20050118_1059.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
CO MMISSI 0 NER SMITH
COMMISSIONER HANSEN
COMMISSION SECRETARY
LEGAL
WORKING FILE
FROM:MICHAEL FUSS
DATE:JANUARY 13, 2005
RE:VISTA TARIFF ADVICE NO. 04-05G AND 04-05E TO IMPLEMENT A
1 % FRANCHISE FEE ON NATURAL GAS AND ELECTRIC SERVICE
WITHIN THE CITY OF DALTON GARDENS.
On December 28 , 2004, A vista filed Tariff Advice No. 04-05G and No. 04-05E with the
Commission requesting the implementation of a 1 % franchise fee on both gas and electric
services within the City of Dalton Gardens. The increase would allow A vista to collect the
franchise fees that the Company is required to collect from customers and remit to the city
beginning February 1 , 2005. The franchise fee request is the result of the City of Dalton Gardens
Ordinance No. 168 (electric) and 169 (gas) both attached to this Decision Memorandum with the
Company s filing. Idaho Code ~50-329A allows cities to impose a 1 % franchise fee.
COMMISSION DECISION
The Staff recommends that Natural Gas Service Schedule 158 Fourth Revision Sheet 158
and Electric Service Schedule 58 Eighth Revision Sheet 58, be "accepted for filing" with an
effective date of February 1 2005 as proposed by the Company. Does the Commission agree?
~/~
lchael Fuss
udmemos/ A vista Franchise fee
DECISION MEMORANDUM JANUARY 13 2005
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CITY OF DALTON GARDENS, COUNTY OF KOOTENAI
VISTA CORPORATION
for a franchise to locate. construct
operate and maintain poles, wires, underground cables and
appurtenances over, under, along and
across road rights of way and public
properties herein mentioned for the
purpose of transmitting and
distributing electricity.
In the Matter of the Application of
Ordinance No. 168
GRANTING A FRANCHISE TO
AVISTA CORPORATION, FOR
THE CONSTRUCTION, OPERATION,
AND MAINTENANCE OF ELECTRIC
FACILITIES WITHIN THE CITY OF
DALTON GARDENS.
WHEREAS, Avista Corporation, a corporation organized under" the laws of the State of
Washington (hereinafter referred to as "Grantee ), has heretofore filed with the City of Dalton
Gardens, State of Idaho (hereinafter referred to as ItGrantor" or the "City") its written application
for a Franchise to locate, construct, operate and maintain poles, wires, underground cables and
appurtenances over, under, along and across all of Grantor's rights of way and public property
the City of Dalton Gardens, State of Idaho; and
WHEREAS, the Grantor duly fixed the time and place for hearing said application and
due and timely notice of said hearing on such application was given pursuant to statute and
ordinance, and hearing on said application having been held as prescribed by law, and the
Grantor having been fully advised in the premises and having determined that it is in the public
interest to grant such Franchise in the manner herein set forth; and
WHEREAS. Grantee is engaged in the business of providing utility services to customers
consistent with applicable laws and regulaijons, and Grantor has determined it is in the interest of
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persons and businesses inthisjurisglc::!iQIl_~9_b~Y,~acc~~~~~~~~!:!.t~~s~r"II'i?_
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NOW, THEREFORE, IT IS ORDERED:
SECTION 1 . 0: GRANT OF FRANCHISE
Avista Corporation. its successors and assigns, is hereby granted a Franchise for the
purposes identified below and subject to the following terms and conditions.1 . 1 TERM
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The rights. privileges and franchise hereby granted to, and conferred upon the Grantee,
". as the Grantee has made a long-term investment in constructing, maintaining and operating
the electric utility system in and upon the streets, alleys. and public places of the Grantor, to
provide electric service to the citizens of the Grantor. This franchise shall, unless it is sooner
terminated, as herein provided, extend for a term of 25 years.
1 .NON-EXCLUSIVE FRANCHISE
This Franchise is not, and shall not be deemed to be, an exclusive Franchise. This
Franchise shall not in any manner prohibit the Grantor from granting other and further
franchises over, upon, and along the Franchised Area that do not interfere with Grantee
rights under this Franchise. This Franchise shall not prohibit or prevent the Grantor from
using the Franchised Area or affect the jurisdiction of the Grantor over the same or any part
thereof.
1 .FRANCHISE AS CONTRACT
This Franchise . shall have the effect of and shall be a contract between Grantor and
Grantee and shall be the measure of the . rights and liabilities of the Grantor as well as of
Grantee. Both Grantor and Grantee shall have input and discussion prior to the final
passage of this Franchise.
1 .EFFECT OF INVALIDITY
The Franchise is granted pursuant to the laws of the state of Grantor relating to the
granting of such rights and privileges by Grantor. If any article. section, sentence, clause, or
phrase of this Franchise is for any reason held illegal, invalid, or unconstitutional, such
invalidity shall not affect the validity of the Franchise or any of the remaining portions. The
invalidity of any portion of this Franchise shall not abate, reduce, or otherwise affect any
obligation required of Grantee.
SECTION 2 . 0 PURPOSE OF FRANCHISE
Grantor hereby grants to Grantee, its successors and assigns. the right, power, privilege
and authority to enter upon all roads, rights of way, streets, alleys, highways, public places '
structures lying within the boundaries of Grantor and owned or maintained by Grantor now or in
the future, ("Franchised Area ) to locate, construct, operate and maintain poles, wires,
underground cables and all necessary or desirable appurtenances ("Facilities
) for the purpose of
transmitting and distributing electricity. This Franchise shall allow for the placement of such
Facilities as may be necessary to provide service within the City.2 . 1 TRIMMING/REMOVAL OF TREES
The right of Grantee to maintain its lines, Facilities and appurtenances .shall include the
right, as exercised in Grantee sole discretion. to utilize an integrated vegetation
management program. Grantee or Grantee s contractor may prune all trees and vegetation
which overhang a public right-of-way, property or place, whether such trees or vegetation
originate within or outside said right-of-way, property or place, in such a manner and to such
an extent as will prevent the branches or limbs or other parts of such trees or vegetation from
- growing. Such pruning shall comply with the American National Standard for Tree Care
Operation (ANSI A300) and be conducted under the direction of an arborist certified with the
International Society of Arboriculture or equivalent professional organization. A growth
inhibitor treatment may be utilized for trees and vegetation specie~ that are fast growing and
problematic. Nothing contained in this Section shall prevent Grantee, when necessary and
with the approval of the owner of the property on which they may be located, from cutting
down and removing any trees which overhang streets.2 . 2 RIGHT OF EXCAVATION
For the purpose of carrying into effect the privileges granted hereunder, Grantee is
authorized at any time to make all necessary excavations in the streets, alleys. roads, rights
of way and public grounds within the Franchised Area, but such excavation shall be carried
out with reasonable dispatch and with as little interference with or inconvenience to the rights
of the public as may be feasible. Grantee shall restore all streets, alleys, roads, rights of way
and public grounds to a standard as agreed upon for conditions of safety and use after
excavation.
SECTION 3 . 0 CONDUCT OF GRANTEE'S BUSINESS
The Grantor shall have the right to make and enforce reasonable rules and regulations
pertaining to the conduct of the Grantee s business. Service shall be supplied to the Grantor and
its inhabitants in accordance with the Grantee s rules snd regulations and tariffs filed or hereafter
filed with the appropriate regulatory body of this State having jurisdiction over the Grantee. This
Franchise is subject to the provisions of any applicable tariff on file with this State s Utilities and
Transportation Commission or its successor. In the event of any conflict or inconsistency
between the provisions of this Franchise and such tariff, the provisions of such tariff shall control.
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 this State.
3 . 1 NON-INTERFERENCE WITH EXISTING FACILITIES
All construction, installation, repair or relocation of lines and appurtenances performed by
Grantee along or under the roads, rights of way or properties subject to this Franchise shall
be done in such a manner as not to interfere with the construction and maintenance of other
utilities, public or private, drains, drainage ditches and structures, irrigation ditches and
structures located therein, nor with the grading or improvement of such roads, rights of way
or other public property subject to this Franchise.
Grantee shall provide the Grantor, upon the Grantors reasonable request, copies of
available drawings in use by Grantee showing the location of its Facilities at specific locations
within the Franchised Area. As to any such drawings so provided, Grantee does not warrant
the accuracy thereof and, to the extent the location of Facilities are shown, such Facilities are
shown in their approximate location. With respect to any excavations within the Franchised
Area undertaken by or on behalf of Grantee or the Grantor, noth!ng herein is intended (nor
shall be construed) to relieve either party of their respective obligations arising under
applicable law with respect to determining the location of utility facilities.3 . 2 NECESSARY CONSTRUCTION/MAINTENANCE BY GRANTOR
The laying, construction, operation and maintenance of Grantee s Facilities authorized by
this Franchise shall not preclude the Grantor, its agents or its contractors, from blasting,
grading, excavating, or doing other necessary road work contiguous to the said Facilities of
Grantee, provided that Grantee shall be given not less than ten (10) days' notice of said
blasting or other work, and provided further that the Grantor, its agents and "contractors shall
be liable for any damages, including any consequential damages to third parties, caused by
said work to any installations belonging to Grantee.
SECTION 4.VACATION OF PROPERTIES BY GRANTOR
, at any time, the Grantor shall vacate any road, right of way or other public property
which is subject to rights granted by this Franchise, such vacation shall be subject to the
reservation of a perpetual easement to the Grantee for the purpose of operating and maintaining
the Facilities of the Grantee and other public utilit1es. The Grantor shall, in its vacation
procedure, reserve and grant said easement to the Grantee for Grantee s Facilities and shall also
expressly prohibit any use of the vacated properties, which will interfere with Grantee s full
enjoyment and use of said easement.
SECTION 5 . 0 RELOCATION OF FACILITIES
Upon request of the Grantor, the Grantee shall relocate its Facilities as necessary within
the present and future streets, alleys, highways and other public places owned by the Grantor.
The Grantor shall have no responsibility for the costs of such relocations. The Grantee shall bear
the cost of relocating its Facilities at the Grantor 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 Grantor shall apply for such funds and the Grantee will be reimbursed to
the extent any such funds are actually obtained.
PUBLIC RIGHT OF WAY iMPROVEMENT
Whenever the Grantor causes a public right of way improvement to be undertaken within
the Franchised Area, and such public right of way improvement requires the relocation of
Grantee s then existing Facilities within the Franchised Area (for purposes other than those
described in paragraph 5.2 below), the Grantor shall:
provide Grantee, within a reasonable time prior to the commencement of such
- public right of way improvement, written notice requesting such relocation; and
provide Grantee with reasonable plans and specifications for such public right of
way improvement.
After receipt of such notice and such plans and specifications, Grantee shall relocate
such Facilities within the Franchised Area at no charge to the Grantor. If the Grantor requires
the subsequent relocation of any Facilities within five (5) years from the date of relocation of
such Facilities pursuant to this Section 5., the Grantor shall bear the entire cost of such
subsequent relocation. As used in this Section 5, the term "public right of way improvement"
is a Grantor funded capital improvement to the public right of way identified in the Grantor's
transportation improvement program.
PUBLIC OR PRIVATE DEVELOPMENT
Whenever any public or private development within the Franchised Area, other than a
public right of way improvement, requires the relocation of Grantee s Facilities within the
Franchised Area to accommodate such development; or (ii) the Grantor requires the
relocation of Grantee s Facilities within the Franchised Area for the" benefit of any person or
entity other than the Grantor, then in such event, Grantee shall have the right as a condition
of such relocation, to require such developer, person or entity to make payment to Grantee,
at a time and upon terms acceptable to Grantee, for any and all costs and expenses incurred
by Grantee in the relocation of Grantee s Facilities:
It is understood that the person or persons benefiting from a relocation of Facilities
should bear the expense of such relocation.
REQUIRED RELOCATION
Any condition or requirement imposed by the Grantor upon any person or entity, other
than Grantee, that requires the relocation of Grantee s Facilities shall be a required relocation
for purposes of paragraph 5.2 above (including, without limitation, any condition or
requirement imposed pursuant to any contract or in conjunction with approvals or permits for
zoning, land u~e, construction or development). .
COSTS
Nothing in this Section 5 "Relocation of Facilities" shall require Grantee to bear any cost
or expense in connection with the location or relocation of any Facilities then existing
pursuant to easement or such other rights not derived from this Franchise.S . 0 PRESERVATION OF GRANTOR1S RiGHTS TO CONTROL
The Grantor, in granting this Franchise, does not waive any rights which it may now have
or may hereafter acquire with respect to road rights of way or other property of Grantor under this
Franchise, and this Franchise shall not be construed to deprive the Grantor of any such powers,
rights or privileges which it now has or may hereafter acquire to regulate the use of and to control
the Grantor's roads, rights of way and other public property covered by this Franchise.
EXPANSION OF GRANTEE'S FACILITIES
Any Facilities and appurtenances in streets, alleys, rights ~f way and public places
incidental to the franchise system, that have been, or are at any future time acquired, leased
or utilized in any manner by Grantee are thereupon to be deemed authorized by and shall be
subject to all provisions of this Franchise.
CHANGE OF BOUNDARIES OF GRANTOR
Any subsequent additions or modifications of the boundaries of the Grantor, whether by
annexation, consolidation or otherwise, shall be subject to the provisions of this Franchise as
to all such areas. Grantor shall notify Grantee of the precise scope of any. change of
boundaries not less than sixty (60) days prior to such change becoming effective.6 . 3 POLE CONTACT AGREEMENT
Grantor shall be permitted, upon reasonable notice to Grantee and without charge
therefore, to attach its traffic control, fire alarm and police signal wires to the poles of Grantee
in said Grantor's City, but at the G~antor s own risk and only in accordance with standard
safety practices and codes. If there is not sufficient space available thereon for said
purposes, Grantee s structures may be so changed, altered, or rearranged at the expense of
the Grantor so as to provide proper clearance arid capacity for such wires. Such facilities
shall be subject to interference by Grantee only when to the extent necessary for the proper
construction, maintenance, operation or repair of Grantee electric utility property and
facitities.
SECTION 7 . a INDEMNITY
Grantee agrees to defend, indemnify and hold harmless the Grantor, its appointed and
elected officers and employees, from any and all liabilities, claims, causes of action, losses,
damages and expenses, including costs and reasonable attorneys fees, that the Grantor may
sustain, incur, become liable for, .or be required to pay, as a consequence of or arising from the
construction, installation, maintenance, condition or operation of the Grantee s equipment or
Facilities, or appurtenances thereto, connected with this franchise , that now or may hereafter be
upon, under, over, in, across or along, the highways, roads, alleys, bridges or other public ways
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or places of the Grantor; provided, however, that this indemnification provision shall not apply to
the extent that said liabilities, claims, damages, losses and so forth were caused by or result from
the negligence of the Grantor.
Grantor agrees to defend, indemnify and hold harmless the Grantee, its officers and
employees; from any and all liabilities, claims, causes of action, losses, damages and expenses,
including costs and reasonable attorneys fees, that the Grantee may sustain, incur, become
liable for, or be required to pay, as a consequence of or arising from the negligent acts or
omissions of the Grantor, its officers, employees or agents; provided, however, that this
indemnification provision shall not apply to the extent that said liabilities, claims, damages, losses
and so forth were caused by or result from the negligence of the Grantee.
SECTION 8 " 0 FORFEITU RE
If Grantee shall willfully violate or fail to comply with any of the provisions of this
Franchise through willful and unreasonable neglect or willful and unreasonable failure to heed or
comply with any notice given Grantee under the provisions of this grant, then Grantee shall forfeit
all rights conferred hereunder and this Franchise may be revoked or annulled by the Grantor,
provided, however, the Grantor shall give ninety (90) days' written notice of its intention to revoke
or annul the Franchise during which period Grantee shall have the opportunity to remedy any
breach.
SECTION 9 " 0 FRANCHISE DISPUTE RESOLUTION
Disputes regarding the interpretation or execution of the terms within this franchise will be
submitted to the Public Works Director for attempted mediation. If a mutually satisfactory
~ resolution cannot then be reached, then the Grantee can appeal to the City Council, reserving its
rights to judicial relief.
SECTION 10" 0 FRANCHISE FEES
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 revenues" for the preceding calendar quarter.
For purposes of this Section, IIgross 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 information 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 information ' provided by the City. In the event the City
annexes a new area into its corporate limits, the terms of this Section regarding franchise fees
shall not apply to the annexed area until sixty (60) days after the City has supplied the Grantee
with appropriate information 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.
The City shall have the right during the term of this Franchise to increase the franchise
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 the increased franchise
fee will apply to any electric service provider (other than the City) who utilizes the City"s streets
10 . 1 EQUALITY OF FRANCHISE FEES AND COSTS
In the event that Grantor charges or imposes upon Grantee any fees, taxes or other costs
in connection with the issuance, maintenance, existence, continuation, or use of the franchise
or the public rights-of-way governed hereby, granted pursuant to this document, then Grantor
shall impose equivalent qharges, fees, taxes or costs upon any other franchisee in the same
business or competing with Grantee.
SECTION 11 . 0
. .
PRIOR FRANCHISES SUPERSEDED
This Franchise shall update and supersede aU prior electric franchises for the above
stated purpose heretofore granted to Grantee or its predecessors. by' Grantor, or its
predecessors, and shall affirm. authorize and ratify .all prior installations authorized by permits or
other action not previously covered by this Franchise.
SECTION 12.ASSIGNMENT OF FRANCHISE.
Grantee shall have the right to assign its rights, benefits and privileges in and under this
Franchise. Any assignee shall. within thirty (30) days of the date of any assignment, file written
notice of the assignment with the Grantor together with its written acceptance of all terms and
conditions of this Franchise. . Notwithstanding the foregoir:tg, Grantee shall have the right, without
such notice or such written acceptance, to mortgage its rights, benefits and privileges in and
under this Franchise for the benefit of bondholders.
SECTION 13 . 0 ACCEPTANCE OF FRANCHISE
Grantee shall notify Grantor in writing of its acceptance of this Franchise within thirty (30)
days of the passage and approval of this Franchise by Grantor.
SECTION 14.EFFECTIVE DATE
This Ordinance shall be in full force and effect from the date of approval. passage and
publication as required by law.
PASSED AND APPROVED on this 71t1 day of October. 2004.
City of Dalton Gardens
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By:
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Marcia Wingfield '
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Title: City Clerk
By: ~C'-. ~\
Dan Franklin
Title: Mayor
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ORDINANCE NO.169
AN ORDINANCE GRANTING A FRANCHISE IN THE
CITYOF DALTON GARDENS, STATE OF IDAHO ,TO AVISTA CORPORATION
WHEREAS, Avista Corporation, a corporation organized under the. laws of the State of
Idaho (hereinafter referred to as "Grantee ), has respectfully requested that the City of Dalton
Gardens (hereinafter referred to as "Grantor") in the State of Idaho, renew its Franchise to
locate, construct, operate and maintain such plants and works and all necessary or desirable
appurtenances thereto for the manufacture, purchase, transmission and distribution of gas under,
along and across all of Grantor's rights of way and public property in the City of Dalton Gardens,
State of Idaho; and
WHEREAS, Grantee is engaged in the business of providing utility services to customers
consistent with applicable laws and regulations, and GFantor has determined it is in the interest of
persons and businesses in this jurisdiction to have access to Grantee s services;
NOW, THEREFORE, IT IS ORDERED. that Avista Corporation. its successors and
. assigns, is granted a non-exclusive franchise in the City of Dalton Gardens, State of Idaho, on
the terms and conditions set forth below:
I. GRANT
Grantor hereby grants to Grantee, its successors and assigns, the right, power, privilege
and authority.to construct. or otherwise acquire, and to own, maintain, equip, and operate plants
and works, and all necessary or desirable appurtenances thereto, for the production, purchase,
Jf~n~rT1i~~i~~,~nd ~i~~!i~~ti
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incIUding, the ,rig~~to, construct, lay, maintain, operate"
extend, renew, remove, replace. repair:"use-.~nd'operate gasdistribUtiorrSystem,in,under, .
upon, over, across, and along the present and future public properties within the present or any
future corporate limits of the Grantor, including streets, rights of way, bridges and other
structures, for the purpose of transporting, distributing and selling gas (with the right and privilege
to make such connections with said pipes as will enable the Grantee to supply gas) for
heating,
lighting, power and any and all domestic, commercial, and industrial purposes, and other reasons
and purposes within and through the Grantor s corporate limits and to the Grantor and its
inhabitants, and to other persons, firms, entities or municipal corporations. Grantee shall comply
with applicable laws and regulations.
""-
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. II. TERM
The rights, privileges and franchise hereby granted to, and conferred upon the Grantee
shall, unless this Franchise be sooner terminated as herein provided, extend for a term of 25
years from the date of written acceptance her.eof by the Grantee.
. 111. SERVICE TO BE FURNISHED
At all times during the term of this franchise, the Grantee, subject to its tariffs, rules and
regulations as filed with the Idaho Utilities and Transportation Commission and subject
available natural gas supplies, shall supply natural gas to the City I its successors, and to its
inhabitants and persons and corporations thereof and any other consumers who shall request the
same and shall, as appropriate, acquire, construct, maintain, equip, and operate all necessary
facilities for the purchase, transmission and distribution of natural gas for the benefit and
convenience of the City of Dalton Gardens and its inhabitants.
IV. RIGHT OF EXCAVATION
For the purpose of carrying into effect the privileges granted hereunder, Grantee is
authorized at any time to make all necessary excavations in the streets, alleys, roads, rights of
way and public grounds within the franchised area, but such excavation shall be carried out with
reasonable dispatch and with as little interference with or inconvenience to the rights of the public
as may be feasible. In case any obstruction caused by Grantee shall remain longer than ten
working days after notice to remove it, or in case of neglect by Grantee to safeguard any
dangerous places, Grantor may remove such obstruction or safeguard such dangerous places.
The Grantor shall be paid the reasonable costs of removal by the Grantee.
V. REMOVAL OF FACILITIES
Only under circumstances of demon$trated threat to public health and safety or obstruction of
public construction projects within the right-ot-way, the Grantor may require the Grantee to
remove affected abandoned facilities. Upon a forfeiture of the franchise, or non-renewal of the
franchise, the Grantor may require the Grantee, to remove such of its facilities from the public
properties at its own expense and as soon as practicable, but only where such abandoned
facilities constitute a demonstrated threat to public health and safety. If it becomes necessary for
the Grantor to do so, the Grantor shall be paid the reasonable and actual costs of removal by the
Grantee.
VI. NON-INTERFERENCE WITH EXISTING FACILITIES
All construction, installation, repair or relocation of lines and appurtenances performed by
Grantee along or under the roads, rights of way or properties subject to this Franchise shall be
done in such a manner as not to interfere with existing facilities of other utilities, public or private,
including drains, drainage ditches and structures, irrigation ditches and structures located therein.
Grantee shall provide the Grantor, upon the Grantor's reasonable request, copies of
available drawings in use by Grantee showing the location of its Facilities at specific locations
within the Franchised Area. As to any such drawings so provided, Grantee does not warrant the
accuracy thereof and, to the extent the location of Facilities are shown, such Facilities may be
shown in their approximate location. With respect to any excavations within the Franchised Area
undertaken by or on behalf of Grantee or the Grantor, nothing herein is intended, nor shall be
construed, to relieve either party of their respective obligations arising under applicable law with
respect to determining the location of utility facilities.
VII. NECESSARY CONSTRUCTION/MAINTENANCE BY GRANTOR
The laying, construction, operation and maintenance of Grantee s .lines and
appurtenances authorized by this Franchis~ shall not preclude the Grantor, its agents or its
contractors, from grading, excavating, or doing other necessary road work contiguous to the said
lines and facilities of Grantee, provided that Grantee shall" be given not less than ten (10) working
days' notice of said work. In the instance of blasting, Grantee shall be given not less than 120
days notice of such work. Provided further that the Grantor, its agents and contractors shall be
liable for any damages, including any consequential damages to third parties, caused by said
work to any installations belonging to Grantee.
VIII. VACATION OF PROPERTIES BY GRANTOR
, at any time, the Grantor shall vacate any road, right of way or other public property
which is subject to rights granted by this Franchise, to the extent permitted by law, such vacation
shall be subject to the reservation of a perpetual easement in favor of Grantor for the purpose of
operating and maintaining the facilities of the Grantee and other public utilities.
Such easement
shall also expressly prohibit any use of the vacated properties which will interfere with Grantor's
ability to provide Grantee s full enjoyment of its rights under this Franchise. Grantor shall also
continue to permit Grantee to operate and maintain its facilities in or on the vacated property
consistent with and subject to this Franchise.
IX. RELOCATION OF FACILITIES
Section 1. Notice Requirement. Grantor shall notify Grantee of any intended or expected
requirement or request to relocate Grantee s facilities as early as practicable, but not less than
120 days prior to any such relocation when the requirement or request could have been
foreseen by that date. Grantor shall endeavor to cause any such relocation to be consistent
with any applicable long-term development plan or projection of Grantor or approved by
Grantor. If, at any time, the Grantor shall cause or require the alteration or the improvement of
any road, highway or right-of-way wherein Grantee maintains facilities subject to this franchise
by grading or re-grading, planking or paving the same, changing the grade, altering, changing,
repairing or relocating the same or by constructing drainage or sanitary sewer facilities, the
Grantee upon written notice from the Grantor shall, with all convenient speed, change the
location or readjust the elevation of its system and other facilities so that the same shall not
interfere with such work and so that such equipment and facilities shall conform to such new
grades or routes as may be established.
Section 2. Reimbursement of Cost. The relocation of Grantee s facilities shall be at the
sole expense of Grantee when the relocation is paid solely by public funds unless the Grantor
has failed to provide the required advanced notice, then any and all reasonable excess costs
caused by the failure to provide such notice shall be paid by the Grantor, or the required move
forces Grantee off public right of way then Grantor will provide for proper easement or right-of-
way to accommodate said relocation.
Whenever the Grantor requires the relocation of Grantee s Facilities within the
Franchised Area for the benefit of any person or entity other than the Grantor, then Grantee
shall have the right as a condition of such relocation, to require such developer, person or
entity to make payment to Grantee, at a time and upon terms acceptable to Grantee, for any
and all costs and expenses incurred by Grantee in the relocation of Grantee
s Facilities:
accordingly, the Grantor shall not authorize any improvement or change until the benefited
developer, person or entity has agreed to pay Grantee for the cost of relocation.
In the event federal, state or other funds are available in whole or in part for utility relocating
purposes, the Grantor shall apply for such funds and the Grantee will be reimbursed to the extent
any such funds are actually obtained.
X. FRANCHISE DISPUTE RESOLUTION
Disputes regarding the interpretation or execution of the terms within this franchise will be
submitted to the Public Works Director for attempted mediation. If a mutually satisfactory
resolution cannot then be reached, then the Grantee can appeal to the City Council, reserving its
rights to judicial relief.
XI. PRESERVATION OF GRANTOR'S RIGHTS TO CONTROL
The Grantor, in granting this Franchise, does not waive any rights which ~t may now have
or may hereafter acquire with respect to road rights of way or other property of Grantor under this
Franchise, and this Franchise shall not be construed to deprive the Grantor of any such
powers,
rights or privileges which it now has or may hereafter acquire to regulate the use of and to control
the Granto~s roads, rights of way and other public property covered by this Franchise.
XII. TRIMMING/REMOVAL OF TREES
The right of Grantee to maintain its gas lines, fapilities and appurtenances shall include
the right, as exercised in Grantee s sole discretion, to utilize an integrated vegetation
management program, including the right to cut, trim or remove any and all trees, brush or shrubs
growing in, on, or hanging over any Grantor roads, rights otway, streets, alleys or Grantor
property that interfere with or may interfere with Grantee s facilities, including pipes, valves,
services, conduits or other apparatus of Grantee, its successors and assigns.
XIII. NON-EXCLUSIVE FRANCHISE
This Franchise shall not be deemed to be an exclusive Franchise. It shall in no manner
prohibit the Grantor from granting other franchises of a like nature or franchises to other public or
"'
private utilities under, along, across, over and ~pon any of Grantor's roads, rights of way or other
property of Grantor subject to this Franchise and shall in no way prevent or prohibit the Grantor
from constructing, altering, maintaining or using any of said roads, rights of way, drainage
structures or facilities, irrigation structures or facilities; or any other property of Grantor or affect
its jurisdiction over such property to make all necessary changes, relocations, repairs,
maintenance,. etc., insofar as the Grantor may deem fit
XIV. FRANCHISE FEES
For and in consideration of the rights and privileges set forth herein, Grantee, as
consideration therefore, in lieu of other City fees and as compensation for the use herein granted
streets, alleys and other public ways, shall pay to the City a sum equal to 1 % of its gross
operating revenues which are hereby defined to mean all amounts of money which the Grantee
billed for the sale, transmission and/or distribution, less uncollectables, of electrical power
within the City. Grantor shall pay the Grantee, quarterly, a sum equal to 1 % of its previous
quarter s gross operating revenues. The City shall have the option to adjust" fees annually
according to applicable laws.
XV. EQUALITY OF FRANCHISE FEES AND COSTS
In the event that Grantor charges or imposes upon Grantee any fees, taxes or other
costs in connection with the issuance, maintenance, existence. continuation, or use of the
franchise, or the public rights-of-way governed hereby, granted pursuant to this document, then
Grantor shall impose equivalent charges, fees, taxes or costs upon ~ny other franchisee in the
same business or competing with Grantee.
XVI. FORFEITURE
If Grantee shall willfully violate or fail to substantially comply with any of the provisions of
this Franchise through willful and unreasonable neglect or willful and unreasonable failure to
heed or comply with any notice given Grantee under the provisions of this grant, then Grantee
shall forfeit all rights conferred hereunder and this Franchise may be revoked or annulled by the
Grantor; provided, however, the Grantor shall give ninety (90) days' written notice of its intention
to revoke or annul the Franchise during which period Grantee shall have the opportunity to
remedy any breach.
XVII. EXPANSION OF GRANTEE'S FACILITIES
Any facilities and appurtenances in streets, alleys, rights of way and public places,
incidental to the franchise system, that have been, or are at any future time acquired
, newly
constructed, leased, or utilized in any manner by' Grantee are thereupon to be deemed
authorized by and shall be subject to all provisions of this Franchise.
XVIII. CHANGE OF BOUNDARIES OF GRANTOR
Any subsequent additions or modifications of the boundaries of the Grantor, whether by
annexation, consolidation or otherwise, shall be subject to the provisions of this Franchise as to
all such areas. Grantor shall notify Grantee of the precise scope of any change of boundaries not
less than sixty (60) days prior to such change becoming effective.
XIX. PRIOR FRANCHISES SUPERSEDED
This Franchise shall update and supersede all prior gas franchises for the above stated
purpose heretofore granted to Avista Corporation or its predecessors, by Grantor, or its
predecessors, and shall affirm, authorize and ratify all prior installations authorized by permits or
other action not previously covered by this Franchise.
xx. ASSIGNMENT OF FRANCHISE
Grantee, its successors and assigns. shall have the right to sell, transfer or assign this
Franchise upon the written consent of the Grantor, which consent shall not be unreasonably
withheld. All provisions, conditions, regulations and requirements herein contained shall be
binding upon and inure to the benefit of the successors and assigns of the parties hereto.
XXI. EFFECT OF INVALIDITY
The Franchise is granted pursuant to the laws of the state of Grantor relating to the
granting of such rights and privileges by Grantor. If any article, section , sentence, clause , or
phrase of this Franchise is for any reason held illegal , invalid, or unconstitutional, such invalidity
shall not affect the validity or intent of the Franchise or any of the remaining portions. The
invalidity of any portion of this Franchise shall not abate, reduge, or otherwise affect any
obligation required of Grantee.
XXII. FRANCHISE AS CONTRACT
This Franchise shall have the effect of and shall be a contract between Grantor and
Grantee and shall be the measure of the rights and liabilities of the Grantor as well as of Grantee.
XXIII. INDEMNITY
Grantee agrees to defend, indemnify and hold harmless the Grantor, its appointed and
elected officers and employees, from any and all liabilities, claims, causes of action, losses,
damages and expenses. including costs and reasonable attorneys fees, that the Grantor may
sustain, incur, become liable for, or be required to pay, as a consequence of or arising from the
construction, installation, maintenance, condition or operation of the Grantee s equipment or
facilities, or appurtenances thereto, connected with this franchise, that now or may hereafter be
upon, under, over, in, across or along, the highways, roads, alleys, bridges or other public ways
or places of the Grantor; provided, however, that this indemnification provision shall not apply to
the extent that said liabilities, claims, damages, losses and so forth were caused by or result from
the negligence of the Grantor.
Grantor agrees to defend, indemnify and hold harmless the Grantee, its officers and
employees, from any and all liabilities, claims, causes of action, losses, damages and expenses,
including costs and reasonable attorneys fees, that the Grantee may sustain, incur, become
liable for, or be required to pay, as a consequence of or arising from the negligent acts or
omissions of the Grantor, its officers, employees or agents; provided, however, that this
indemnification provision shall not apply to the extent that said liabilities, claims, damages, losses
and so forth were caused by or result from the negligence of the Grantee.
XXIV. INSURANCE
During the term of this franchise, the Grantor may review the relative risk of the Grantee
installation and operations and request changes to insurance and liability protections at least
sixty (60) days before the anniversary date of the franchise. Unless so modified, Grantee shall
furnish satisfactory evidence of commercial ~eneral liability insurance and maintain the same in
good standing, with limits of at least five hundred thousand dollars ($500,000) per occurrence
and one million dollars ($1 000,000) aggregate, with the City of Dalton Gardens named as an
additional insured. Self insurance is acceptable, if approved by the Grantor and backed by the
resources of the Grantee.
Any Grantee insurance. policy or approved self insurance arrangements addressing
requirements of seCtion XXIII above or otherwise because of. Grantee s negligent or intentional
acts or omissions shall be primary to any Grantor insurance coverage or, in the event Grantor is
. self insured, any Grantee policy shall afford first dollar protection coverage for risks included in
Grantee s operations. On or before thirty (30) days of the anniversary date of the franchise
Grantee shall file with the City Clerk proof of continued insurance coverage, at least in the
amounts . required in this section, through a Certificate of Insurance, including the. additional
insured endorsement indicating Grantor coverage required herein and a provision that the
coverage may not be cancelled or reduced without at least thirty (30) days notice.to the Grantor.
xxv. ABANDONMENT OF FRANCHISE
Grantee may at any time abandon the rights and authorities granted hereunder, provided
that six (6) months' written notice of intention to abandon is given to Grantor.
XXVI. AGREEMENT NOT TO COMPETE
RESERVE TO GRANTOR POWER.. O~ EMINENT DOMAIN
In consideration of Grantee s undertaking hereunder as evidenced by its acceptance hereof the
Grantor agrees not to engage in the business of distribution and selling gas during the life of this
franchise or any extension thereof in competition with the Grantee, its successor and assigns; but
nothing herein contained shall be construed or deemed to prevent the Grantor form exercising at
any time any power or eminent domain granted to it under the laws of the State of Idaho
XXVII. ACCEPTANCE OF FRANCHISE
Grantee shall notify Grantor in writing of its acceptance of this Franchise within thirty (30)
days of the approval of this Franchise by Grantor.
PASSED AND APPROVED on this 7th day of October, 2004
Grantor of City of Dalton Gardens
..
Y~c-JliL
Dan Franklin
Title: MayorEST' '~
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Marcia Wingfield .
. -"-:;,: '
Ti~le: City Clerk
CITY OF DALTON GARQENS
IDAHO
, ORDINANCE NO. 171
AN ORDINANCE OF THE CITY OF DALTON GARDENS, IDAHO,
CLARIFYING AND AMENDING CERTAIN PORTIONS OF ORDINANCE
NUMBERS 168 AND 169 GRANTING FRANCHISES TO AVISTA CORPORATION
FOR NATURAL GAS AND ELECTRICITY.
WHEREAS, The City Council of Dalton Gardens published Ordinance No. 168
and 169, which are ordinances granting gas and electrical franchises to VISTA
Corporation, on August 18, 2004, and then adopted the same ' at its October 7, 2004
regularly scheduled meeting with a subsequent publication on October 18, 2004
and
WHEREAS, a scrivener s error existed in Ordinance No. 169 which is in need
of correction:
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COUNCIL OF THE CITY OF DALTON GARDENS, IDAHO, as follows:
Section 1.Section XIV of Ordinance No. 169 shall be amended and hereafter
read:
XIV. FRAN cmSE FEES
For and in consideration of the rights and privileges set forth herein, Grantee, as
consideration therefore, in lieu of the other City fees and as compensation for the use
herein granted streets, alleys and other public ways, shall pay to the City a sum equal to
% of its gross operating revenues which are hereby derIDed to mean all amounts of
money which the Grantee billed for the sale, transmission and/or distribution, less
uncollectables, of eleetrical pO~
~:'
ler gaS service within the City: Grantor shall pay the
Grantee, quarterly, a sum equal to % of its previous qu~er s gross operating revenues.
The City shall have the option to adjust fees annually according to applicable laws.
Section 2:The City of Dalton Gardens, Idaho, hereby adopts the text of
Ordinance No. 168 and Ordinance 169, with the amendment above stated.
All Ordinances and parts of Ordinances in conflict with this Ordinance are
hereby repealed to the extent necessary to give this Ordinance full force and effect.
PASSED AND ENACTED as an Ordinance of the City of Dalton Gardens,
. Idaho this 4th day of November 2004.
~ ~'-.~/ -
Daniel Franklin, Mayor
ATIEST: