20041228_1040.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER SMITH
CO MMISSI 0 NER HANSEN
COMMISSION SECRETARY
LEGAL
WORKING FILE
FROM:KEITH HESSING
DATE:DECEMBER 23, 2004
RE:APPROVAL OF IDAHO POWER TARIFF ADVICE NO. 04-07;
MUNICIPAL FRANCHISE FEE FOR THE CITY OF GOODING
On December 16, 2004, Idaho Power Company filed Tariff Advice No. 04-07 which
added a 1 % Franchise Fee for the City of Gooding to Second Revised Sheet No. 95-1 of its
electric tariff. The Company requests that the fee become effective January 27 2005. Sheet No.
95-1 lists municipal franchise fees that Idaho Power Company pays municipalities for the use of
city street rights-of-way and easements to locate facilities for the purpose of providing service to
customers. Commission acceptance of Second Revised Sheet No. 95-1 allows Idaho Power to
recover the cost of the franchise fees from its electric customers who live within the
municipality. This method of cost recovery has long been the policy of the Public Utilities
Commission. The Gooding City Ordinance establishing the franchise fee is attached.
I have reviewed Idaho Power s Application and recommend that Second Revised Sheet
No. 95-1 be accepted for filing with an effective date of January 27, 2005.
i:udmemoslipctaO407
DECISION MEMORANDUM DECEMBER 23 2004
ORDINANCE NO.638
AN ORDINANCE IN ACCORDANCE WITH IDAHO CODE 50-328, 50-329 AND 50-329A
GRANTING A FRANCHISE TO IDAHO POWER COMPANY, A CORPORATION, AND TO
ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, MAINTAIN AND OPERATE IN
AND UPON THE PRESENT AND FUTURE STREETS , HIGHWAYS AND OTHER PUBLIC
PLACES WITHIN THE CORPORATE LIMITS OF THE CITY OF GOODING, IDAHO
ELECTRIC UTILITY PROPERTY AND FACILITIES FOR SUPPLYING ELECTRICITY
AND ELECTRIC SERVICE TO THE CITY. THE INHABITANTS THEREOF, AND OTHERS
FOR A TERM OF 10 YEARS INCLUDING THE NONEXCLUSIVE RIGHT TO
PHYSICALLY LOCATE AND MAINTAIN TELEPHONE, CABLE, FillER OPTICS OR
OTHER COMMUNICATIONS FACILITIES; SETTING FORTH AN AGREEMENT NOT TO
COMPETE RESERVING POWER OF EMINENT DOMAIN; PROVIDING FOR THE
PAYMENT OF FRANCHISE FEES; AND SPECIFYING OTHER LIMITATIONS, TERMS
AND CONDITIONS GOVERNING THE EXERCISE OF SAID FRANCHISE.
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF GOODING
IDAHO THAT;
SECTION 1. The City of Gooding, Idaho (hereinafter called the "City ) hereby grants
to IDAHO POWER COMPANY, a corporation, and to its successors and assigns (hereinafter
called the "Grantee ) the right (subject to the rights of the City set forth in Section 14 hereof),
privilege and franchise for a period of ten (10) years from and after September 1, 2004
however, with the right to amend by mutual agreement in accordance with Section 15, to
construct, maintain and operate in and upon the present and future streets, alleys, highways and
other public places within the corporate limits of the City, electric utility property and facilities
for supplYing electricity to the City, and the inhabitants thereof, and to persons and corporations
beyond the limits of the City, including the nonexclusive right to physically locate and maintain
telephone, cable. fiber optics or other communications facilities of the Grantee or other parties
(provided, that Grantee shall comply with the City s requirements for cable system franchises)
all subject to the tenus and conditions hereinafter specified. In the case of annexation of
property to the corporate limit, such area will be considered under this agreement, upon effective
date of the annexation, subject to Section 9 hereof. All such electric utility property and facilities
now maintained by the Grantee within the streets, alleys, highways and other public places
within the corporate limits of the City shall be deemed covered by this ordinance as provided
herein.
SECTION 2. All of the Grantee s electric property and facilities in and upon the present
and future streets, alleys, highways and public places within the corporate limits of the City shall
be constructed and at all times maintained in good order and condition and in accordance with
standard engineering practices and all applicable safety cout:s and lawful govenunental
regulations, including all applicable state and federal regulations and all construction standards
presently in effect by the Idaho Public Utilities Commission or adopted by that Commission
during the tenn of this franchise agreement.
SECTION 3. Upon request of the City, the Grantee shall relocate its facilities
necessary within the present and future streets, alleys, highways and other public places owned
by the City. The City shall have no responsibility for the costs of such relocations. The Grantee
shall bear the cost of relocating its facilities at the City s request, unless the facilities are to be
relocated for the benefit of a third party, in which case the third party shall pay the costs of
relocation. In the event federal, state or other funds are available in whole or in part for utility
relocating purposes, the City shall apply for such funds and the Grantee will be reimbursed to the
extent any such funds are actually obtained.
SECTION 4. It shall be lawful for the Grantee to make all needful or convenient
excavations and/or installations in any of the present and future streets, alleys, highways and
other public places within the corporate limits of the City for the purpose of erecting and
maintaining the posts, poles, towers, or other supports for its wires or for the purpose of laying,
maintaining and operating conduits, vaults and wires and other conductors underground for the
purpose aforesaid, or to rcpair and improve such electrie power and light system and to extend
the same; provided that when the Grantee or any person or corporation under the authority of this
franchise, shall disturb any of said streets, alleys, highways or other public places for the
purposes aforesaid, he, it or lht::y shall restore the SaJ.lle to good ordcr and condition as soon as
practicable and without unnecessary delay and failing to do so after five days' notice from the
City, or its duly authorized officer or officers, then the City may place said street, alley, highway
or public place in such condition at the cost and expense of the Grantee, and said Grantee will
forthwith pay the full cost and expense thereof upon demand of the City. All facilities
constructed under this ordinance shall be placed and maintained at such places and positions
or upon such public ways and public places as shall not interfere with the passage of traffic and
shall confonn to all applicable laws, rules and regulations.
SECTION 5. The City shall have the right and privilege to string and maintain wires for
its internal communications for its fire, police, airport and other services upon the poles and
other facilities erected and maintained by the Grantee hereunder, subject to the Rules and
Regulations of the Idaho Public Utilities Commission. The City shall string, maintain and
operate such wires at its own expense, risk and responsibility, and in accordance with all legal
requirements and good engineering practices and in such manner as not to impose any additional
expense upon Grantee of its said poles and facilities. Any such wires of the City shall be subj ect
to interference by the Grantee only when necessary in the maintenance, operation or repair of the
Grantee s own fixtures, wires, facilities and appurtenances.
SECTION 6. The Grantee shall at all times indemnify and hold the City, its officers
employees and agt::Ills, harmless frOlll any and all expenses or liability arising from or by reason
of any negligent act or omission of the Grantee, its representatives or employees, in the
construction, operation or maintenance of any of the Grantee s electric utility property or
facilities.
SECTION 7. Upon acceptance of this franchise by Grantee and before Grantee shall
have any rights hereunder, Grantee shall file with the City Clerk a Certificate of Insurance
evidencing General Liability Insurance which covers claims for Bodily Injury, Property Damage
and Personal Injury. Such insurance shall have minimum limits of $1 000,000 per occurrence.
The City of Gooding shall be named as an "Additional Named Insured" under Grantee
insurance policy. Should the minimum limits of insurance as set forth herein be increased above
000 000, pursuant to the Idaho Tort Claims Act (Idaho Code Section 6-901 et. seq.) or any
similar legislation, the Grantee shall be required to provide the City with a new Certificate of
Insurance evidencing the higher limits upon the City's request.
SECTION 8. The electric service to be furnished to the public hereunder, and all rates
and charges therefore, and all regulation of the Grantee hereunder, shall at all times be subject to
all nlle~, regulations and orders that may be lawfully prescribed by the Idaho Public Utilities
Commission or by any other governmental authority now or hereafter having jurisdiction over
such matters. During the tenn of this franchise, Grantee shall at all times assure that customers
within the City have access to customer service from the Grantee as required by the Idaho Public
Utilities Commission.
SECTION 9. If authorized by formal adoption of city ordinance, as compensation for
the right, privilege and franchise hereby granted, Grantee agrees to pay to the City on or before
the 30th day of January, April, July and October, an amount equivalent to one percent (1 %) of
Grantee s "gross rev~nu~s" for the preceding calendar quarter. For purposes of this Section
gross revenues" shall mean the amount of money billed by the Grantee for the electricity it sells
within the corporate limits of the City to customers, less uncollectibles. The City shall provide
appropriate infonnation to the Grantee to allow the Grantee to identify which of its customers are
located within the corporate limits of the City for purposes of paYing franchise fees. Grantee
shall not be responsible for any failure to pay franchise fees which results from deficiencies in
such infonnation provided by the City. In the event the City annexes a new area into its
corporate limits, the tenus of this Section 9 regarding franchise fees shall not apply to the
annexed area until sixty (60) days after the City has supplied the Grantee with appropriate
infonnation for the identification of the Grantee s customers within the annexed area.
The Grantee s franchise fee payment obligations hereunder shall commence with the start
of the Grantee s first full billing cycle following the effective date of this ordinance; provided
that the Grantee must first receive approval from the Idaho Public Utilities Commission for the
collection of the franchise fee in the rates charged by Grantee.
SECTION 10. The City shall have the right during the tenn of this franchise agreement to
incrcase the ftanehise fee hereunder up to three percent (3%), by obtaining approval of a
majority of voters of the City voting on the question at an election held in accordance with
chapter 4, title 50, Idaho Code. Any such vote to increase the franchise fee hereunder shall
provide that th~ increased franchise fee will apply to any electric serviee provider (other than the
City) who utilizes the City s streets, alleys or other public places to provide electrical service
within the City, during the term of this franchise agreement.
SECTION 11. The Grantee shall keep accurate books of account for the collection of the
franchise fees hereunder and the City shall have the right to inspect the same at all times during
business hours, and from time to time audit the same tor the purpose of detennining gross
revenues under Section 9 above.
SECTION 12. The franchise fees paid by the Grantee hereunder will be in lieu of and as
payment for any tax or fee imposed by the City on the Grantee by virtue of its status as a public
utility including, but not limited to, taxes, fees or charges related to easements, franchises, rights-
of-way, utility lines and equipment installation, maintenance and removal during the term of this
franchise agreement.
SECTION 13. The Grantee shall have the right and privilege, insofar as the City is able
to grant the same, in accordance with National Arborist Association standards, of the pruning of
all trees which overhang the present and future streets. alleys. highways and other public places
within the corporate limits of the City, in such a manner and to such extent as will prevent the
branches or limbs or other parts of such trees from touching or interfering with its wires, poles
and other fixtures and equipment. However, except in an emergency, no pruning shall be
undertaken without giving the occupant of the adjacent property written or oral notice that such
pruning will be perfonned.
SECTION 14. In consideration of Grantee s undertaking hereunder as evidenced by its
acceptance hereof, the City agrees not to engage in the business of providing electric service
during the life of this franchise or any extension thereof in competition with the Grantee, its
successors and assigns; but nothing herein contained shall be construed or deemed to prevent the
City from exercising at any time any power of eminent domain granted to it under the laws of the
State of Idaho. The City shall not grant a franchise to another electric service provider during the
term of this franchise agreement unless the electric service provider has received approval to
provide electrical service within the City from the Idaho Public Utilities Commission, and the
City has imposed the same franchise fee on the electric service provider as paid by the Grantee.
SECTION 15. In the event of an amendment to the laws, rules or regulations of the City
of Gooding, the State of Idaho or the Public Utilities Commission of Idaho applicable to this
franchise, or for periodic review of any section of this agreement, the tenns of this franchise and
the rights and privileges hereby conferred may be changed, altered, amended or modified upon
mutual agreement between the City and the Grantee. In all cases, 60 days notice shall be
required on the part of City or Grantee to reopen the agreement pursuant to this section.
SECTION 16. Any violation by the Grantee of the provisions of this ordinance, franchise
and grant or any material portions thereof or the failure promptly to perfonn any of the
provisions thcreof shall be cause for the forfeiture of this franchise and grant and all rights
hereunder by the City after sixty (60) days' written notice to the Grantee and the continuance of
such violation, failure or default; however, this provision shall not prevent the Grantee from
submitting such 4ueslioll of violation or forfeiture to the appropriate forum (which may include
the district court having jurisdiction or the Idaho Public Utilities Commission) for detennination.
SECTiON 17.
notification to the City.
Sale, assignment or lease of this franchise is prohibileu without
SECTION 18. The Grantee shall assume the cost of publication of this franchise as such
publication is required by law.
SECTION 19. The Grantee shall within thirty (30) days after final passage of this
ordinance, file with the City Clerk its acceptance of this franchise in writing signed by its proper
officers and attested by its corporate seal.
SECTION 20. The existing franchise agreement between the City and Grantee set forth
in Gooding Ordinance No. 33, dated July 2, 1909, shall terminate upon the adoption and
acceptance of this ordinance.
SECTION 21. Inasmuch as the Grantee has constructed and now is maintaining and
operating the electric utility property and facilities in and upon the streets, alleys, highways, and
public places in the City, it is hereby adjudged and declared that this ordinance is necessary for
the preservation of the public peace, health and safety, and therefore this ordinance shall take
effect on September -. 2004
PASSED AND ADOPTED by the Council of the City of
of August 2004
Gooding this 16th day
APPROVED by the Mayor this 16th day of AugU8 t , 2004.
ATTEST:
~X,
' ,
~"Ci~y;Cler~'
;..,:"! :.. ..:.:' "-~ :""- ,- (" -" ,'
: ;(; (Seai)"
. -:;:: ,~' .), /
/ ~:' t
; " \
:.,~. -:i;
~~ ~:" "
, Ii :1 \ 'i'
....
IDAHO POWER COMPANY, as the franchisee, accepts the franchise set forth in the
above Ordinance and agrees to abide by the terms and conditions thereof.
DATED this D- day of '1~.Jr~'-c. 2004,
-#/(/~
tf;-1;~
ACCEPTANCE
By:
Secretary
(Seal)