APP. B.—ITC MIDWEST LLC. FRANCHISE
ORDINANCE NO. 024-10
An Ordinance granting to ITC MIDWEST LLC, a wholly owned subsidiary of ITC HOLDINGS CORP., ("Company"), its successors and assigns, the right and franchise to construct, reconstruct, repair, maintain and operate in the City of Cedar Rapids, Linn County, Iowa, systems for the transmission of electric light and power and the right to erect and maintain the necessary poles, lines, wires, conduits and other appliances for the transmission of electric current along, under and upon the streets, avenues, alleys and public ways in the City of Cedar Rapids, Linn County, Iowa; also the right to erect and maintain upon the streets, avenues, alleys and public ways, transmission lines through the said City of Cedar Rapids, Linn County, Iowa, to interconnect generation, transmission and distribution companies both inside and outside of said City for the period of twenty-five (25) years, subject to a right of cancellation at the end of the tenth (10th), fifteenth (15th), and the twentieth (20th) year following the "Anniversary Date", and granting to said Company the right of eminent domain.
BE IT ORDAINED BY THE City Council of the City of Cedar Rapids, Linn County, Iowa:
Section 1. Introduction
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 franchise to construct, reconstruct, repair, maintain and operate in the City of Cedar Rapids, Linn County, Iowa, systems for the transmission of electric light and power, and the right to construct, reconstruct, repair, maintain and operate the necessary poles, lines, wires, conduits and other appliances for the transmission of electric current along, under and upon the streets, avenues, alleys and public ways in the City of Cedar Rapids, Linn County, Iowa; also the right to erect and maintain upon the streets, avenues, alleys and public ways, transmission lines through the said City of Cedar Rapids, Linn County, Iowa, to interconnect generation, transmission and distribution companies both inside and outside of said City for the period of twenty-five (25) years, after which such period the franchise shall expire. However, the City of Cedar Rapids shall retain the right to terminate this right and franchise effective at the end of the tenth (10th), fifteenth (15th), and twentieth (20th) year anniversary of the Anniversary Date as defined within. In order to exercise this right to terminate the right and franchise granted to the Company, the City of Cedar Rapids must give written notice to the Company no later than six (6) months prior to expiration of the respective Anniversary Date. The Anniversary Date shall be the date this franchise is published following signature by the Mayor. Additionally, the Company is granted the right of eminent domain for the purposes set forth herein, or to access its current or future facilities, as provided in Section 364.2 of the Code of Iowa, as amended, or pursuant to any other statutory authority granted through the City during the term of this franchise. Notwithstanding the foregoing, and limited to the exercise of eminent domain related to the construction of new distribution facilities in the public right of way, Company agrees to provide thirty (30) days written notice to the City prior to exercising such right.
Section 2. Indemnification
The Company shall indemnify, defend and hold City harmless from and against any and all claims, demands, losses, damages, cost and expenses (including, but not limited to, court costs, fines, penalties and reasonable attorneys' fees, but excluding consequential or indirect damages), judgments, liabilities and causes of action of any nature whatsoever resulting from or relating to its negligent acts or omissions in the use or occupancy of the streets, avenues, alleys and public ways in the City, a default of this franchise, or arising in any manner out of the negligent acts or omissions of its agents, employees, or contractors in connection with same, or with respect to the violation of any laws, including without limitation, any environmental laws. IPL shall indemnify and defend City for, from and against any and all mechanics' liens and other liens and encumbrances filed by any person claiming by, through or under IPL and against all costs, expenses, losses and liabilities (including reasonable attorneys' fees) incurred by City in connection with any such lien or encumbrance or any action or proceeding brought thereon.
The Company shall maintain commercial general liability insurance coverage, or its equivalent, throughout the term of this franchise, so as to protect and indemnify City from suits or claims arising out of Company's negligent acts subject to policy terms and conditions. Such insurance shall be comprehensive in nature, including, but not limited to, contractual liability. In addition, such insurance shall contain limits not less than $1,000,000 combined single-limit person injury and property damage. Company's failure to meet this insurance requirement shall not relieve Company of its responsibilities under this franchise. Upon proof of financial responsibility to the reasonable satisfaction of City, Company may be allowed self-insure the coverages indicated herein resulting from the negligent acts or omissions of Company, Company's agents or employees. Company shall provide City with certificates of insurance or letter of self-insurance upon request.
The requirements of indemnification shall not be a waiver of any right that the City would have to assert defenses on its own behalf under state or federal law. The Company's indemnification obligations under this franchise shall survive the expiration, cancellation, or termination of this franchise in accordance with applicable statutes of limitation in force within the state of Iowa.
Section 3. Relocation
The Company shall, 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 orders or requests the Company to relocate its existing facilities or equipment as the result of the initial request of a commercial or private developer or other non-public 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 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.
Section 4. System Plans and Maps
Company operations staff and City Public Works staff shall maintain a Memo of Understanding that outlines a process of self-permitting for excavation work performed in the City's right-of-way. Mapping information provided on a project-specific basis as part of the self-permitting process will be used solely and exclusively by the City in administering the use and occupancy of the public right-of-way within the City and shall not be provided to or relied on by any person for any other purpose. At the request of the City, mapping information will be reviewed with the City staff. All reviews will be in compliance with the Federal Energy Regulatory Commission's regulations or the regulations of other agencies with authority over the review and dissemination of information related to utility infrastructure, and infrastructure security. Prior to any excavating in the rights-of-way, both parties shall follow the procedures set forth in Iowa Code Chapter 480 or an entity with a similar function utilized by both the City and the Company, currently the Iowa One-Call System.
Section 5. Annual Planning Meeting
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.
Section 6. Modern System
The system authorized by this Ordinance shall be modern and up-to-date and shall be of sufficient capacity to supply all reasonable demands of said City and its inhabitants thereof and shall be kept in a modern and up-to-date condition. The Company will maintain compliance with IUB regulatory standards for reliability.
Section 7. Pruning
To promote public safety in proximity to its transmission line facilities and to maintain electric reliability, the Company is authorized and empowered to prune or remove at Company expense any trees or shrubs or parts thereto extending into any street, alley, right-of-way or public grounds. The pruning shall be completed in accordance with the then-current nationally accepted safety and utility industry standards, as revised and updated from time to time.
Section 8. Undergrounding
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 Section 6. 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 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 City's payment for the incremental cost of undergrounding, the Company will install the underground facilities. The Company reserves the right to bill City 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 shall cover all costs related to this work. If undergrounding of transmission lines requires entities interconnecting with the Company to make adjustments to their electrical systems, the City bears the responsibility of communication with those entities and, if it chooses, the cost of converting their facilities from overhead to underground. The Company reserves the right to review all of the City's communications with the affected entities.
Section 9. Non-exclusivity
The franchise granted by this Ordinance shall not be exclusive.
Section 10. Continuous Service
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.
Section 11. City Use of Company Facilities
The Company, upon request of the City, and without cost to it, shall permit its poles, conduits and other transmission 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 transmission system serving the electric customers, without disrupting Company operations.
Section 12. Emergency Training, Participation and Communication
Each year, the Company will, at the request of the City, participate in one emergency training event and will participate in Linn County Emergency Operations Center activation if requested by the City, and if deemed appropriate by the Company. The Company will maintain a direct phone connection with Cedar Rapids Police Dispatch or other emergency contact as determined by the City for emergency communications.
Section 13. Energy Efficiency and Renewable Energy
From time to time and as such materials are published or otherwise produced by the Company, the company will provide to the City energy efficiency materials and rebate forms for display in the building permit department and other City departments. 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 to the extent such programs are offered by the Company.
Section 14. Future Agreements
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.
Section 15. Publication Expenses
The expense of the publication of this Ordinance shall be paid by the Company.
Section 16. Repeal of Conflicting Ordinances
All Ordinances, or parts of Ordinances, insofar as they are in direct conflict herewith, are hereby repealed.
Section 17. Compliance with City Ordinances
The Company shall at all times during the term of this franchise ordinance conform with, submit to, and carry out the provisions of any and all valid ordinances existing or as hereafter lawfully enacted relating the City's exercise of its police powers.
Section 18. Closing
This franchise ordinance sets forth and constitutes the entire agreement between the Company and the City of Cedar Rapids with respect to the rights contained herein, and may not be superseded, modified or otherwise amended without the approval and acceptance of the Company. Upon the effective date, this franchise ordinance shall supersede, abrogate and repeal the prior electric franchise (Ordinance 27-84), between the Company's predecessor in interest and the City of Cedar Rapids. Except as set forth in Section 28, in no event shall the City of Cedar Rapids enact any ordinance or place any limitations, either operationally or through the assessment of fees, that create additional burdens upon the Company, or which delay utility operations with respect to the rights contained herein.
Section 19. Wilson Avenue SW
The Company wishes to place three power poles and transmission lines in the right-of-way of Wilson Avenue between, in pertinent part, 18 th Street SW in Cedar Rapids and 14 th Street SW in Cedar Rapids as depicted on Exhibit A attached hereto. At the same time, the City wishes to install city sidewalk adjacent to and to the south of Wilson Avenue SW in this same location. Placement of the poles and transmission lines by the Company will leave insufficient room for the installation of city sidewalk in the existing City right-of-way. The City intends, therefore, to acquire additional right-of-way from the adjacent property owners to permit the installation of city sidewalk using the City's standard statutory acquisition authority and procedures including appraisals of the property to be purchased. The Company agrees to reimburse the City for right-of-way acquisition costs resulting from the City's standard statutory acquisition procedures. Further, the Company acknowledges that once the Company's poles and transmission lines are placed in the right-of-way of Wilson Avenue SW at this location, those poles and transmission lines will otherwise be subject to the terms and conditions of this Ordinance.
Introduced this 25 th day of May, 2010.
Passed this 8th day of June, 2010.
Ron J. Corbett , Mayor
Attest:
Ann Ollinger , City Clerk
(024-10)