20031103_669.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER SMITH
COMMISSIONER HANSEN
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL
WORKING FILE
FROM:MICHAEL FUSS
DATE:OCTOBER 29, 2003
RE:IDAHO POWER FRANCHISE FEES PAID TO THE CITY OF BLISS.
On October 24, 2003 , Idaho Power Company filed a Tariff Advice with the Commission
requesting an increase in rates within the City of Bliss. The increase would allow Idaho Power
to recover the cost of an increase in franchise fees that Idaho Power is required to pay the city
beginning November 28 2003. The franchise fee implemented is by City of Bliss Ordinance
No. 03-, which is attached to this Decision Memorandum with the Company s filing.
COMMISSION DECISION
The Staff recommends that Schedule 95, Sheet 95-, be accepted with an effective date of
November 28 2003 as proposed by the Company. Does the Commission agree?
udmemos/ldaho power city of Bliss
ichael Fuss
DECISION MEMORANDUM OCTOBER 29, 2003
'" /1
.--
ORDINANCE NO,'L1 Q -
AN ORDINANCE IN ACCORDANCE WITH IDAHO CODE 50-328, 50-329 AND 50-329A
GRANTING A FRANCHISE TO IDAHO POWER COMPANY, A CORPORATION, AND TO
ITS SUCCESSORS AND ASSIGNS , TO CONSTRUCT, MAINTAIN AND OPERATE IN
AND UPON THE PRESENT AND FUTURE STREETS, HIGHWAYS A:r-m OTHER PUBLIC
PLACES WITHIN THE CORPORATE LIMITS OF THE CITY OF P i
IDAHO, ELECTRIC UTILITY PROPERTY AND FACILITIES FOR SUPPLYING
ELECTRICITY AND ELECTRIC SERVICE TO THE CITY, THE INHABITANTS
THEREOF, AND OTHERS FOR A TERM OF ~tEARS, INCLUDING THE
NONEXCLUSIVE RIGHT TO PHYSICALLY LOCATE MAINTAIN TELEPHONE
CABLE, FIBER OPTICS OR OTHER COMMUNICATIONS FACILITIES; SETTING FORTH
AN AGREEMENT NOT TO COMPETE, RESERVING POWER OF EMINENT DOMAIN;
PROVIDING FOR THE PAYMENT OF FRANCHISE FEES; AND SPECIFYING OTHER
LIMITATIONS, TERMS AND CONDITIONS GOVERNING TI-IE EXERCISE OF SAID
FRANCHISE.
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF r:; \ t ~
IDAHO THAT;/J -
SECTION 1. The City of 32)
---.
, Idaho (hereinafter caned the "City ) hereby
grants to IDAHO POWER COMPANY, a corporation, and to its successors and assigns
(hereinafter called the "Grantee ) the right (subject to the rights of the City set forth in Section
14 hereof), privilege and franchise for a period of -t1rJ (L12) years from and after
, however, with the right to amend by mutual agreement in accordance
with Section 15, to construct, maintain and operate in and upon the present and future streets
alleys, highways and other public places within the corporate limits of the City, electric utility
property and facHities for supplying electricity to the City, and the inhabitants thereof, and to
persons and corporations beyond the limits of the City, including the nonexclusive right to
physically locate and maintain telephone, cable, fiber optics or other communications facilities of
the Grantee or other parties, (provided, that Grantee shall comply with the City s requirements
for cable system franchises) all subject to the terms and condi60ns hereinafter specified. In the
case of annexation of property to the corporate limit, such area will be (;onsidered under this
agreement, upon effective date of the annexation, subject to Section 9 hereof. All such electric
utility property and facilities now mainlained by the Grantee within the streets, alleys, highways
and other public places within the corporate limits of the City shall be deemed covered by this
ordinance as provided herein.
SECTION 2. AU of the Grantee s electric property and facilities in and upon the present
and future streets, alleys, highways and public places within the corporate limits of the City shall
be constructed and at all times maintained in good order and condition and in accordance with
standard engineering practices and all applicable safety codes and lawful governmental
regulations. including all applicable state and federal regulations and all construction standards
presently in effect by the Idaho Public Utilities Commission or adQPted by that Commission
during the term of this franchise agreement.
SECTION 3. Upon request of the City, the Grantee shall relocate . its facililies 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 shan be lawful for the Grantee to make an 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 as
practicable and without unnecessary delay and failing to do so after five days' 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 will
forthwith pay the full cost and expense thereof upon demand of the City. 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 an 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 Utilitjes Commission. The City shall string, maintain and
operate such wires at its own expense, risk and responsibility, and in accordance with al11egal
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 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.
SECTION 7. Upon acceptance of this franchise by Grantee and before Grantee shall
have any rights hereunder, Grantee shall file with the City Clerk a Certificate of Insurance
evidencing General Liability Insurance which covers claims for Bodily Injury, Property Damage
and Personal Injury. Such insurance shan have minimum limits of $1 000 000 per occurrence.
The City of Bliss shall bc named as an "Additional Named Insured" under Grantee s insurance
policy. Should the minimum limits of insurance as set forth herein be increased above
000 000, pursuant to the Idaho Tort Claims Act (Idaho Code Section 6-901 et. seq.) or any
similar legislation, the Grantee shall be required to provide the City with a new Certificate of
Insurance evidencing the higher limits upon the City s request.
SECTION 8. The electric service to be furnished to the public hereunder, and all rates
and charges therefore, and all regulation of the Grantee hereunder, shall at all times be subject to
all rules, regulations and orders that may be lawfully prescribed by the Idaho Public Utilities
Commission or by any other governmental authority now or hereafter having jurisdiction over
such matters. During the term of this franchise, Grantee shall at all times assure that customers
within the City have access to customer service from the Grantee as required by the Idaho Public
Utilities Commission.
SECTION 9. If authorized by formal adoption of city resolution, 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 t.lJ.e preceding calendar quarter. For purposes of t.llls Section,
gross revenues" shall mean the amount of money billed by the Grantee for the electricity it sells
within the corporate limits of the City to customers, less uncollectibles. The City shall provide
appropriate information to the Grantee to allow the Grantee to identify which of its customers are
located within the corporate limits of the City for purposes of paying franchise fees. Grantee
shall not be responsible for any failure to pay franchise fees which results from deficiencies in
such information provided by the City. 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 City has supplied the Grantee with appropriate
information for the identification of the Grantee s customers within the annexed area.
The Grantee s franchise fee payment obligations hereunder shall commence with the start
of the Grantee 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 the
collection of the franchise fee in the rates charged by Grantee.
SECTION 10. The City shall have the right during the term of this franchise agreement to
increase the franchise fee hereunder up to three percent (3%), by obtaining approval of a
majority of voters of the City voting on the question 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 electric service provider (other than the
City) who utilizes the City's streets, alleys or other public places to provide electrical service
within the City, during the term ofthis franchise agreement.
SECTION 11. The Grantee shall keep accurate books of account for the collection of the
franchise fees hereunder and the City shall have the right to inspect the same at all times during
business hours, and from time to time audit the same for the purpose of determining gross
revenues under Section 9 above.
SECTION 12. The franchise fees paid by the Grantee hereunder will be in lieu of and as
payment for any tax or fee imposed by the City on the Grantee by virtue of its status as a public
utility including, but not limited to, taxes, fees or charges related to easements, ftanchises, rights-
of-way, utility lines and equipmenl installation, maintenance and removal during the term of this
ftanchise agreement.
SECTION 13. The Grantee shall have the right and privilege, insofar as the City is able
to grant the same, in accordance with National Arborist Association standards, of the pruning of
all trees which overhang the present and future streets, alleys, highways and other public places
within the corporate limits of the City, in such a manner and to such extent as will prevent the
branches or limbs or other parts of such trees ftom touching or interfering with its wires, poles
and other fixtures and equipment. However, except in an emergency, no pruning shall be
undertaken without giving the occupant of the adjacent property written or oral notice that such
pruning will be performed.
SECTION 14. In consideration of Grantee s undertaking hereunder as evidenced by its
acceptance hereof, the City agrees not to engage in the business of providing electric service
during the life of this ftanchise or any extension thereof in competition wit.1J. the Grantee, its
successors and assigns; but nothing herein contained shall be construed or deemed to prevent the
City ftom exercising at any time any power of eminent domain granted to it under the laws of the
State of Idaho. The City shall not grant a franchise to another electric service provider during the
term of this ftanchise agreement unless the electric service provider has received approval to
provide electrical service within the City ftom the Idaho Public Utilities Commission, and the
City has imposed the same ftanchise fee on the electric service provider as paid by the Grantee.
SECTION 15. In the event of an amendment to the laws, rules or regulations of the City
of Bliss, the State of Idaho or the Public Utilities Commission of Idaho applicable to this
ftanchise, or for periodic review of any section of this agreement, the terms of this ftanchise and
the rights and privileges hereby conferred may be changed, altered, amended or modified upon
mutual agreement between the City and the Grantee. In all cases, 60 days notice shall be
required on the part of City or Grantee to reopen the agreement pursuant to this section,
SECTION 16. Any violation by the Grantee of the provisions of this ordinance, ftanchise
and grant or any material portions thereof or the failure promptly to perform any of the
provisions thereof shall be cause for the forfeiture of this ftanchise and grant and all rights
hereunder by the City after sixty (60) days' written notice to the Grantee and the continuance of
such violation, failure or default; however, this provision shall not prevent the Grantee ftom
submitting such question of violation or forfeiture to the appropriate forum (which may include
the district court having jurisdiction or the Idaho Public Utilities Commission) for detennination.
SECTION 17.
notification to the City.
Salc, assignment or lease of this franchise is prohibited without
SECTION 18. The Grantee shall asswne the cost of publication of this franchise as such
publication is required by law.
SECTION 19. The Grantee shall within thirty (30) days after final passage of this
ordinance, file with the City Clerk its acceptance of this franchise in writing signed by its proper
officers and attested by its corporate seal.
SECTION 20. The existing franchise agreement between the City and Grantee set forth. dated , shall terminate upon the adoption and acceptance of this
ordinance.
SECTION 21. Inasmuch as the Grantee has constructed and now is maintaining and
operating the electric utility property and facilities in and upon the streets, alleys, highways, and
public places in the City, it is hereby adjudged and declared that this ordinance is necessary for
the preservation of the public peace, health and safety, and therefore this 'ordinance shall take
effect on
PASSED AND ADOPTED by the Council of the City of 1;\
of u.l~' 20
APPROVED by the Mayor this Ud:h day of ) U. \~
4~~
. .
this day
, 20 63.
ATTEST:
)\ '
City Clerk
(Seal)
ACCEPTANCE
IDAHO POWER COMPANY, as the franchisee, accepts the franchise set forth in the
above Ordinance and agrees to abide by the terms and conditions thereof.
DATED this ayof ~lG,v-.s;;;\20 02,
ATTEST:
lU'L0--
James C. Miller
Senior Vice President -Delivery
W 1
Secretary
(Seal)