One Call Memo and attachment 11.1.18.pdf

GRANT INTRA-AGENCY TRANSFER AND MANAGEMENT AGREEMENT – Page 1 of 5
AGREEMENT BETWEEN THE IDAHO PUBLIC UTILITIES COMMISSION AND
THE IDAHO DIVISION OF BUILDING SAFETY FOR INTRA-AGENCY TRANSFER
AND MANAGEMENT OF THE 2018 PIPELINE SAFETY STATE ONE-CALL GRANT

This Agreement between the Idaho Public Utilities Commission and the Idaho Division of
Building Safety for Intra-Agency Transfer and Management of the 2018 Pipeline Safety State One-
Call Grant (“Agreement”) is effective the _____ day of November, 2018, by and between the Idaho
Public Utilities Commission and the Idaho Division of Building Safety (“Parties”).

RECITALS

A. The Idaho Public Utilities Commission (“Commission”), having received certification
from the Secretary of the U.S. Department of Transportation under 49 U.S.C. § 60105, is the only
Idaho state agency eligible to apply for the 2018 Pipeline Safety State One-Call Grant (“Grant”)
administered by the U.S. Department of Transportation, Pipeline and Hazardous Materials Safety
Administration (“PHMSA”).

B. The Notice of Funding Opportunity for the Grant states that the purpose of the Grant is to
provide assistance to state agencies in support of a one-call notification program and in promoting
damage prevention and to improve underground damage prevention laws, related compliance
activities, training, and public education.

C. The Idaho Division of Building Safety (“Division”) prepared the Grant application. The
Commission submitted the Grant application on July 19, 2018, on behalf of the Division. The
project plan in the application sought an enforcement specialist to be employed by the Division to
1) investigate violations of chapter 22, title 55, Idaho Code; 2) support the Idaho Damage
Prevention Board (“Board”) in its compliance activities; and 3) develop and disseminate
educational training. On September 25, 2018, PHMSA awarded the Grant to the Commission.

D. Idaho Code section 67-2601A authorizes the Division to enter into contracts, employ
individuals, and take other actions deemed necessary to administer the provisions of chapter 22,
title 55, Idaho Code, relating to underground facilities damage prevention, including administering
provisions regarding the State of Idaho’s one-call notification program.

E. Idaho Code section 55-2203(18) authorizes the Board to receive contributions, gifts, and
grants on behalf of and in aid of the State of Idaho’s damage prevention program and requires that
such contributions, gifts, and grants be deposited into the damage prevention board fund. Idaho
Code section 55-2204(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 appropriates
moneys placed in the damage prevention board fund to the Division to carry into effect the
provisions of chapter 22, title 55, Idaho Code.

F. The Parties desire to provide for the intra-agency transfer and management of the 2018
Pipeline Safety State One-Call Grant as set forth in this Agreement.

AGREEMENT
GRANT INTRA-AGENCY TRANSFER AND MANAGEMENT AGREEMENT – Page 2 of 5

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:

1. Intra-Agency Transfer and Management of the 2018 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 terms 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. The Commission shall use its existing federal spending authority for the Grant in
fiscal year 2019. If the Idaho Governor or Idaho Legislature does not approve acceptance of the
Grant, or provide the Division the necessary spending authority to implement the project plan, the
Division shall transfer to the Commission all amounts of the Grant received by the Division and
the Commission shall submit a check payable to PHMSA for all amounts of the Grant before the
end of the term of the Grant.

e. The Commission shall request the total amount of the Grant from PHMSA as soon
funds are made available by PHMSA, provided this Agreement has been duly executed by the
Parties.

f. The Commission shall transfer fifty percent (50%) of the total amount of the
Grant to the Division as soon funds are made available by PHMSA, provided this Agreement has
been duly executed by the Parties. The Commission shall transfer the remaining fifty percent
(50%) of the total amount of the Grant to the Division upon PHMSA’s receipt and approval of
the mid-term report.

g. The original end of the term of the Grant was December 31, 2018. The
Commission requested and PHMSA approved extending the term of the Grant to August 12,
2019.

h. The Division shall take primary responsibility for administering and complying
with the terms of the Grant and assist the Commission in meeting the Commission’s obligations
under the terms of the Grant.

i. The Division shall provide the Commission with written notice of any proposed
change in the project period, budget, scope, objective, or key personnel identified in the
GRANT INTRA-AGENCY TRANSFER AND MANAGEMENT AGREEMENT – Page 3 of 5
application at least thirty-five (35) days prior to 1) the requested effective date of the proposed
change and 2) the end of the term of the Grant. Along with the notice, the Division shall provide
the Commission with a revised financial estimate and plan. The Commission shall submit the
notice and revised financial estimate and plan to PHMSA at least thirty (30) days prior to 1) the
requested effective date of the proposed change and 2) the end of the term of the Grant. The
Commission shall notify the Division of approval or denial of the request upon notification from
PHMSA.

j. The Division shall either authorize the Commission to access the Division’s
agency reports from the Office of the State Controller’s (“SCO”) system or provide monthly
expense reports from the SCO system to the Commission within three (3) business days of the
official SCO monthly close date. In addition, the Division shall provide the Commission with
any and all reports, invoices, or other records relevant to this Agreement. The Commission shall
submit such records to PHMSA in accordance with any requirements imposed by PHMSA.

k. The Division shall provide the Commission with the mid-term report in
accordance with the form and timing required by PHMSA. The Commission shall inform the
Division of mid-term reporting requirements imposed by PHMSA within three (3) business days
of receipt from PHMSA. The Commission shall submit this report to PHMSA in accordance
with the terms of the Grant.

l. Before the end of the term of the Grant or upon earlier termination of this
Agreement as set out in section four (4) of this Agreement, the Division shall provide the
Commission with a final financial status report, which accounts for all of the amounts of the
Grant received by the Division, breaks down the costs for each object class category (personnel,
fringe benefits, travel, equipment, supplies, contractual, other, and indirect charges), and details
the project’s accomplishments. The Commission shall submit this report to PHMSA in
accordance with the terms of Grant.

m. The Division shall transfer to the Commission any amounts of the Grant not
expended by the end of the term of the Grant within sixty (60) days of submission of the final
financial status report. The Commission shall submit a check payable to PHMSA for the
unexpended amounts of the Grant within ninety (90) days of the submission of the final financial
status report.

2. Costs. Each party shall supply, at its sole expense, all staff, equipment, tools, materials, or
supplies necessary to perform its respective obligations under this Agreement.

3. Limitations. Nothing in this Agreement shall be construed as limiting or expanding the
statutory or regulatory responsibilities of the Commission or Division in performing functions
granted to them by law. Each and every provision of this Agreement is subject to the laws and
regulations of the State of Idaho and to the laws and regulations of the United States.

4. Term and Termination. This Agreement shall commence on upon execution by both parties
and expire when all reporting requirements of the Grant have been satisfied. Either party may
terminate this Agreement at any time, with or without cause, upon ninety (90) calendar days’ prior
GRANT INTRA-AGENCY TRANSFER AND MANAGEMENT AGREEMENT – Page 4 of 5
written notice to the other party specifying the date of termination. Upon termination, the Parties
shall: (i) promptly discontinue all work, unless the termination notice directs otherwise; and (ii)
promptly return to the other party any property provided by the other party pursuant to the
Agreement. Notwithstanding termination, the Parties shall remain obligated as otherwise set forth
in this Agreement to the extent of costs or obligations to third parties incurred pursuant to the
Agreement prior to the termination.

5. Apportionment of Liability. The Commission and Division shall be responsible only for
the acts, omissions, or negligence of such agency’s own employees. The term “employee” is
defined for the purposes of this section as set forth in Idaho Code section 6-902. Nothing in this
Agreement shall extend the tort responsibility or liability of either the Commission or Division
beyond that required by the Idaho Tort Claims Act, Idaho Code section 6-901 et seq. Each party
shall be responsible for damage to property of the other party caused by its employees in the
performance of the Agreement to the extent funds are legally available therefor.

The Parties acknowledge that both the Commission and Division participate in the State of Idaho
Risk Management Program comprehensive liability plan utilizing the Retained Risk Account
(“Risk Program”). Any covered third party tort liability claim, suit or loss arising from this
Agreement shall be allocated to one or both agencies by the Division of Risk Management for
purposes of the respective loss experiences and subsequent allocation of self-insurance
assessments. If property damage arises in the performance of this Agreement and is covered by
the Risk Program, the Division of Risk Management shall charge the damage or loss to the
responsible agency’s loss history, and the responsible agency shall pay the deductible, if any. Each
of the Parties is obligated to notify the Division of Risk Management and the other agency upon
receipt of notice or in the event it has knowledge of any claim or damage arising out of this
Agreement.

If a claim or damage is not covered by the Risk Program, the responsible agency shall pay the
costs arising from such claim or damage to the extent funds are legally available therefor. If a
claim or damage arises from both agencies’ performance of the Agreement or is not allocable to
either agency, 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 duty under this Agreement
where such failure is due to unforeseeable causes beyond the Parties’ 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 any
failure to perform resulting from any order of any court or state or federal agency.

7. Governing Law and Severability. This Agreement shall be construed in accordance with
and governed 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 any
term of this Agreement is held to be invalid or unenforceable by a court, the remaining terms of
the Agreement will remain in force.

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8. Non-Waiver. Each provision herein shall be treated as a separate and independent clause,
and the unenforceability of 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 no
authority to enter into contracts or agreements on behalf of the other party. All contracts or
agreements shall be entered on behalf of the executing party or executed jointly by both Parties.

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 and
signed by both Parties.

11. Amendments. This Agreement may be extended or modified upon written agreement of
the Parties. 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 executed by their
respective representatives duly authorized so to do on the date and year written below.