non-breaching party shall provide the breaching party with notification by certified mail specifying the alleged breach.  The breaching party shall have 90 days to cure the breach, unless it notifies the non-breaching party and the parties agree upon a longer period for cure.   If the breach is not cured within the cure period, the non-breaching party may terminate the franchise.

113.17    ASSIGNMENT.  The franchise may be assigned by either the City or the Company upon the written consent of the other party, which consent may not be unreasonably withheld; provided, however, Company may mortgage or assign the franchise without consent in conjunction with securing financing.  The franchise shall be binding and inure to the benefit of the permitted assigns and successors of the City and the Company.


EDITOR’S NOTE:  Ordinance No. 302, adopting an electric transmission line franchise for the City, was passed and adopted on August 9, 2012.