20200128_ct1jo.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER RAPER
COMMISSIONER ANDERSON
COMMISSION SECRETARY
LEGAL
WORKING FILE
FROM:CURTIS THADEN
DATE:JANUARY 23,2020
RE:AVISTA UTILITIES TARIFF ADVICE NO.19-03-G
REVISION OF IPUC TARIFF NO 27,SCHEDULE 158
FRANCHISE FEE AGREEMENT WITH THE CITY OF OSBURN
BACKGROUND
On December 13,2019,Avista Corporation d/b/a Avista Utilities (Avista)submitted
Tariff Advice No.19-03-G to revise Avista's IPUC Tariff No.27 to add the City of Oburn to
Schedule 158 (Tax Adjustments Schedule -Idaho).The purpose of the filing is to pass through a
new 1%franchise fee imposed on gross revenue from the sale of natural gas to customers within
the corporate limits of the City of Osburn.The new agreement would remain in effect for
twenty-five (25)years from the effective date,unless amended in the manner set forth by the
City of Osburn Ordinance No.297.Copies of the 1)Ordinance,which sets forth the City
Franchise Agreement with the Company,and 2)the proposed revision to Schedule 158 are
attached.
The proposed franchise fee agreement was approved by the City of Osburn on November
5,2018,as authorized in the attached City of Osburn Ordinance No.297.The agreement was
accepted by Avista on December 2,2019.Avista requests an effective date for the revised tariff
of February 1,2020.
An oversight caused a delay in filing the proposed revision to the Company's tariff with
the Commission.In May/June 2018,Avista provided information to the City of Obsurn on the
process for implementing a new natural gas franchise fee.At that time,the City communicated to
Avista that they did not intend to implement a franchise fee.Months later,the City decided to
DECISION MEMORANDUM -1 -JANUARY 23,2020
move forward with the franchise fee and on November 5,2018,passed an ordinance at a city
council meeting.Avista did not receive communication of this decision.In late 2019,the City
informed Avista that a new franchise fee had been passed and inquired about the remaining
process to finalize the agreement with the Company.Avista informed the City that the Company
needed a signed copy of the agreement prior to submitting it to the Commission for approval.
On November 27,2019,the City finalized their legal review of the agreement and provided
Avista with a copy.Avista accepted the new agreement on December 2,2019.
Idaho Title 50,Chapter 3,§50-329A allows cities to establish franchise fees assessed
upon a public service provider up to one percent without the consent of the public service
provider or the approval of a majority of voters of the city voting on the question at an election.
Franchise fees up to three percent are allowed with the consent of the public service provider or
the approval of a majority of voters of the city voting on the question at an election.
STAFF RECOMMENDATION
Staff has reviewed the proposed tariff change,the franchise agreement for the City of
Osburn,and the franchise fee requirements under Idaho Title 50,Chapter 3 §50-329A.Staff
recommends that the Commission accept Avista's proposed revision to IPUC Tariff No.27,
Schedule 158.Staff recommends an effective date of February 1,2020.
COMMISSION DECISION
Does the Commission wish to accept Avista's proposed revision to IPUC Tariff No.28,
Schedule 58 with an effective date of February 1,2020?
Curtis Thaden
i:udmemos/Tariff Advice No.19-03-GE
DECISION MEMORANDUM -2 -JANUARY 23,2020
CITY OF OSBURN,IDAHO
ORDINANCE NO.297
AN ORDINANCE GRANTING AVISTA CORPORATION,d/bla AVISTA UTILI-
TIES,A WASHINGTON CORPORATION,ITS SUCCESSORS AND ASSIGNS,
THE NONEXCLUSIVE RIGHT,PRIVILEGE,AUTHORITY AND FRANCHISE
TO LOCATE,CONSTRUCT,INSTALL,OWN,MAINTAIN,REPAIR,REPLACE,
EXTEND,OPERATE AND USE FACILITIES IN,UPON,OVER,UNDER,
ALONG,AND ACROSS THE FRANCHISE AREA FOR PURPOSES OF THE
TRANSMISSION,DISTRIBUTION AND SALE OF GAS.
Avista Corporation dba Avista Utilities (Avista"),a Washington Corporation,which is au-
thorized to do business within the state of Idaho,has filed with the City of Osburn.State of Ida-
ho,(the "City")a written application for a renewal of its Franchise to tocate,construct,operate,
maintain and use such plants,works,underground pipelines,equipment and appurtenances
over,under,along and across all of City's rights of way and public property in the City for the
purposes of the transmission,distribution and sale of Gas;and the City has determined it is ín
the interest of persons and businesses in this jurisdiction to have access to Avista's services;
THEREFORE,THE CITY OF OSBURN DOES ORDAIN:
SECTION 1.0 DEFINITIONS
For the purposes of this Franchise the following terms,phrases,words and their deriva-
tions shall have the meaning given in this Section.When not Inconsistent with the context,
words used in the present tense include the future,words in the plural include the singular,and
words in the singular include the plural.Words not defined shall be given their common and or-
dinary meaning.
Avista:means Avista Corporation,dba Avista Utilities,a Washington Corporatíon,and its re-
spective successors and assigns,agents and contractors.
City.:means the City of Osburn,a municipal corporation of the State of Idaho,and its respective
successors,assigns,agents and contractors.
Commission:means the Idaho Public Utilities Commission or such successor regulatory agen-
cy having jurisdiction over investor-owned public utilities in the State of Idaho.
Days:means business days.
City of Osbum Gas Franchise Page 1 of 12 FINAL:May 14,2018
Effective Date:means the date of legal publication of this Ordinance,upon which the rights,du-
ties and obligations of this Franchise shall come into effect,and the date from which the time
requirementfor any notice,extension andlor renewal shall be measured.
Facilities:means,collectively,any and aff gas transmission,and distribution systems and ap-
purtenancesowned by Avista,now and in the future in the Franchise Area,including but not lim-
ited to,Gas plants,Gas pipes,pipelines,mains,laterals,conduits,services,regulators,valves,
meters,meter-reading devices,fences,vehicular protection devices,communicationand control
systems and other equipment,appliances,fixtures,attachments,appurtenances and other
items necessary,convenient,or in any way appertaining to any and all of the foregoing for the
purposes of transmission,distribution,storage and sale of Gas.
Franchise:means the grant by the City of rights,privileges and authority embodied in thís Or-
dinance.
Franchise Area:means the surface and space above and below all public property and rights-
of-way owned or held by the City,including,without limitation,rights-of-wayfor:
•public roads,streets,avenues,alleys,bridges,tunnels,City-owned easements,and
highways that may hereafter be fald out,platted,dedicated,acquired or improved;
and
•all City-owned utility easements dedicated for the placement and location of various
utilities,provided such easements would permit Avista to fully exercise the rights
granted under this Franchise within the area covered by the easement.
Gas:means natural,manufactured,renewable and/or mixed gases.
Maintenance,maintaining,or maintain:means,without limit,repairing,replacing,upgrading,
examining,testing,inspecting,and removing Avista Facilities,vegetation management,digging
and excavating,and restoration of affected Right-of-waysurfaces.
Parties:means City and Avista collectively.
Party:means either City or Avista individually.
Person:means a business entity or natural person.
Right-of-way:means the surface of and the space along,above,and below any street,road,
highway,freeway,bridge,tunnel,lane,sidewalk,alley,City-owned utility easement andlor right-
of-way now or hereafter held or administered by the City.
State:means the State of Idaho.
Tariff:means the rate schedules,rules,and regulations relating to utility service,filed with and
approved by the Commission in effect upon execution and throughout the term of this Fran-
chise.
City of Osbum Gas Franchise Page 2 0f 12 FINAL:May 14,2018
SECTION 2.0 GRANT OF FRANCHISE
2.1 Grant
City hereby grants to Avista the right,power,privilege and authority to enter upon all roads,
rights-of-way,streets,alleys,highways,public places or structures,lying within the Franchise
Area to locate,construct,operate and maintain its Facilities for the purpose of controlling,
transmitting and distributing Gas,as may be necessary to provide Gas service
2.2 Effective Date
This Ordinance will be effective as of the date of approval,passage and publication as required
by law.
2.3 Term
The rights,privileges and Franchise granted to Avista will extend for a term of 25 years from the
Effective Date,and shall continue year-to-year thereafter,until it is otherwise renewed for an-
other twenty-five (25)year term,or terminated by either Party,with not less than 180 days prior
written notice to the other Party.
2.4 Non-Exclusive Franchise
This Franchise is not an exclusive Franchise.This Franchise shall not prohibit the City from
granting other franchises within the Franchise Area that do not interfere with Avista's rights un-
der this Franchise.City may not,however,award a Gas Franchise to another party under more
favorable or less onerous terms than those of this Franchise without this Franchise being
amended to reflect such more favorable or less onerous terms.
2.5 Notice of City's Intent to Compete with Avista
in consideration of Avista's undertaking pursuant to this Franchise,the City agrees that in the
event the City intends to engage in the business of providing Gas service during the life of this
Franchise or any extension of this Franchise,in competition with Avista,the City will provide
Avista with six (6)months'notice of such action.
2.6 Assignment of Franchise
Avista shall have the right to assign its rights,benefits and privileges under this Franchise Any
assignee shall,within sixty (60)days of the date of any assignment,file written notice of the as-
signment with the City together with its written acceptance of all terms and conditions of this
Franchise.As permitted by federal and state law and Commission regulation,Avista shall have
the right,without notice to or consent of the City,to mortgage or hypothecate its rights,benefits
and privileges in and under this Franchise as security for indebtedness,
2.7 Franchise Taxes,Fees and Costs
Avista shall pay all permitting,license fees,costs and/or franchise fees which it might be re-
quired to pay in connection with the issuance,maintenance,existence,continuation,or use of
City of Osbum Gas Franchiso Page 3 of 12 FINAL:May i4,2018
this Franchise,to the extent permitted by state law or City ordinance now in effect or enacted
during the term of this Franchise.The City reserves the right to designate the time and manner
of payment of such fees or costs owed by Avista in connection with this Franchise To the ex-
tent that any Franchise fees or other costs are imposed on Avista,City shall impose equivalent
charges,fees or costs upon any other franchisee in a comparable business or otherwise com-
peting with Avîsta.
2.8 Franchise Fees
As compensation for the Franchise granted by this ordinance,Avista shall pay to the City an
amount equal to one percent (1%)of the annual gross revenue collected by Avista from its cus-
tomers for natural gas consumed within the City to be paid quarterly.Gross revenue will be
computed by deducting from the total natural gas billings of Avista the total net write-off of un-
collectible accounts.The City has the right to increase its Franchise fee up to three percent
(3%).by obtaining Avista's approval or the approval of a majority of the City voting on the ques-
tion 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 natural gas service provider (other than the City),who utilizes the City's Right-of-wayto
provide electric service within the City,during the term of this Franchise.If Grantee fails to pay
the Franchise fee to the City within thirty (30)days of the end of each calendar quarter,Grantee
shall pay a penalty in the amount of five percent (5%)of the amount due.
SECTION 3.0 AVISTA'S OPERATIONS AND MAINTENANCE
3.1 Compliance with Laws,Regulations,Codes and Standards
in carrying out any authorized activities under the privileges granted by this Franchise,Avista
shall rneet accepted industry standards and codes and shall comply with all applicable laws,
regulations and ordinances of any governmental entity with jurisdiction over Avista's Facilities in
the Franchise Area.This includes all applicable,laws,regulations and ordinancesexisting as of
the Effective Date or may be subsequently enacted by any governmental entity with jurisdiction
over Avista's operations within the Franchise Area The City shall have the tight to make and
enforce reasonable rules and regulations pertaining to the conduct of Avista's operationswithin
the Franchise Area.Prior to the adoption of any new rule,procedure or policy.Avista shall be
provided a written draft document for comment with a response period of not less than thirty
days Service shall be suppiled to the City and its inhabitants in accordance with Avista's rules
and regulations and Tariffs currently or subsequently filed with and approved by the Commis-
sion.
3.2 Facility Location by Avista and Non-Interference
Avista shall have the discretion to determine the placement of its Facilities as may be necessary
to provide safe and reliable Gas service,subject to the following non-interference requirements
City of Osbum Gas Franchise Page 4 of 12 FINAL:May 14.2018
All construction,installation,repair or relocation of Avista's Facilities performed by Avista in the
Franchise Area will be done in such a manner as not to interfere with the construction and
maintenance of other utilities,drains,drainage and irrigation ditches and structures,and City-
owned property within the Franchise Area.
3.3 Facility Location Information
Avista shall provide the City,upon the City's reasonable request,Facility location information in
electronic or hard copy showing the location of its Facilities at specific locations within the Fran-
chised Area,to the extent such information is reasonably available.Avista does not warrant the
accuracy of any such Facility location information provided and,to the extent the location of Fa-
cilities are shown,such Facilities may be shown in their approximate location.With respect to
any excavations within the Franchise Area undertaken by or on behalf of Avista or the City,
nothing stated in this Franchise is intended (nor shall be construed)to relieve either party of
their respective obligations arising under the State one-call law with respect to determining the
location of existing underground utility facilities in the vicinity of such excavations prior to com-
mencing work.
3.4 Vegetation Management -Removal of TreesNegetation Encroachment
The right of Avista to maintain its Facilities shall include the right,as exercised in Avista's pro-
fessional discretion to minimize the likelihood that encroaching (either above or below the
ground)vegetation can interfere with or limit access to Avista's Facilities,or pose a threat to
public safety and welfare.Avista or its agents may,without recourse or payment of compensa-
tion,accordingly remove or limit the growth of vegetation which encroaches upon its Facilities
andlor Gas transmission and distribution corridors within the Franchise Area.
3.5 Right of Excavation
For the purpose of implementing the privileges granted under this Franchise,and subject to the
conditions described herein.Avista is authorized to make any necessary excavations in,under
and across the streets,alleys,roads,rights-of-way and public grounds within the Franchise Ar-
ea.Such excavation shall be carried out with reasonable dispatch and with as little interference
with or inconvenience to the public as may be feasible.Avista shall remove all debris stemming
from excavation and construction.
Whenever Avista,its successors or assigns shall excavate in or obstruct any of the streets,alley
or rights-of-wayof the City for the purposes aforesaid,the street(s),alley(s),or right-of-way sur-
face shall be reasonably restored,by Avista and to standards mutually agreed upon by the City
and Avista,as soon as feasible after work is completed.
3.6 Emergency Work
City of Osburn Gas Franchise Page 5 of 12 FINAL:May 14,2018
In the event of an emergency requiring immediate action by Avista to protect the public health
and safety or for the protection of its Facilities,or the property of the City or other persons in the
Franchise Area,Avista may immediately proceed with excavation or other Right-of-way work,
with concurrent notice to the City to the extent possible.
SECTION 4.0 RESERVATIONOF CITY'S RIGHTS AND POWERS
4.1 Reservation of Right
The City,in granting this Franchise,does not waive any rights which it may not have or may
subsequently acquire with respect to road rights-of-way or other property of City under this
Franchise,and this Franchise shall not be construed to deprive the City of any such powers,
rights or privlieges which it now has or may hereafter acquire to regulate the use of and to con-
trol the City's roads,rights-of-way and other public property covered by this Franchise Nothing
in the terms of this Franchise shall be construed or deemed to prevent the City from exercising
at any time and any power of eminent domain granted to it under the laws of this State.
4.2 Necessary Construction/Maintenance by City
The construction,operation and maintenance of Avista's Facililies authorized by this Franchise
shall not preclude the City,its agents or its contractors,from grading,excavating,or doing other
necessary road work contiguous to Avista's Facilities;provided that Avista shall be given not
less than ten (10)business days'notice of said work,except in events of emergencywhen there
exists an unforeseen and substantial risk or threat to public health,safety,welfare,or waste of
resources,in which case the City will make reasonable efforts to contact Avista prior to doing
said work;and provided further that the City,its agents and contractors,shall be liable for any
damages,including any consequential damages to third parties,caused by said work to any Fa-
cilities belonging to Avista.
4.3 Expansion of Avista's Facilities
Facilities in the City's Franchise Area that are incidental to the Franchise Area,or that have
been,or are at any future time acquired,newly constructed,leased,or utilized in any manner by
Avista shall be subject to all provisions of this Franchise.
4.4 Change of Boundaries of the City
Any subsequent additions or modifications of the boundaries of the City,whether by annexation,
consolidation,or otherwise,shall be subject to the provisions of this Franchise as to all such ar-
eas.The City shall notify Avista of the scope of any change of boundaries not less than thirty
(30)days prior to such change becoming effective or in accordance with applicable state laws,
and shall affirm,authorize and ratify all prior installatlons authorized by permits or other action
not previously covered by this Franchise.
City of Osburn Gas Franchise Page 6 of 12 FINAL:May 14,2018
4.5 Removal of Abandoned Facilities
During the Tem·l of this Franchise,or upon a revocation or non-renewal of this Franchise,the
City may direct Avista to remove designated abandoned Facilities from the Franchise Area at its
own expense and as soon as practicable,but only where such abandoned Facilities constitute a
demonstrated threat to public health and safety.Avista shall not be required to remove,or pay
for the removal of facilities it has previously abandoned to another franchisee,or utility under a
joint use agreement,or Person granted permission to access Avista's facilities.
4.6 Vacation of Properties by City
if,at any time,the City shall vacate any road,right-of-way or other public property which is sub-
ject to rights granted by this Franchise,such vacation shall be subject to the reservation of a
perpetual easement to Avista for the purpose of constructing,reconstructing,operating,repair-
ing,upgrading and maintaining Avista's Facilities on the affected property.The City shall,in its
vacation procedure,reserve and grant said easement to Avista for Avista's Facilities and shall
also expressly prohibit any use of the vacated properties which will interfere with Avista's full en-
joyment and use of said easement.
SECTION 5.0 RELOCATION OF AVISTA'S FACILITIES
5.1 Relocation of Facilities Requested by City
Upon request of the City,Avista shall relocate its Facilities as necessary within the Franchise
Area as specifically designated in design plans that are no less than sixty (60)percent complete
by the City for such purpose.For purposes of this provision,all reasonable efforts shall be made
by the City,with Input from Avista,to minimize the impacts of potential relocation.The City shall
provide Avista reasonable notice of any intended or expected requirement or request to relocate
Avista's Facilities.Said notice shall not be less than ninety (90)calendar days prior to any such
relocation and,depending on the circumstances,may be greater than one hundred twenty (120)
calendar days if necessary to allow Avista sufficient time to arrange for relocation.In in cases of
emergency,or where not othenvise reasonably foreseeable by the City,the notice requirements
of this Section may be shortened by discussion and agreement between the Parties.The City
shall use reasonable efforts to cause any such relocation to be consistent with any applicable
long-term development plan(s)of the City.
In the event a relocation forces Avista off City's existing Public Right(s)of Way then the City
shall accommodate such relocation by securing an acceptable,alternate location for utilities and
removing any obstructions,including,without limitation,trees,vegetation or other objects that
may interfere with the lastallation,operation,repair,upgrade or maintenance of Avista's Facifi-
ties on the affected Property.
If the City requires the subsequent relocation of any of Avista's Facilities within five (5)years
from the date of relocation of such Facilities or installation of new Facilities,regardless of the
City of Osbum Gas Franchise Page 7 of 12 FINAL:May 14,2018
cause for either the initial or subsequent relocation,the City shall bear the entire cost of such
subsequent relocation.
Avista agrees to relocate alt Facilities promptly within a reasonable time.Upon notice from the
City,the parties agree to meet and determine a reasonable relocation time,which shall not ex-
ceed the time normally needed for construction projects of the nature of the City's relocation re-
quest unless otherwise mutually agreed.
Notwithstandingthe above.Avista shall not be required to relocate facilities of other entities that
were abandoned to another franchisee.Such relocation of these types of facilities shall be ac-
cordance with Section 5.2 below.
This Section shall not apply to Facilities in place pursuant to private easement held by Avista,
regardless of whether such Facilities are also located within the Franchise Area.In the event
the City requests relocation of Facilities that are in place pursuant to an existing easement,said
relocation shall be treated in the same manner as a relocation requested by third parties under
Section 5.2,below,with the City bearing the expense of relocation.
5.2 Relocation of Facilities Requested by Third Parties
City acknowledges that Avista is obligated to provide gas service and related line extension or
relocation of Facilities for the benefit of its customers and to require compensationfor such ser-
vices on a non-preferential basis in accordance with applicable Tariffs.
If Facilities are to be relocated at the request of or for the primary benefit of a third party,the
City shall not require Avista to relocate its Facilities until such time as a suitable location can be
found and the third party has entered into an agreement to reimburse Avista for its reasonable
costs of relocation
5.3 Availability of Other Funds
in the event federal,state or other funds are available in whole or in part for utility relocating
purposes,the City agrees to use reasonable efforts to apply for such funds,provided such funds
do not interfere with the City's right to obtain the same or similar funds,or otherwise create any
expense or detriment to the City.The City may recover a1\costs,including internal costs,asso-
clated with obtaining such funds.
SECTION 6.0 INDEMNITY
6.1 Indemnification of City
Avista agrees to defend and indemnify the City,its appointed and elected officers and employ-
ees or agents,from any and all liabilities,claims,causes of action,tosses,damages and ex-
penses,including costs and reasonable attorney's fees,that the City may sustain,incur,be-
come liable for,or be required to pay,as a consequence of or arising from the negligent acts or
omissions of Avista,its officers,employees or agents in connection with Avista's obligations un-
City of Osbum Gas Franchise Page 8 of 12 FINAL:May 14,2018
der this Franchise;provided,however,that this indemnification provision shall not apply to the
extent that said liabilities,claims,damages and losses were caused by or result from the negli-
gence of the City,elected officers and employees or agents.
6.2 Indemnification of Avista
To the extent permitted by law,City agrees to defend and indemnify Avista,its officers and em-
ployees,from any and all liabilities,claims,causes of action,fosses,damages and expenses,
including costs and reasonable aftomey's fees,that Avista 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 City,its appointed and elected officers and employees or agents in connection with City's
obligations under this Franchise;provided,however,that this indemnification provisíon shall not
apply to the extent that said liabilities,claims,damages,losses and so forth were caused by or
result from the negligence of Avista,its employees or agents.
SECTION 7.0 FRANCHISE DISPUTE RESOLUTION
7.1 Non-walver
Failure of a Party to declare any breach or default of this Franchise immediately upon the occur-
rence thereof,or delay In taking any action in connection therewith,shall not waive such breach
or default,but the Party shall have the right to declare any such breach or default at any time.
Failure of a Party to declare one breach or default does not act as a waiver of the Party's right to
declare another breach or default.In addition,the pursuit of any right or remedy by the City shall
not prevent the City from thereafter declaring a revocation and forfeiture for breach of the condi-
tions of the Franchise.
7.2 Dispute Resolution by the Parties
Disputes regarding the interpretation or execution of the terms of this Franchise that cannot be
resolved by department counterparts representing the Parties,shall be submitted to the City's
Attomey and an attomey representing Avista for resolution.If a mutually satisfactory or timely
resolution cannot then be reached by the above process,prior to resorting to a court of compe-
tent jurisd\ction,the Parties shall submit the dispute to a non-binding alternate dispute resolution
process agreed to by the Parties.
7.3 Right of Enforcement
No provision of this Franchise shall be deemed to bar the right of the City or Avista to seek judi-
cial relief from a violation of any provision of the Franchise to recover monetary damages for
such violations by the other party or to seek enforcement of the other Party's obligations under
this Franchise by means of specific performance,injunctive relief or any other remedy at law or
in equity pursuant to Section 7.4.Any litigation between the City and Avista arising under or re-
garding this Franchise shall occur,If in the state courts,in a court of competent jurisdiction,and
City of Osburn Gas Franchise Page 9 of 12 FINAL:May 14,2018
if in the federal courts,in the United States District Court for the District of Idaho.
7.4 Attorneys'Fees and Costs
Each Party shall pay for its own attomeys'fees and costs incurred in any dispute resolution pro-
cess or legal action arising out of the existence of this Franchise.
SECTION 8.0 GENERAL PROVISIONS
8.1 Franchise as Contract,No Third Party Beneficiaries
This Franchise is a contract between the Parties and binds and benefits the Parties and their
respective successors and assigns,This Franchise does not and is not intended to confer any
rights or remedies upon any persons,entities or beneficiaries other than the Parties.
8.2 Force Majeure
In the event that Avista is delayed in or prevented from the performance of any of its obligations
under the Franchise by circumstances beyond Avista's control (Force Majeure)including,with-
out limilation,third party labor disputes,fire,explosion,flood,earthquake.power outage,acts of
God,war or other hostilities and civil commotion,then Avista's performance shall be excused
during the period of the Force Majeure occurrence.Avista will use all commercially reasonable
efforts to minimize the period of the disability due to the occurrence Upon removal or termina-
tion of the occurrence Avista will promptly resume performance of the affected Franchise obliga-
tions in an orderly and expeditious manner,
8.3 Prior Franchises Superseded
As of the Effective Date this Franchise shall supersede all prior gas franchises for the Franchise
Area previously granted to Avista or its predecessors by City,and shall affirm,authorize and rat-
ify all prior installations authorized by permits or other action not previously covered by fran-
chise.Termination of the prior Franchise shall not,however,relieve the Parties from any obliga-
tions which accrued under said Franchise prior to its termination,including but not limited to,
any outstanding indemnity,reimbursement or administrativefee payment obligations.
8.4 Severabinty
The Franchise is granted pursuant to the laws of the State of Idaho relating to the granting of
such rights and privileges by City.If any article,section,sentence,clause,or phrase of this
Franchise is for any reason held illegal,invalid,or unconstitutional,such invalidity shall not af-
feet 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 Avista.
8.5 Changes or Amendments
Changes or amendments to this Franchise shall not be effective until lawfully adopted by the
City and agreed to by Avista.
City of Osbum Gas Franchise Page 10 of 12 FINAL:May 14,2018
8.6 Supremacy and Governing Law
This Agreement shall be interpreted,construed and enforced in all respects in accordance with
the laws of the State of Idaho.In the event of any conflict between this Franchise and any City
ordinance,regulation or permit,the provisions of this Franchise shall control.In the event of a
conflict between the provisions of this Franchise and Avista's applicable Tariff on file with the
Commission,the Tariff shall control.
8.7 Headings
The headings or titles in this Franchise are for the purpose of reference only and shall not in any
way affect the interpretation or construction of this Franchise
8.8 Acceptance of Franchise.
Avista shall,within thirty (30)days after passage of this Ordinance,file with the City Clerk,its
acceptance of the terms and conditions of this Franchise.
8.9 Abandonmentor Suspension of Franchise Rights and Obligations
Avista may at any time abandon the rights and authonties granted hereunder,provided that six
(6)months'written notice of intention to abandon is given to City,in addition,pursuant to Sec-
tion 8.6 and in the event a conflict exists between the terms of this Franchise and Avista's Tariff
with the Commission that cannot be resolved.Avista may suspend or abandon the rights and
obligations of this Franchise upon reasonable notice to the City
8.10 Franchise Effective Date
The Effective Date of this Franchise shall be November 5'",2018,after passage,approval and
legal publication of this ordinance as provided by law,and provided that it has been duly ac-
cepted by Avista as specified above.
PASSED by the City Council on November 56,2018 after final reading of Ordinance 297 as
published in full on September 29*,2018.
ATTEST:
City Clerk,City of Osburn
Mayor.City of Osbum
APPROVED on November 56,2018
Cuy of Osbum Gas Franchise Page 11 of 12 FIFtAL:May 14.2018
Ninth Revision Sheet 158
Canceling
i P.U.C.No.27 Eighth Revision Sheet 158 158
AVISTA CORPORATION
d/bla Avista Utilities
SCHEDULE 158
TAX ADJUSTMENT SCHEDULE -IDAHO
The rate schedule of the Company for natural gas service furnished in Idaho do not include
any portion of municipal occupation,business,excise or use of the streets,ta×es or charges.In order
to reimburse the Company for such taxes or charges,amounts equivalent to such taxes or charges
where now imposed,or which may hereafter be imposed,will be billed by the Company to its
customers as set forth below.
APPLICABLE:
To all charges for natural gas service rendered pursuant to this tariff within the jurisdiction
imposing a tax or charge,as provided in Rule 3 of the Rules and Regulations included in this tariff.
TAX ADJUSTMENT:
The rates and charges named in this tariff shall be proportionatelyincreased by an adjustment
equivalent to the amount of the tax or charge imposed by the jurisdiction and effective as listed below:
Idaho Municipality Ordinance Date Ordinance Effective Charge*
Village of Bonners Ferry Ord.No.209 July 2,1963 3%franchise fee
City of Coeur d'Alene Ord.No.2518 July 1,1993 5%franchise fee
City of Dalton Gardens Ord.No.168 February 1,2005 1%Franchise fee
as arnended by Ord.No.171
City of Dover Ord.No.53 October 1,2000 1%franchise fee
City of Hauser Ord.No.111 May 1,1999 1%franchise fee
City of Hayden Ord.No.392 October 1,2005 1%franchise fee
City of Hayden Lake Ord.No.125 January 1,1995 3%franchise fee
as amended by Ord.No.131
City of Kellogg Ord.No.556 October 1,2012 1%franchise fee
City of Kootenai Ord.No.112 August 1,1996 1%franchise fee
City of Lewiston Ord,No.4256 January 1,2000 1%franchise fee
City of Moscow Ord.No.2006-06 June,1 2006 3%franchise fee
City of Mullan Ord.No.309A May 1,1997 1%franchise fee
City of Osburn Ord.No.297 February 1,2020 1%franchise fee (N)
City of Ponderay Ord.No.3-17 November 1,1996 1%franchise fee
City of Post Falls Ord.No.1015 March 1,2003 1%franchise fee
City of Rathdrum Ord.No.377 November 1,1996 1%franchise fee
City of Sandpoint Ord.No.1076 March 1,2003 1%franchise fee
City of Spirit Lake Ord.No.510 December 1,2007 1%franchise fee
City of Wallace Ord.No.95-07 January 1,1996 1%franchise fee
*Federal bills excluded
Issued December 13,2019 Effective February 1,2020
issued by Avista Utilities
Patrick Ehrbar,Director of Regulatory Affairs