20191029_mh2jo.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER RAPER
COMMISSIONER ANDERSONCOMMISSIONSECRETARY
COMMISSION STAFF
FROM:MATT HUNTER
DEPUTY ATTORNEY GENERAL
DATE:OCTOBER 24,2019
SUBJECT:COMMISSION AND DBS AGREEMENT ON THE ONE-CALL GRANT
The Commission is Idaho's only agency that can apply for the U.S.Department of
Transportation,Pipeline and Hazardous Materials Safety Administration's (PHMSA's)One-Call
Grant (the Grant).The Grant helps states support and improve pipeline safety.States may use it
for damage prevention,improving underground damage prevention laws,and related activities.
Last year,the Commission applied for and obtained a Grant on the Idaho Division of Building
Safety's (DBS's)behalf.The Commission then signed an inter-agency agreement with DBS for
the transfer and management of the Grant money.
On September 26,2019,PHMSA awarded the Commission a new Grant with a
September 30,2019 through September 29,2020 term,and Commission Staff negotiated another
inter-agency agreement with DBS (the Agreement).The new Agreement would require the
Commission to reimburse DBS for documented Grant expenses.The Commission must comply
with the Grant requirements.Both the Commission and DBS must keep accurate and complete
records for auditing purposes.DBS has signed the Agreement.
STAFF RECOMMENDATION
Staff recommends the Commission approve the Agreement to help promote pipeline safety
and enable Staff to efficiently and prudentlymanage the Grant money.
COMMISSION DECISION
Does the Commission wish to approve,and authorize the President to sign,the Agreement?
Matt Hunter
Deputy AttorneyGeneral
AGREEMENT BETWEEN THE IDAHO PUBLIC UTILITIES COMMISSIONANDTHEIDAHODIVISIONOFBUILDINGSAFETYFORINTER-AGENCYTRANSFERANDMANAGEMENTOFTHE2019ONE-CALL GRANT
This Agreement between the Idaho Public Utilities Commission and the Idaho Division ofBuildingSafetyforInter-Agency Transfer and Management of the 2019 One-Call Grant("Agreement")is effective the day of October,2019,by and between the Idaho PublicUtilitiesCommissionandtheIdahoDivisionofBuildingSafety("Parties").
RECITALS
A.The Idaho Public Utilities Commission ("Commission"),having authorization from theSecretaryoftheU.S.Department of Transportation to conduct pipelinesafety inspections per a 49U.S.C.§60105 certification,is the only Idaho state agency eligible to apply for the 2019 One-CallGrant("Grant")administered by the U.S.Department of Transportation,Pipeline and HazardousMaterialsSafetyAdministration("PHMSA").
B.The Notice of Funding Opportunity for the Grant states that the purpose of the Grant is toprovideassistancetostateagenciesinsupportofaone-call notification program and in promotingdamagepreventionandtoimproveundergrounddamagepreventionlaws,related complianceactivities,training,and public education.
C.The Commission submitted the Grant application on April 17,2019,on behalfofthe IdahoDivisionofBuildingSafety("Division").The project plan in the application sought anenforcementspecialisttobeemployedbytheDivisiontoI)investigate violations of chapter 22,title 55,Idaho Code;2)support the Idaho Damage Prevention Board ("Board")in its complianceactivities;and 3)develop and disseminate educational training.PHMSA awarded the Grant to theCommissiononSeptember26,2019.The term of the Grant is September 30,2019,throughSeptember29,2020.
D.Idaho Code section 67-2601A authorizes the Division to enter into contracts,employindividuals,and take other actions deemed necessary to administer the provisions of chapter 22,title 55,Idaho Code,relatingto underground facilities damageprevention,including administeringprovisionsregardingtheStateofIdaho's one-call notification program.
E.Idaho Code section 55-2203(18)authorizes the Board to receive contributions,gifts,andgrantsonbehalfofandinaidoftheStateofIdaho's damage prevention program and requires thatsuchcontributions,gifts,and grants be deposited into the damage prevention board fund.IdahoCodesection55-2204(1)authorizes the Division to receive moneys on behalf of the Board,requires that such moneys be deposited into the damage prevention board fund,and appropriatesmoneysplacedinthedamagepreventionboardfundtotheDivisiontocarryintoeffecttheprovisionsofchapter22,title 55,Idaho Code.
F.The Parties desire to provide for the inter-agency transfer and management of the Grant assetforthinthisAgreement.
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AGREEMENT
NOW THEREFORE,in consideration of the foregoing recitals,which are incorporated herein by
this reference,and the mutual promises and covenants herein contained,the Parties agree as
follows:
I.Inter-AgencyTransfer and Management of the 2019 Pipeline Safety State One-Call Grant.
a.During the term of the Grant,the Commission shall maintain its certification under
49 U.S.C.§60105 and follow the Guidelines for States Participating in the Pipeline Safety
Program manual.
b.During the term of the Grant,the Commission shall comply with all terrns of the
Grant.
c.The Division shall use legally available funds or include in its budget request funds
to cover any liability the Commission incurs,whether to PHMSA or to other third parties,as a
result of the acts,omissions,or negligence of the Division in performing its obligations under this
Agreement.
d.Each party shall be responsible for securing its own appropriate level of spending
authority for the Grant in the fiscal year(s)of the Grant.
e.The Division may request reimbursement from the Commission for spending that
is consistent with the purposes of the Grant set forth in section A.1 of the 2019 One-Call GrantNoticeofFundingOpportunityandpages3-6 and the budget attachment of the 2019 One CallApplication("Purposes of the Grant").The Division shall request reimbursement from the
Commission by submitting to the Commission a standard,official,month-end report ("Report")
from the State of Idaho Controller's Office breaking out expensesbysubject (for example,a DAFR
7850).The Report shall be for the fiscal month for which the Division wishes to be reimbursed.
The Division shall prepare and submit the Report in good faith,and shall make reasonable efforts
to ensure the contents of the Report are truthful and accurate.
f.If the Commission is unable to determine from the Report whether all of the
expenses during the fiscal month were consistent with the Purposes of the Grant,it may requestadditionalinformationrelevanttotheGrantfromtheDivision.If the Commission finds that some
or all of the Division's expenditures were not consistent with the Purposes of the Grant,the
Commission will not reimburse the Division for the non-qualifying expenditures.
g.The Commission shall transfer Grant monies to reimburse the Division for the
requested period within five (5)business days of the Commission's receipt of the Report,unless
subparagraph f applies.If subparagraph f applies,the Commission shall reimburse the DivisionforallqualifyingexpenditureswithinareasonabletimeafterreceiptofallrequestedadditionalinformationrelevanttotheGrant.
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h.The Division shall make all requests for reimbursement by October 15,2020.TheCommissionshallsubmitacheckpayabletoPHMSAforanyunexpendedamountsoftheGrantbythedeadlinesetbyPHMSA.The Commission shall submit the final status report to PHMSAbythedeadlinesetbyPHMSA.
2.Costs.Each party shall supply,at its sole expense,all staff,equipment,tools,materials,orsuppliesnecessarytoperformitsrespectiveobligationsunderthisAgreement.
3.Limitations.Nothing in this Agreement shall be construed as limiting or expanding thestatutoryorregulatoryresponsibilitiesoftheCommissionorDivisioninperformingfunctionsgrantedtothembylaw.Each and every provision of this Agreement is subject to the laws andregulationsoftheStateofIdahoandtothelawsandregulationsoftheUnitedStates.
4.Term and Termination.This Agreement shall commence upon execution by both partiesandexpirewhenallreportingrequirementsoftheGranthavebeensatisfied.Either party mayterminatethisAgreementatanytime,with or without cause,upon sixty (60)calendar days'priorwrittennoticetotheotherpartyspecifyingthedateoftermination.Notwithstanding termination,the Parties shall remain obligated as otherwise set forth in this Agreement to the extent of costs orobligationstothirdpartiesincurredpursuanttotheAgreementpriortothetermination.Additionally,notwithstanding termination,the Division shall retain reports,invoices,or otherrecordsrelevanttothisAgreementinaccordancewithU.S.Office of Management and Budgetguidanceat2C.F.R.§200.
5.Apportionment of Liabilitv.The Commission and Division shall be responsible only fortheacts,omissions,or negligence of such agency's own employees.The term "employee"isdefinedforthepurposesofthissectionassetforthinIdahoCodesection6-902.Nothing in thisAgreementshallextendthetortresponsibilityorliabilityofeithertheCommissionorDivisionbeyondthatrequiredbytheIdahoTortClaimsAct,Idaho Code section 6-901 et seq.Each partyshallberesponsiblefordamagetopropertyoftheotherpartycausedbyitsemployeesintheperformanceoftheAgreementtotheextentfundsarelegallyavailabletherefor.
The Parties acknowledge that both the Commission and Division participate in the State of IdahoRiskManagementProgramcomprehensiveliabilityplanutilizingtheRetainedRiskAccount("Risk Program").Any covered third party tort liability claim,suit or loss arising from thisAgreementshallbeallocatedtooneorbothagenciesbytheDivisionofRiskManagementforpurposesoftherespectivelossexperiencesandsubsequentallocationofself-insuranceassessments.If property damage arises in the performance of this Agreement and is covered bytheRiskProgram,the Division of Risk Management shall charge the damage or loss to theresponsibleagency's loss history,and the responsible agency shall pay the deductible,if any.EachofthePartiesisobligatedtonotifytheDivisionofRiskManagementandtheotheragencyuponreceiptofnoticeorintheeventithasknowledgeofanyclaimordamagearisingoutofthisAgreement.
If a claim or damage is not covered by the Risk Program,the responsible agency shall pay thecostsarisingfromsuchclaimordamagetotheextentfundsarelegallyavailabletherefor.If a
GRANT INTER-AGENCY TRANSFER AND MANAGEMENTAGREEMENT-Page 3 of4
claim or damage arises from both agencies'performance of the Agreement or is not allocable toeitheragency,each agency shall pay the costs to such agency arising from the claim or damage.
6.Force Majeure.No party will be liable for failure to perform any dutyunder this AgreementwheresuchfailureisduetounforeseeablecausesbeyondtheParties'control and without the fault
or negligence of the Parties,including,but not restricted to,acts of God or the public enemy,fire,flood,epidemics,quarantine,strikes or other natural disasters.No party shall be liable for anyfailuretoperformresultingfromanyorderofanycourtorstateorfederalagency.
7.Goveming Law and Severability.This Agreement shall be construed in accordance with
and govemed by the laws of the State of Idaho.Any action to enforce the provisions of this
Agreement shall be brought in state district court in Boise,Ada County,Idaho.In the event anytermofthisAgreementisheldtobeinvalidorunenforceablebyacourt,the remaining terms of
the Agreement will remain in force.
8.Non-Waiver.Each provision herein shall be treated as a separate and independent clause,
and the unenforceabilityof any one clause shall in no way impair the enforceability of any other
clauses herein.
9.No Authority to Bind the Other Party.One party under this Agreement shall have noauthoritytoenterintocontractsoragreementsonbehalfoftheotherparty.All contracts oragreementsshallbeenteredonbehalfoftheexecutingpartyorexecutedjointlybybothParties.
10.Entire Agreement.This Agreement constitutes the entire agreement between the Parties
and supersedes all prior agreements or understandings between the Parties.No change,
modification or waiver of any term of this Agreement shall be valid unless it is in writing andsignedbybothParties.
I 1.Amendments.This Agreement may be extended or modified upon written agreement oftheParties.However,no amendment or modification of this Agreement shall be effective unless
in writing and executed by the Parties.
IN WITNESS WHEREOF,the Parties have caused this Agreement to be executedby theirrespectiverepresentativesdulyauthorizedsotodoonthedateandyearwrittenbelow.
Idaho Public Utilities Commission:Idaho Division of Building Safety:
Paul Kjellander,President ClirÍs Je$,ministrator
Date:Date:/N
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