20220601_ct2jo.pdf

IDECISION MEMORANDUM
TO:COMMISSIONER ANDERSON
COMMISSIONER CHATBURN
COMMISSIONER HAMMOND
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL
FROM:CURTIS THADEN
DATE:JUNE 1,2022
RE:AVISTA UTILITES TARIFF ADVICE NO.22-02-G
REVISION TO IPUC TARIFF NO.27 (NATURAL GAS SERVICE),
SCHEDULE 158 FRANCHISE AGREEMENT WITH THE CITY OF
PINEHURST
BACKGROUND
On May 13,2022,Avista Corporation d/b/a Avista Utilities (Avista)submitted Tariff
Advice No.22-02-G to revise Avista's IPUC Tariff No.27 to add the City of Pinehurst to
Schedule 158 (Tax Adjustments Schedule -Idaho).The purpose of the filing is to pass througha
new 1%franchise fee imposed on gross revenue from the sale of natural gas to customers within
the corporate limits of the City of Pinehurst.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 Pinehurst Ordinance No.2022-239.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 approvedby the City of Pinehurst on April 13,
2022,as authorized in the attached City of Pinehurst Ordinance No.2022-239.The agreement
was accepted by Avista on April 19,2022.Avista requests an effective date for the revised tariff
of July 1,2022.
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 has reviewed the proposed tariff change,the franchise agreement for the City of
Pinehurst,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 with an effective date of July 1,2022.
COMMISSION DECISION
Does the Commission wish to accept Avista's proposed revision to IPUC Tariff No.27,
Schedule 158 with an effective date of July 1,2022?
Curtis Thaden
udmemos/Decision Memo Avista Advice No.22-02-G Schedule 158
Tenth RevisionSheet 158
Canceling
I.P.U.C.No.27 Ninth Revision Sheet 158
AVISTA CORPORATION
d/bla Avista Utilities
SCHEDULE 158
TAX ADJUSTMENT SCHEDULE -IDAHO
The rate schedule of the Companyfor natural gas service furnished in Idaho do not include
any portion of municipal occupation,business,excise or use of the streets,taxes or charges.In order
to reimbursethe Company for such taxes or charges,amounts equivalentto 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 providedin Rule 3 of the Rules and Regulationsincluded in this tariff.
TAX ADJUSTMENT:
The rates and charges named in this tariff shall be proportionatelyincreased by an adjustment
equivalentto the amount of the tax or charge imposed by the jurisdiction and effectiveas listed below:
Idaho Municipality Ordinance Date OrdinanceEffective Charge*
Village of Bonners Ferry Ord.No.209 July 2,1963 3%franchisefee
City of Coeurd'Alene Ord.No.2518 July 1,1993 5%franchise fee
City of Dalton Gardens Ord.No.168 February 1,2005 1%Franchise fee
as amended 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%franchisefee
City of Lewiston Ord.No.4256 January 1,2000 1%franchisefee
City of Moscow Ord.No.2006-06 June,1 2006 3%franchisefee
City of Mullan Ord.No.309A May 1,1997 1%franchisefee
City of Osburn Ord.No.297 February 1,2020 1%franchisefee
City of Pinehurst Ord.No.2022-239 July 1,2022 1%franchisefee
City of Ponderay Ord.No.3-17 November1,1996 1%franchise fee
City of Post Falls Ord.No.1015 March 1,2003 1%franchise fee
City of Rathdrum Ord.No.377 November1,1996 1%franchise fee
City of Sandpoint Ord.No.1076 March 1,2003 1%franchise fee
City of Spirit Lake Ord.No.510 December1,2007 1%franchise fee
City of Wallace Ord.No.95-07 January 1,1996 1%franchise fee
*Federal bills excluded
issued May 13,2022 Effective July 1,2022
Issued by Avista Utilities
Patrick Ehrbar,Director of RegulatoryAffairs
CITYOF PINEHURST,SHOSHONE COUNTY,IDAHO
ORDINANCENO.2022-239
AN ORDINANCE GRANTINGAVISTA CORPORATION,d/bla AVISTA UTILI-
TIES,A WASHINGTONCORPORATION,ITS SUCCESSORS AND ASSIGNS,
THE NONEXCLUSIVERIGHT,PRIVILEGE,AUTHORITYAND FRANCHISE TO
LOCATE,CONSTRUCT,INSTALL,OWN,MAINTAIN,REPAIR,REPLACE,EX-
TEND,OPERATE AND USE FACILITIESIN,UPON,OVER,UNDER,ALONG,
AND ACROSS THE FRANCHISE AREA FOR PURPOSES OF THE TRANSMIS-
SION,CONTROL,SALE AND DISTRIBUTIONOF ELECTRICITYAND GAS
WITHINTHE CITY.
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 Pinehurst,County of
Shoshone,State of Idaho (the "City")a written application for a renewal of its Franchise to locate,
construct,operate,maintain and use such poles,wires,plants,works,underground cables,pipe-
lines,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,control and distribution and sale
of electricity and Gas;and the City has determined it is in the interest of persons and businesses
in this jurisdiction to have access to Avista's services;
THEREFORE,THE CITYOF PINEHURST 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 ordinary
meaning.
Avista:means Avista Corporation,dba Avista Utilities,a Washington Corporation,and its re-
spective successors,assigns,agents and contractors.
g means the City of Pinehurst,a political subdivision of the State of Idaho and a municipal
corporation,and its respective successors,assigns,agents and contractors.
Commission:means the Idaho Public Utilities Commission or such successor regulatory agency
having jurisdiction over investor-owned public utilities in the State of Idaho.
Days:means business days.
City of SHOSHONEElectric and Gas Frandifse Page i of 15 Rev August 29,2017
Effective Date:means the date of legal publication of this Ordinance,upon which the rights,
duties and obligations of this Franchise will come into effect,and the date from which the time
requirement for any notice,extension and/or renewal will be measured.
Electric Facilities:means,collectively,any and all electric transmission,and distribution systems
and appurtenances owned by Avista,now and in the future in the Franchise Area,including but
not limited to poles,towers,overhead and underground wires and cables,conduits,services,
vaults,transformers,meters,meter-reading devices,fences,vehicular protection devices,com-
munication and control systems and other equipment,appliances,fixtures,attachments,appur-
tenances and other items necessary,convenient,or in any way appertaining to any and all of the
foregoing for the purposes of transmission,distribution,and control of electricity,whether the
same be located above or below ground.
Facilities:means,collectively,any and all Electric Facilities and Gas Facilities.
Franchise:means the grant by the City of rights,privileges and authority embodied in this Ordi-
nance.
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-way for:
public roads,streets,avenues,alleys,bridges,tunnels,City-owned easements,and
highways that may hereafter be laid 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 permil Avista to fully exercise the rights
granted under this Franchise within the area covered by the easement;and.
any other specifically designated City-owned property.
means natural,manufactured,renewable and/or mixed gases,
Gas Facilities:means,collectively,any and all gas transmission,and distribution systems and
appurtenances owned by Avista,now and in the future in the Franchise Area,including but not
limited to,Gas plants,Gas pipes,pipelines,mains,laterals,conduits,services,regulators,valves,
meters,meter-reading devices,fences,vehicular protection devices,communication and 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.
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-way surfaces.
Parties:means City and Avista collectively.
Party;means either City or Avista individually.
City of PINEHURSTElectric and Gas Franchise Page 2 of 15 Rev November13,2021
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 and/or right-
of-way now or hereafter held or administered by the City.
State:means the State of Idaho.
T_ariff¿means the rate schedules,rules,and regulations relating to utility service,filed with and
approved by the Commission during the term of this Franchise in effect upon execution and
throughout the term of this Franchise.
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,híghways,public places or structures,bridges,tunnels,and City-
owned easements lying within the Franchise Area to locate,construct,operate and maintain its
Facilities forthe purpose of controlling,transmitting and distributing electricity and/or Gas,as may
be necessary to provide electric and/or 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
EffectiveDate,and shall continue year-to-yearthereafter,until it is otherwise renewed for another
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-Exclusíve Franchise
This Franchise is not an exclusive Franchise.This Franchise shall not prohibit the City from grant-
ing other franchises within the Franchise Area that do not interfere with Avista's rights under this
Franchise.City may not,however,award electric and/or 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 Electric and lor 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.
City of PINEHURSTElectric and Gas Franchise Page 3 of 15 Rev November13,2021
2.6 Assignment of Franchise
Avista shall have the right to assign its rights,benefits and privileges under this Franchise.Any
assignee shall,within thirty (30)days of the date of any assignment,file written notice of the
assignment 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 required
to pay in connection with the issuance,maintenance,existence,continuation,or use of this Fran-
chise,to the extent permitted by state law or City ordinance now in effect or enacted during the
term of this Franchise.Avista shall pay franchise fees as determined by Idaho Code Section 50-
329A,as it may be amended from time to time;pursuant to I.C.§50-329A,the franchise fee shall
not exceed one percent (1%)of Avista's gross revenues derived from service to customers fo-
cated within City.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 extent 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 competing with Avista.
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 Franchíse,Avista
shall meet accepted industry standards and codes and shall comply with all applicable laws,reg-
ulations and ordinances of any governrnental entity with jurisdiction over Avista's Facilities and
operations in the Franchise Area.This íncludes all applicable,laws,regulations and ordinances
existing 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 right to
make and enforce reasonable rules and regulations pertaining to the conduct of Avista's opera-
tions within the Franchise Area.Prior to the adoption by the City of any new rule,procedure or
policy affecting Avista's operations under the Franchise,the City shall provide to Avista a written
draft document for comment with a response period of not less than thirty days.Service shall be
supplied to the City and its inhabitants in accordance with Avista's rules and regulations and Tar-
iffs currently or subsequently filed with and approved by the Commission.
3.2 Facility Location by Avista and Non-Interference
Avista shall have the discretion to determine the placement of íts Facilities as may be necessary
to provide safe and reliable electric and Gas service,subject to the following non-ínterference
requirements.All construction,installation,repair or relocation of Avista's Facilities performed by
City of PINEHURSTElectric and Gas Franchise Page 4 of 15 Rev November 13,2021
Avista in the Franchise Area will be done in such a manner as not to interfere with the existing
construction and maintenance of other utilities including,drains,drainage ditches and structures,
irrigation ditches and structures located therein,nor with the grading or improvementof,and City-
owned property within the Franchise Area.
3.3 Facility Location Information
Avista shall provide the City,upon the Cíty'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 respectto 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 respec-
tive 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 commencíng work.
3.4 Vegetation Management -Trimming/Removal of Trees/Vegetation Encroachment
State law requires electric utilities to comply with the National Electric Safety Code,including the
guidance in the Code forthe trimming or removalof vegetation interfering or potentially interferíng
with energized power lines.The right of Avista to maintain its Facilities and appurtenances under
this Franchise shall accordingly include the right,as exercised in Avista's professional discretion
to minimize the likelihood that encroaching (either above or below the ground)vegetation can
interfere with or limit access to Avista's Facilities,lead to power outages,or pose a threat to public
safety and welfare.Avista or its agents may,without recourse or payment of compensation,inhibit
or limit the growth of,prune,or remove any trees and vegetation which overhangs or encroaches
upon its Facilities and/or Gas transmission and distribution corridors within the Franchise Area,
whether such trees or vegetation originate within or outside of the Right-of-way.Nothing con-
tained in this Section shall prevent Avista,when necessary from pruning or removing any trees
which overhang the Franchise Area and may interfere with Avista's Facilities.Where practicable
Avista will give reasonable advance notice to the City of Avista's intent to cut or remove trees
from the Right-of-way.
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 reasonably necessary excavations
in,under and across the streets,alleys,roads,Rights-of-way and public grounds within the Fran-
chise Area.Such excavation shall be carried out with reasonable dispatch and with as little inter-
ference with or inconvenience to the public as may be feasible.Avista shall remove all debris
stemming from excavation and construction.The Right-of-way surface shall be restored by Avista
to its original state of improvement after excavation,in accordance with applicable City and Avista
specifications.
City of PINEHURSTElectric and Gas Franchise Page 5 of 15 Rev November13,2021
3.6 Emergency Work
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 Ríght-of-way work,
with concurrent notice to the City to the extent possible.
SECTION 4.0 RESERVATION OF CITY'S RIGHTS AND POWERS
4.1 Reservation of Right
The City,in granting this Franchise,does not waive any rights which it may now have or may
subsequently acquire with respect to road rights-of-way or other property of the City under this
Franchise,and this Franchise shall not be construed to deprive the City of any such powers,rights
or privileges which it now has or may hereafter acquire to regulate the use of and to control 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 Facilities authorized by this Franchise
shall not preclude the City,its agents or its contractors,from grading,e×cavating,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 saíd work,except in events of emergency when there exists
an unforeseen and substantial risk or threat to public health,safety,welfare,or waste of re-
sources,in which case the City will make reasonable efforts to contact Avista príor to doing said
work;and provided further that the City,its agents and contractors,shall be liable for any dam-
ages,including any consequential damages to third parties,caused by said work to any Facilities
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
areas.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 installations authorized by permits or other action not
previously covered by this Franchise.
City of PINEHURSTElectric and Gas Franchise Page 6 of 15 Rev November13,2021
4.5 Removal of Abandoned Facilities
During the Term 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 subject
to rights granted by this Franchise,such vacation shall be subject tothe reservation of a perpetual
easement to Avista for the purpose of constructing,reconstructing,operating,repaíring,upgrad-
ing and maintaining Avista's Facilities on the affected property.The City shall,in its vacation pro-
cedure,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 enjoyment and use
of said easement.
4.7 Pole Attachments by City
City shall be permitted,upon reasonable notice to Avista to attach its traffic control fire and police
communicationssignal cables to Avista's poles in the Franchise Area,provided that the City signs
and meets all conditions of a Joint Use Master License Agreement ("Joint Use Agreement")with
Avista.Per the Joint UseAgreement,Avista will not charge a pole rental fee for City's non-revenue
producing pole attachments that are dedicated for the public's benefit.All pole attachments by
the City are at the City's own risk and must be attached in strict accordance with standard safety
practices,codes and Avista specifications.
If there is not sufficient space available on Avista's structures such structures may be changed,
altered,or rearranged at the expense of the City so as to provide proper clearance and capacity
for City facilities.Such City facilities shall be subject to removalor repositioning by Avista at the
City's expense to the extent necessary for utility worker safety and the proper construction,
maintenance,operation or repair of Avista's Facilities and appurtenances.City assumes all re-
sponsibility for the installation and maintenance of City's facilities installed on Avista's Facilities.
SECTION 5.0 RELOCATION OR CONVERSION OF AVISTA'SFACILITIES
5.1 Relocation of Facilities Requested by City
Upon written request of the City,Avista shall relocate its Facilities as necessary within the Fran-
chise Area or other City-owned property as specifically designated in design plans that are no
less than sixty (60)percent complete by the City for such purpose.For purposesof this provision,
all reasonable efforts shall be made by the City,with input from Avista,to minímize the impacts
City of PINEHURSTEledríc and Gas Franchise Page 7 of 15 Rev November13,2021
of potential relocation.The City shall provide Avista reasonable notice of any intended or ex-
pected 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 cases of emergency,or where not otherwise reasonably fore-
seeable 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 reloca-
tion to be consistent with any applicable long-term development plan(s)of the City.If,atany time,
the City shall cause or require the alteration or the improvementof any road,right of way or other
public property which is subject to rights granted by this Franchise 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.,Avista shall,upon written notice from the City change the location or re-
adjust 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.
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 re-
moving any obstructions,including,without limitation,trees,vegetation,or other objects that may
interfere with the installation,operation,repair,upgrade or maintenance of Avista's Facilities on
the affected Property.
If the City requires the subsequent relocation of any of Avista's Facilities within three (3)years
from the date of relocation of such Facilities or installation of new Facilities,regardless of the
cause for either the initial or subsequent relocation,the City shall bear the entire cost of such
subsequent relocation.
Avista agrees to relocate all 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 exceed
the time normally needed for construction projects of the nature of the City's relocation request
unless otherwise mutually agreed.
Notwithstanding the above,Avista shall not be required to relocate facilities of other entities that
were (i)granted access to Avista's Facilities through a Joint Use Agreement or (ii)abandoned to
another franchisee.Such relocation of these typesof facilities shall be in accordance 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 relo-
cation shall be treated in the same manner as a relocation requested by third parties under Sec-
tion 5.2,below,with the City bearing the expense of relocation.
City of PINEHURSTElectric and Gas Franchise Page 8 of 15 Rev November13,2021
5.2 Relocation of Facilities Requested by Third Parties
City acknowledges that Avista is obligated to provide electric and gas service and related line
extension,or relocation or conversion of Facilities for the benefit of its customers and to require
compensation for such services 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 Availabilityof 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 all costs,including internal costs,asso-
ciated with obtaining such funds.
5.4 Temporary Relocation of Electric Facilities Requested by Third Parties
At the request of any Person holding a valid permit or other written permission from the City,and
upon reasonable advance notice and payment by the permit holder of Avista's expenses of such
temporary change,Avista will temporarily raise,Iower or remove its Electric Facilities as neces-
sary to accommodate a permittee of the City desiring to move over-sized structures or equipment
along or across the Right-of-Way in the Franchise Area.
5.5 Conversion of Electric Distribution Facilities
City,subject to applicable laws,rules,regulations and tariffs,may request that Avista convertfrom
above ground to below ground wires,for the distribution of electricity underground after joint re-
view with Avista and mutual agreement that such installation is feasible,practical and required for
the public interest and safety.The incremental cost of such conversion of existing Electric Facil-
ities shall be borne and paid by the City or other party requesting the same,subject to law and
such rules,regulations,and Tariffs of the Commission,lt is expressly agreed by both Parties that
this Section 5.5 does not apply to any conversion of electric transmission (69KV or above)infra-
structure.
SECTION 6.0 INDEMNITY
6.1 Indemnification of City
Avista agrees todefend and indemnify the City,its appointed and elected officersand employees,
officials,representatives or agents,from any and all liabilities,claims,causes of action,losses,
damages and expenses,including costs and reasonable attorney's fees,that the City may sus-
tain,incur,become 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
City of PINEHURSTElectric and Gas Franchise Page 9 of 15 Rev November13,2021
obligations under 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 negligence of the City,or its appointed and elected officers and employees,officiais,repre-
sentatives or agents,
6.2 Indemnification of Avista
To the extent permitted by law,City agrees to defend and indemnify and hold harmlessAvista,its
officersand employees,from any and all liabilities,claims,causes of action,fosses,damages and
expenses,including costs and reasonable attorney'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 omis-
sions of the City,its appointed and elected officials and employees or agents in connection with
City's obligations under this Franchise;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 resun 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 and terminating this 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
Attorney and an attorney 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 competent
jurisdiction,the Parties shall submit the dispute to a non-binding alternate dispute resolution pro-
cess agreed to by the Parties.
7.3 Right of Enforcement
No provision of this Franchise shall be deemedto bar the right of the City or Avista to seek judicial
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 regard-
City of PINEHORSTElectric and Gas Franchise Page 10 of 15 Rev November13,2021
ing this Franchise shall occur,if in the state courts,in a court of competent jurisdiction in SHO-
SHONE County,Idaho,and if in the federal courts,in the United States District Court for the
District of Idaho in Coeur d'Alene,idaho.
7.4 Attorneys'Fees and Costs
Each Party shall pay for its own attorneys'fees and costs incurred in any dispute resolution pro-
cess or legal action arising out of the existence of this Franchise.
SECTION 8.0 GENERALPROVISIONS
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,without
limitation,third party labor disputes,fire,explosion,flood,earthquake,power outage,pandemic,
epidemic,cyber-attack,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 termination of the occurrence Avista will promptly resume performance of the
affected Franchise obligations in an orderly and expeditious manner.
8.3 Prior Franchises Superseded
As of the Effective Date this Franchise shall supersede all prior electric and gas franchises for the
Franchise Area previously granted to Avista or its predecessors by City,and shall affirm,authorize
and ratify all prior installations authorized by permits or other action not previously covered by
franchise.Termination of the prior Franchise shall not,however,relieve the Parties from any
obligations which accrued under said Franchise prior to its termination,including but not limited
to,any outstanding indemnity,reimbursement or administrative fee payment obligations.
8.4 Severability
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 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 Avista.
City of PINEHURSTElectríc and Gas Franchise Page 11 of 15 Rev November13,2021
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.
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 Abandonment or Suspension of Franchise Rights and Obligations
Avista 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 City.In addition,pursuant to Section
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 obliga-
tions of this Franchise upon reasonable notice to the City.
h1e0Eff
i e a
eEeh
a c se shall be i /3 ,2022,after passage,
approval and legal publication of this ordinance as provided by law,and provided that it has been
duly accepted by Avista as specified above.
City of PINEHURSTElectric and Gas Franchise Page 12 of 15 Rev November 13,2021
City's LanguageAttesting to Approval and Passage of the ordinance
PASSED by the City Council on rl ,2029
ATTEST:
City Clerk,City of Pinehurst
APPROVED by me on ,20 .
Mayor,City of Pinehurst
Date of Publication:,20
City of PINEHURSTElectric and Gas Franchise Page 13 of 15 Rev November 13,2021
Letter of Acceptance by Avista
HONORABLE MAYOR AND CITY COUNCIL
CITY OF PINEHURST,COUNTY OF SHOSHONE,IDAHO
IN RE:City of PINEHURST Ordinance No.ASS -
"Grantinga Franchise to Avista Corporation for the Construction,Operation and
Maintenance of Natural Gas and Electric Facilities and for the Transmission,Con-
trol and Distribution of Natural Gas and Electricity within the City."
Avista Corporation dba Avista Utilities,for itself,its successors and assigns,hereby accepts the
terms and conditions of the Franchise Agreement contained in the subject Ordinance and files
thigwritten,acceptancewith the City of PINEHURST.This acceptance is executed on
//,20
Avista Co oration ¢a Aviste Utilities
By:
Dennis Vermillion
President and CEO,Avista Corporation
Copy Received for the City of Pinehurst
On:
By:
City Representative -Name
City of PINEHURSTElectric and Gas Franchise Page 14 of 15 Rev November13,2021
Tenth RevisionSheet 158
Canceling
I.P.U.C.No.27 Ninth RevisionSheet 158
AVISTA CORPORATION
d/bla Avista Utilities
SCHEDULE 158
TAX ADJUSTMENT SCHEDULE -IDAHO
The rate schedule of the Companyfor natural gas servicefurnished 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 equivalentto 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 renderedpursuantto this tariff within the jurisdiction
imposing a tax or charge,as providedin Rule 3 of the Rules and Regulationsincluded in this tariff.
TAX ADJUSTMENT:
The rates and charges named in this tariffshall be proportionatelyincreased by an adjustment
equivalentto the amount of the tax or charge imposed by the jurisdiction and effectiveas listed below:
Idaho Municipality Ordinance Date Ordinance Effective Charge*
Village of Bonners Ferry Ord.No.209 July 2,1963 3%franchisefee
City of Coeurd'Alene Ord.No.2518 July 1,1993 5%franchise fee
City of Dalton Gardens Ord.No.168 February 1,2005 1%Franchise fee
as amended 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 amendedby 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%franchisefee
City of Osburn Ord.No.297 February1,2020 1%franchisefee
City of Pinehurst Ord.No.2022-239 Julv 1,2022 1%franchise fee
City of Ponderay Ord.No.3-17 November1,1996 1%franchisefee
City of Post Falls Ord.No.1015 March 1,2003 1%franchisefee
City of Rathdrum Ord.No.377 November 1,1996 1%franchisefee
City of Sandpoint Ord.No.1076 March 1,2003 1%franchisefee
City of Spirit Lake Ord.No.510 December1,2007 1%franchisefee
City of Wallace Ord.No.95-07 January 1,1996 1%franchise fee
*Federalbills excluded
Issued May 13,2022 Effective July 1,2022
Issued by Avista Utilities
Patrick Ehrbar,Director of RegulatoryAffairs
AVISTA CORPORATION
DBA AVISTA UTILITIES
NOTICE OF TARIFF CHANGE
(Natural Gas Service Only)
Notice is hereby given that the "Sheet"listed below of Tariff IPUC No.27,covering
natural gas service,has been filed with the Idaho Public Utilities Commission in Boise,
Idaho:
Tenth Revision Sheet 158 Canceling Ninth Revision Sheet 158
The purpose of this filing is to pass through a new 1%franchise fee imposed on
gross revenues from the sale of natural gas to customers within the City of
Pinehurst as specified by Ordinance No.2022-239.The fee is requested to become
effective July 1,2022 and could increase annual revenues by approximately
$4,200.
Copies of the proposed tariff changes are available for inspection in the Company's
offices and on the Company website at www.myavista.com/about-us/our-rates-and-
tariffs/idaho-rate-requests.
Issue Date:May 13,2022
Keep Posted Until:July 1,2022