20190415_bab2jo.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER RAPER
COMMISSIONER ANDERSON
COMMISSION SECRETARY
LEGAL
WORKING FILE
FROM:BEVERLY BARKER
DATE:APRIL 11,2019
RE:IDAHO POWER TARIFF ADVICE NO.19-03
REVISION TO IDAHO POWER'S ELECTRIC SERVICE SCHEDULE 95
FRANCHISE AGREEMENT WITH THE CITY OF ROCKLAND
BACKGROUND
On February 6,2019,Idaho Power Company ("Idaho Power")submitted Tariff Advice
No.19-03 to revise Idaho Power's Electric Service Schedule 95 to add the City of Rockland.
The revised tariff would enable the Company to collect a new city-imposed one percent franchise
fee from customers for the sale of electricity within the corporate limits of the City of Rockland
for a period of twenty (20)years unless amended in the manner set forth in the city's franchise
with Idaho Power.
The proposed franchise fee agreement was approved by the City of Rockland on
September 19,2018,as authorized in the attached City of Rockland Ordinance No.30.The
agreement was accepted by Idaho Power on February 1,2019.Idaho Power requests an effective
date of April 16,2019.
Idaho Code §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 majorityof 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.
DECISION MEMORANDUM -1 -APRIL 11,2019
STAFF RECOMMENDATION
Staff has reviewed the proposed tariff change,the franchise agreement for the City of
Rockland,and the franchise fee requirements under Idaho Code §50-329A.Staff recommends
that the Commission accept Idaho Power's proposed revision to Electric Service Schedule 95
Municipal Franchise Fees.Staff recommends an effective date of April 16,2019.
COMMISSION DECISION
Does the Commission accept Idaho Power's proposed revision to Electric Service
Schedule 95 with an effective date of April 16,2019?
BeverlyBar r
Udmemos/ldaho Power Tariff Advice 19-03
DECISION MEMORANDUM -2 -APRIL 11,2019
ORDINANCE NO.
"AN ORDINANCE IN ACCORDANCE WITH IDAHO CODE 50-328,50-329 AND 50-329AGRANTINGAFRANCHISETOIDAHOPOWERCOMPANY,A CORPORATION,AND TOITSSUCCESSORSANDASSIGNS,TO CONSTRUCT,MAINTAIN AND OPERATE INANDUPONTHEPRESENTANDFUTURESTREETS,HIGHWAYS AND OTHER PUBLICPLACESWITHINTHECORPORATELIMITSOFTHECITYOFROCKLAND,IDAHO,ELECTRIC UTILITY PROPERTY AND FACILITIES FOR SUPPLYING ELECTRICITYANDELECTRICSERVICETOTHECITY,THE INHABITANTSTHEREOF,AND OTHERSFORATERMOFTWENTY(20)YEARS,INCLUDINGTHE NONEXCLUSIVE RIGHT TOPHYSICALLYLOCATEANDMAINTAINTELEPHONE,CABLE,FIBER OPTICS OROTHERCOMMUNICATIONSFACILITIES;SETTING FORTH AN AGREEMENT NOT TOCOMPETE,RESERVING POWER OF EMINENT DOMAIN;PROVIDING FOR THEPAYMENTOFFRANCHISEFEES;AND SPECIFYING OTHER LIMITATIONS,TERMSANDCONDITIONSGOVERNINGTHEEXERCISEOFSAIDFRANCHISE."
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF TIIE ClTY OF ROCKLAND,IDAHO THAT;
SECTION 1.The City of Rockland,Idaho (hereinafter called the "City")hereby grantstoIDAHOPOWERCOMPANY,a corporation,and to its successors and assigns (hereinaftercalledthe"Grantee")the right (subject to the rights of the City set forth in Section 14 hereof)privilege and franchise for a period of twenty (20)years from and after ')I)\(the effective date of this ordinance),however,with the right to amend by mutual agreement inaccordancewithSection15,to construct,maintain and operate in and upon the present andfuturestreets,alleys,highways and other public places within the corporate limits of the City,electric utility property and facilities for supplying electricity to the City,and the inhabitantsthereof,and to persons and corporations beyond the limits of the City,including thenonexclusiverighttophysicallylocateandmaintaintelephone,cable,fiber optics or othercommunicationsfacilitiesoftheGranteeorotherparties,(provided,that Grantee shall complywiththeCity's requirements for cable system franchises)all subject to the terms and conditionshereinafterspecified.In the case of annexation of property to the corporate limit,such area willbeconsideredunderthisagreement,upon effective date of the annexation,subject to Section 9hereof.All such electric utilityproperty and facilities now maintained by the Grantee within thestreets,alleys,highways and other public places within the corporate limits of the City shall bedeemedcoveredbythisordinanceasprovidedherein.
SECTION 2.All of the Grantee's electric property and facilities in and upon the presentandfuturestreets,alleys,highways and public places within the corporate limits of the City shallbeconstructedandatalltimesmaintainedingoodorderandconditionandinaccordancewithstandardengineeringpracticesandallapplicablesafetycodesandlawfulgovernmentalregulations,including all applicable state and federal regulations and all construction standardspresentlyineffectbytheIdahoPublicUtilitiesCommissionoradoptedbythatCommissionduringthetermofthisfranchiseagreement.
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SECTION 3.Upon request of the City,the Grantee shall relocate its facilities as
necessary within the present and future streets,alleys,highways and other public places owned
by the City.The City shall have no responsibility for the costs of such relocations.The Grantee
shall bear the cost of relocating its facilities at the City's request,unless the facilities are to be
relocated for the benefit of a third party,in which case the third party shall pay the costs of
relocation.In the event federal,state or other funds are available in whole or in part for utility
relocating purposes,the City shall apply for,such funds and the Grantee will be reimbursed to the
extent any such funds are actually obtained.
SECTION 4.It shall be lawful for the Grantee to make all needful or convenient
excavations and/or installations in any of the present and future streets,alleys,highways and
other public places within the corporate limits of the City for the purpose of erecting and
maintaining the posts,poles,towers,or other supports for its wires or for the purpose of laying,
maintaining and operating conduits,vaults and wires and other conductors underground for the
purpose aforesaid,or to repair and improve such electric power and light system and to extend
the same;provided that when the Grantee or any person or corporation under the authority of this
franchise,shall disturb any of said streets,alleys,highways or other public places for the
purposes aforesaid,he,it or they shall restore the same to good order and condition as soon aspracticableandwithoutunnecessarydelayandfailingtodosoafterfivedays'notice from the
City,or its duly authorized officer or officers,then the City may place said street,alley,highway
or public place in such condition at the cost and expense of the Grantee,and said Grantee willforthwithpaythefullcostandexpensethereofupondemandoftheCity.All facilities
constructed under this ordinance shall be placed and maintained at such places and positions in
or upon such public ways and public places as shall not interfere with the passage of traffic and
shall conform to all applicable laws,rules and regulations.
SECTION 5.The City shall have the right and privilege to string and maintain wires for
its internal communications for its fire,police,airport and other services upon the poles and
other facilities erected and maintained by the Grantee hereunder,subject to the Rules and
Regulations of the Idaho Public Utilities Commission.The City shall string,maintain andoperatesuchwiresatitsownexpense,risk and responsibility,and in accordance with all legal
requirements and good engineering practices and in such manner as not to impose any additional
expense upon Grantee of its said poles and facilities.Any such wires of the City shall be subject
to interference by the Grantee only when necessary in the maintenance,operation or repair of the
Grantee's own fixtures,wires,facilities and appurtenances.
SECTION 6.The Grantee shall at all times indemnify and hold the City,its officers,
employees and agents,harmless from any and all expenses or liability arising from,and against
or by reason of any negligent act or omission of the Grantee,its representatives or employees,in
the construction,operation or maintenance of any of the Grantee's electric utility property or
facilities.
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SECTION 7.Upon acceptance of this franchise by Grantee and before Grantee shallhaveanyrightshereunder,Grantee shall file with the City Clerk a Certificate of InsuranceevidencingGeneralLiabilityInsurancewhichcoversclaimsforBodilyInjury,Property DamageandPersonalInjury.Such insurance shall have minimum limits of $1,000,000 per occurrence.The City of Rockland shall be named as an "Additional Named Insured"under Grantee'sinsurancepolicy.Should the minimum limits of insurance as set forth herein be increased above$1,000,000,pursuant to the Idaho Tort Claims Act (Idaho Code Section 6-901 et.seq.)or anysimilarlegislation,the Grantee shall be required to provide the City with a new Certificate ofInsuranceevidencingthehigherlimitsupontheCity's request.
SECTION 8.The electric service to be furnished to the public hereunder,and all ratesandchargestherefore,and all regulationof the Grantee hereunder,shall at all times be subject toallrules,regulations and orders that may be lawfully prescribed by the Idaho Public UtilitiesCommissionorbyanyothergovernmentalauthoritynoworhereafterhavingjurisdictionoversuchmatters.During the term of this franchise,Grantee shall at all times assure that customerswithintheCityhaveaccesstocustomerservicefromtheGranteeasrequiredbytheIdahoPublicUtilitiesCommission.
SECTION 9.As compensation for the right,privilege and franchise hereby granted,Grantee agrees to pay to the City on or before the 30th day of January,April,July and October,an amount equivalent to One percent (1 %)of Grantee's "gross revenues"for theprecedingcalendarquarter.For purposes of this Section,"gross revenues"shall mean theamountofmoneybilledbytheGranteefortheelectricityitsellswithinthecorporatelimitsoftheCitytocustomers,less uncollectibles.The City shall provide appropriate information to theGranteetoallowtheGranteetoidentifywhichofitscustomersarelocatedwithinthecorporatelimitsoftheCityforpurposesofpayingfranchisefees.Grantee shall not be responsible for anyfailuretopayfranchisefeeswhichresultsfromdeficienciesinsuchinformationprovidedbytheCity.In the event the City annexes a new area into its corporate limits,the terms of this Section
9 regarding franchise fees shall not apply to the annexed area until sixty (60)days after the CityhassuppliedtheGranteewithappropriateinformationfortheidentificationoftheGrantee'scustomerswithintheannexedarea.
The Grantee's franchise fee payment obligationshereunder shall commence with the startoftheGrantee's first full billing cycle following the effective date of this ordinance;provided,that the Grantee must first receive approval from the Idaho Public Utilities Commission for thecollectionofthefranchisefeeintherateschargedbyGrantee.
SECTION 10.The City shall have the right during the term of this franchise agreement toincreasethefranchisefeehereunderuptothreepercent(3%),by obtaining the consent of theGranteeortheapprovalofamajorityofvotersoftheCityvotingonthequestionatanelectionheldinaccordancewithchapter4,title 50,Idaho Code.Any such vote to increase the franchisefeehereundershallprovidethattheincreasedfranchisefeewillapplytoanyelectricserviceprovider(other than the City)who utilizes the City's streets,alleys or other public places toprovideelectricalservicewithintheCity,during the term of this franchise agreement.
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SECTION 11.The Grantee shall keep accurate books of account for the collection of thefranchisefeesforaperiodnottoexceedthreeyearshereunderandtheCityshallhavetherighttoinspectthesameatalltimesduringbusinesshours,and from time to time audit the same for thepurposeofdetermininggrossrevenuesunderSection9above.
SECTION 12.The franchise fees paid by the Grantee hereunder will be in lieu of and aspaymentforanytaxorfeeimposedbytheCityontheGranteebyvirtueofitsstatusasapublicutilityincluding,but not limited to,taxes,fees or charges related to easements,franchises,rights-of-way,utility lines and equipment installation,maintenance and removal during the term of thisfranchiseagreement.
SECTION 13.The Grantee shall have the right and privilege,insofar as the City is abletograntthesame,in accordance with National Arborist Association standards,of the pruning ofalltreeswhichoverhangthepresentandfuturestreets,alleys,highways and other public placeswithinthecorporatelimitsoftheCity,in such a manner and to such extent as will prevent thebranchesorlimbsorotherpartsofsuchtreesfromtouchingorinterferingwithitswires,polesandotherfixturesandequipment.However,except in an emergency,no pruning shall beundertakenwithoutgivingtheoccupantoftheadjacentpropertywrittenororalnoticethatsuchpruningwillbeperformed.
SECTION 14.In consideration of Grantee's undertakinghereunder as evidenced by itsacceptancehereof,the City agrees not to engage in the business of providing electric serviceduringthelifeofthisfranchiseoranyextensionthereofincompetitionwiththeGrantee,its
successors and assigns;but nothing herein contained shall be construed or deemed to prevent theCityfromexercisingatanytimeanypowerofeminentdomaingrantedtoitunderthelawsoftheStateofIdaho.The City shall not grant a franchise to another electric service provider during thetermofthisfranchiseagreementunlesstheelectricserviceproviderhasreceivedapprovaltoprovideelectricalservicewithintheCityfromtheIdahoPublicUtilitiesCommission,and theCityhasimposedthesamefranchisefeeontheelectricserviceprovideraspaidbytheGrantee.
SECTION 15.In the event of an amendment to the laws,rules or regulations of the CityofRocklandtheStateofIdahoorthePublicUtilitiesCommissionofIdahoapplicabletothisfranchise,or for periodic review of any section of this agreement,the terms of this franchise andtherightsandprivilegesherebyconferredmaybechanged,altered,amended or modified uponmutualagreementbetweentheCityandtheGrantee.In all cases,60 days notice shall berequiredonthepartofCityorGranteetoreopentheagreementpursuanttothissection.
SECTION 16.Any violation by the Grantee of the provisions of this ordinance,franchiseandgrantoranymaterialportionsthereoforthefailurepromptlytoperformanyoftheprovisionsthereofshallbecausefortheforfeitureofthisfranchiseandgrantandallrightshereunderbytheCityaftersixty(60)days'written notice to the Grantee and the continuance ofsuchviolation,failure or default;however,this provision shall not prevent the Grantee from
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submitting such question of violation or forfeiture to the appropriate forum (which may includethedistrictcourthavingjurisdictionortheIdahoPublicUtilitiesCommission)for determination.
SECTION 17.Sale,assignment or lease of this franchise is prohibited withoutnotificationtotheCity.
SECTION 18.The Grantee shall assume the cost of publication of this franchise as suchpublicationisrequiredbylaw.
SECTION 19.The Grantee shall within thirty (30)days after final passage of thisordinance,file with the City Clerk its acceptance of this franchise in writing signed by its properofficersandattestedbyitscorporateseal.
SECTION 20.The existing franchise agreement between the City and Grantee set forthinOrdinanceNo.36,dated October 3,1966,shall terminate upon the effective date of thisordinance.
SECTION 21.Inasmuch as the Grantee has constructed and now is maintaining andoperatingtheelectricutilitypropertyandfacilitiesinanduponthestreets,alleys,highways,andpublicplacesintheCity,it is here-by adjudged and declared that this ordinance is necessary forthepreservationofthepublicpeace,health and safety,and therefore this ordinance shall takeeffectonSo192-OlÔ .
PASSED AND ADOPTED by the Council of the City of OC this dayof64fember,2018W
APPROVED by the Mayor this day of ,201
ATTEST:pg ,
(Seal)
ACCEPTANCE
IDAHO POWEË COMPANY,as the franchisee,accepts the franchise set forth in theaboveOrdinanceandsaoabidebtheterms'andon2ditiosthereof.
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By:
LÏsa GATTEST:SVP &Chief Operating Officer
Secretary
(Seal)
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