HomeMy Public PortalAboutOrd. 678 - Franchise Idaho Power Co - RESCINDEDORDINANCE NO. 678
AN ORDINANCE IN ACCORDANCE WITH IDAHO CODE 50-328 AND 50-329
GRANTING A NONEXCLUSIVE FRANCHISE TO IDAHO POWER COMPANY, A
CORPORATION AND TO ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT,
MAINTAIN AND OPERATE IN, UNDER, AND UPON THE PRESENT AND FUTURE
STREETS, HIGHWAYS AND OTHER PUBLIC PLACES WITHIN THE CORPORATE
LIMITS OF THE CITY OF McCALL, IDAHO, ELECTRIC UTILITY PROPERTY AND
FACILITIES FOR SUPPLYING ELECTRICITY AND ELECTRIC SERVICE TO THE
CITY, THE INHABITANTS THEREOF, AND OTHERS FOR A TERM OF TWENTY
YEARS; SUBJECTING SUCH ELECTRIC SERVICE TO REGULATION BY PUBLIC
AUTHORITY; PROVIDING FOR PAYMENT TO THE CITY OF COMPENSATION FOR
THE EXERCISE OF SAID FRANCHISE; AND SPECIFYING OTHER LIMITATIONS,
TERMS AND CONDITIONS GOVERNING THE EXERCISE OF SAID FRANCHISE,
INCLUDING THE PHASED BURIAL UNDERGROUND OF OVERHEAD LINES WITHIN
THE CITY.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF McCALL, IDAHO, THAT:
SECTION 1. McCall City Code Title 8, Chapter 9 is redesignated "Franchises," and all present
sections of such Chapter are renumbered by inserting the number "1" and where needed to make
three numerals, next the number "O" in front of the third number therein, that is for example,
section 8-9-1 becomes section 8-9-101, and section 8-9-10 becomes section 8-9-110.
SECTION.2. McCall City Code Title 8, Chapter 9 is amended by adding thereto the following
matter:
SUBCHAPTER B
ELECTRICITY
8-9-200. GRANT OF FRANCHISE. The City of McCall, Idaho (hereinafter called the "City")
hereby grants to IDAHO POWER COMPANY, a corporation, and to its successors and assigns
(hereinafter called the "Grantee") the right, privilege and franchise for a period of twenty (20) years
from and after "the effective date of this Ordinance" (which date shall be inserted at this point in
this Ordinance by the Clerk prior to publication), however, with the right to amend by mutual
agreement in accordance with MCC 8-9-260, to construct, maintain and operate in, under, and
upon the present and future streets, 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
inhabitants thereof, and to persons and corporations beyond the limits of the City, subject to all
ordinances and regulations of the city and to the terms and conditions hereinafter specified. In the
case of annexation of property to the corporate limit, such area will be considered under this
subchapter and agreement, upon effective date of the annexation. All such electric utility
property and facilities now maintained by the Grantee within the corporate limits of the City shall be
deemed covered by this subchapter. By continuing to furnish utility service within the City Limits
of the City of McCall notwithstanding the prior expiration of an earlier franchise, and
notwithstanding the enactment of this ordinance, Idaho Power Company consents to and agrees
to this ordinance, and agrees to comply with it in all regards.
8-9-205. CONSTRUCTION AND MAINTENANCE. All of the Grantee's electric property and
facilities 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
Ordinance 678, Electric Utility Franchise, Idaho Power Company
printed 2/13/95
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governmental regulations, including all construction standards presently in effect in the City of
McCall or adopted by the City during the twenty (20) year term granted herein. The City shall have
authority at all times, in furtherance of the safety, convenience and welfare of the public, to control
by appropriate regulations the location, elevation and manner of construction, maintenance and
operation of the Grantee's electric property and facilities on or under the City streets, alleys,
highways and public places, subject to the provisions of any city ordinance, state or federal law
applicable thereto, and the Grantee shall at all times conform with all such regulations. During the
pendancy of this franchise, Idaho Power Company, its successors and assigns, shall not install
any overhead electrical wires without the prior consent of the City Council upon recommendation
of its Planning and Zoning Commission and Transportation Committee, but shall in the case of
new installations and in the case of replacement of existing installations in every case provide
buried conduit located and using materials and techniques in accord with the parts of the McCall
City Code respecting work and installations within public or private road rights of way.
8-9-210. RELOCATION: Upon request of the City to facilitate construction or traffic safety the
Grantee shall move their facilities as necessary within the right of way. The cost of doing so will be
the responsibility of the Grantee.
8-9-215. AUTHORITY TO CONSTRUCT: It shall be lawful for the Grantee to make all needful or
convenient excavations and/or installations in any of the streets, alleys, boulevards and
thoroughfares of the City for the purpose of erecting and maintaining the posts, poles, tower, or
other supports for its wires or for the purpose of laying, maintaining and operating conduits, vaults
and wires and other conductors underground, or to repair and improve such electric power and
light system and to extend the same as the growth of said City or the needs of the inhabitants
thereof may require; provided that when the Grantee, or any person or corporation under the
authority of this franchise, shall disturb any of said streets, alleys, avenues, boulevards,
thoroughfares or public places for the purposes of construction, he, it or the work shall be located
and use materials and techniques in accord with the parts of the McCall City Code respecting work
and installations within public or private road rights of way, and 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, then the City may place said street, alley, avenue, boulevard,
thoroughfare 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,
under, or upon such public ways and public places as shall not interfere with the passage of traffic
and the use of adjoining property, and shall conform to all applicable laws, rules and regulations.
Grantee is required to apply for and receive all permits as may be required by the City for work in
the public way. During each year of the twenty year term of this franchise Idaho Power Company
shall relocate to underground not less than 5% by lineal foot of those of its overhead wires within
the City as to which voltages do not preclude burial other than at unreasonable expense, as
agreed at the time with the City Council upon recommendation of the Planning and Zoning
Commission.
8-9-220. CONCURRENT USE: The City shall have the free right and privilege to string and
maintain wires for its municipal services upon the poles and other facilities erected and maintained
by the Grantee hereunder, and the City may require that any conduit or utilidor which is laid by
franchisee under the streets be oversized to permit concurrent use by others, provided that the
marginal expense attributable to oversizing is met by the City or those others; and may use any
such conduit or utilidor thereafter. The City shall string, maintain and operate such wires at its own
expense, 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
Ordinance 678, Electric Utility Franchise, Idaho Power Company
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Grantee only when necessary in the maintenance, operation or repair of the Grantee's own
fixtures, wires, facilities and appurtenances..
8-9-220. INDEMNITY: The Grantee shall at all times indemnify and hold the City, its officers,
employees and agents, harmless from any and all claims, causes of action, expense or liability
arising out of, or in any way connected with the construction, operation or maintenance of any of
the Grantee's electric utility property or facilities by Grantee and/or Grantee's agents, employees
or representatives. Grantee shall provide an Idaho public liability insurance certificate protecting
the City under the Idaho tort claims statute.
8-9-225. UTILITY REGULATION. The electric service to be furnished to the public hereunder,
and all rates and charges therefor, and all regulation of the Grantee applicable thereto, shall at all
times be subject to all rules, regulation and orders that may be lawfully prescribed by the Public
Utility Commission of the State, of Idaho or by any other governmental authority now or hereafter
having jurisdiction over such matters. During the term of this franchise, the Grantee shall
continuously maintain facilities in the City for convenience to its customers for the payment of bills
for electric service during the usual office hours.
8-9-230. ACCOMMODATING BUILDING MOVERS. When necessary, in order to permit any duly
authorized person to move any building or other structure across or along any street, alley,
avenue, boulevard, or public place within the City, the Grantee shall temporarily raise or remove its
wires, fixtures and appurtenances upon such street, alley, avenue, boulevard, thoroughfare or
public place, upon seventy-two hours written notice in advance from such person, such notice to
bear the approval of such official as the City may designate, at such time and in such manner as
may be necessary reasonably to accommodate such moving, consistently with the maintenance
of proper service to the Grantee's customers; provided, however, that the cost to the Grantee of
such temporary raising or removal, and of any interruption of the Grantee's service to its customers
caused thereby, shall first be paid or satisfactorily secured to the Grantee by the owner or mover of
such building or other structure.
8-9-235. COMPENSATION TO CITY AND PUBLIC FOR FRANCHISE. As compensation for the
right, privilege and franchise hereby granted, the Grantee shall pay to the City on or before the
15th day of each January, April, July and October following adoption of this ordinance an amount
equivalent to three percent (3%) of the Grantee's "Gross Revenues" for the preceding quarter.
The first such "quarter" shall be for a short -quarter running from March 1, 1995. The term "Gross
Revenues" as used herein shall mean and be construed to be the amount of money actually
collected from all sources by the Grantee during the preceding quarter within the corporate limits
of the City. All sums which become delinquent shall accumulate interest at the statutory rate
provided in Idaho Code 28-22- 104(1). The accrual of interest is not intended to waive or in any
manner restrict City's ability to elect any procedure or method of collection permissible by law to
enforce all the terms and conditions of this ordinance or the franchise agreement. In addition,
where the City determines by audit, financial statement or other method, that Grantee has
underpaid franchise fees and where payment was not received by the City within the quarter
owed, the Grantee may be required to pay all fees and interest due and an additional penalty of
25% of the total amount owed. The City Manager shall offer such assistance as may reasonably be
requested in determining which customers uses are located with the City Limits. Such franchise
fee may be listed as a separate item on the customers utility bill.
8-9-240. NOTICE. Notice in accord with the requirements of 63-2224A shall be given by the
Clerk prior to March 1, 1995, and Council reserves the right to rescind all or any part of this
subchapter if the results of such notice are revisions to this subchapter.
Ordinance 678, Electric Utility Franchise, Idaho Power Company
printed 2/13/95
page 3
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8-9-245. AUDIT: The Grantee shall keep accurate books of account 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 such "Gross Revenues." Such franchise compensation payments.
will be accepted by the City in lieu of and as payment for any license, privilege or occupation tax or
fee for revenue or regulation now or hereafter to be imposed by the City upon the Grantee during
the term of this franchise; provided, however, that this section will not be interpreted or be
construed as in any manner exempting the Grantee from paying the usual and normal real and
personal property taxes to any and all taxing bodies within the boundaries of which the Grantee
functions, operates and owns property, and during the term hereof the City will not require the
Grantee to pay to the City any additional license, privilege or occupation tax or fee. The City may
require an auditor's negative assurance statement from Grantee. Nothing in this section shall be
construed to relieve Grantee from payment of normal fees and bonding for work within the right of
way.
8-9-250. TRIMMING OF VEGETATION. 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 trimming of all trees which overhang the streets or public places in such a manner and to. such
extent as will prevent the branches or limbs or other parts of such trees from touching or
interfering with its wires, poles and other fixtures and equipment; providing, however, that no
such trees will be trimmed or cut back farther than may be necessary to prevent such interference
and to allow the proper operation and maintenance of said line poles and fixtures, nor shall such
non -emergency trimming occur where undergrounding of wires is programmed within the same
construction season. However, except in an emergency, no trimming shall be undertaken without
giving the adjacent property owner notice that such trimming will be performed.
8-9-255. SERVICE OBLIGATION: The Grantee shall maintain and operate a system for the
distribution of electricity in the City so as to furnish what shall be known as a twenty-four hour
service, but the Grantee does not guarantee continuous and uninterrupted service under the
terms of this subchapter and under no circumstances shall the Grantee be held liable to or
responsible by the City on account of interruption or failure of service caused by storms,
washouts, accidents, floods, acts of God or the public enemy, war, strikes, damages by the
elements or damage to plant or equipment on account of any circumstances beyond the control
of the Grantee (other than enforcement of this subchapter). However, the Grantee does agree to
use due diligence to maintain continuous and uninterrupted service.
8-9-260. AMENDMENT. In the event of an amendment to the laws, rules or regulations of the City
of McCall, the State of Idaho or the Public Utility Commission of Idaho applicable to this franchise,
or for periodic review of any section of this agreement, the terms of this franchise 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, and this subchapter shall remain in full force and
effect until such time as an amendment is agreed to.
8-9-265. BREACH OF THIS SUBCHAPTER.
A. If a Grantee willfully violates or fails to comply with any of the provisions of this franchise,
the City shall give written notice to the Grantee of the alleged non-compliance with its
franchise. The Grantee shall have forty-five (45) days from the date of notice of non-
compliance to cure such alleged default or, if such default cannot be cured in forty-five
(45) days, to present to the City a plan of action whereby such default can be promptly
and diligently cured.
Ordinance 678, Electric Utility Franchise, Idaho Power Company
printed 2/13/95
page 4
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B. if such default continues beyond the applicable dates agreed to for such cure, the City
shall give the Grantee written notice that all rights conferred under this Ordinance and its
franchise may be revoked or terminated by the Council after a public hearing. The
Grantee shall be entitled to not less than thirty (30) days prior notice of the date, time and
place of the public hearing. The City may elect, in lieu of the above and without any
prejudice to any of its other legal rights and remedies, to obtain an order from the district
court having jurisdiction compelling Grantee to comply with the provisions of the franchise
and recover damages and costs incurred by the City by reason of the Grantee's failure to
comply. This subchapter shall be enforceable by civil or criminal proceedings in the sound
discretion of the City Attorney.
8-9-270. SALE OR ASSIGNMENT PROHIBITED. Sale, assignment or lease of this franchise is
prohibited without the express written consent of the City.
SECTION 3. Inasmuch as the Grantee has constructed and now is maintaining and operating
electric utility property and facilities in and upon the streets, alleys, avenues, highways,
boulevards, thoroughfares and public places in the City under a franchise which has expired, 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 the date of its publication
in accordance with law.
Passed and approved February /y 1994.
Dean Martens
Mayor
James H. Henderson,
City Clerk
Ordinance 678, Electric Utility Franchise, Idaho Power Company
printed 2/13/95
page 5
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City of McCall
Certificate of Recording Officer
State of Idaho )
County of Valley )
I, the undersigned; the duly appointed, qualified, City Clerk of the City of McCall, Idaho, do hereby
certify the following:
1. That pursuant to the provisions of Section 50-207, Idaho Code, I keep a correct journal of the
proceedings of the Council of the City of McCall, Idaho, and that I am the statutory custodian of all laws,
ordinances and resolutions of said City.
2. That the attached Ordinance No. 678 is a true and correct copy of an ordinance passed at a duly
called special meeting of the Council of the City of McCall held on February 14, 1995, and duly recorded in my
office; and
3. That said regular meeting was duly convened and held in all respects in accordance with law and
to the extent required by law, due and proper notice of such meeting having been given; that a legal quorum was
present throughout the meeting and that a legally sufficient number of members of the Council voted in the proper
manner and for the passage of said ordinance; and that all other requirements and proceedings incident to the
proper adoption and passage of said ordinance have been duly fulfilled, carried out and observed; and that I am
authorized to execute this certificate.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of McCall,
Idaho this 16th day of February 1995.
James H. Henderson, City Clerk
Publisher's Affidavit of Publication
STATE OF IDAHO
.Ss
County of Valley
I, Ramona A. French, being duly sworn and say, I am the receptionist
of The Central Idaho Star -News, a weekly newspaper published at McCall, in
the County of Valley, State of Idaho; that said newspaper is in general
circulation in the county of aforesaid and is a legal newspaper; that the
NOTICE OF ORDINANCE 678, a copy of which is enclosed hereto and is a.
part hereof, was published in said newspaper once a week for one consecutive
week in the regular and entire issue of every number there of during the period
of time of publication, and was published in the newspaper proper and not in a
supplement; and that publication of such notice began February 16, 1995 and
ended February 16, 1995.
Subscribed and sworn befo a me this the 16th day of February, 1995.
STATE OF IDAHO
COUNTY OF VALLEY
On this 16th day of February, in the year of 1995, before me, a
Notary Public, personally appeared Ramona A. French; known or identified to
me to be the person whose name subscribed to the within instrument, and
being by me first duly sworn, declared that the statements therein are true, and
acknowledged to me that she executed the same.
Tom Grote
Notary Public for Idaho
Residing at McCall, Idaho
Commission Expires: 1999
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MINUTES
McCall City Council
Special Call Meeting
Thursday, March 16, 1995
Call to Order and Roll Call
1. The meeting was called to order by Mayor Martens at 11:30 AM.
2. Mrs. Arp and Messrs. Colton, Martens, Killen and Eckhardt answered the roll call. The mayor
declared that a quorum was present. Staff members present were: City Manager Gary Shimun,
City Attorney Ted Burton and City Clerk -Treasurer Jim Henderson.
3. Mobile Home Inspection Fee: Mr. Shimun presented a proposal to establish a fee of $150 for
the inspection of a mobile home installation.
4. Ordinance 678 Re: Franchise: Ordinance 678 which was adopted by the council on February
16, 1995 was presented Though previously approved, there was a statutory requirement that the
ordinance be published and enacted not earlier than thirty days after initial presentation. After
discussion, Mr. Eckhardt moved to table consideration of the ordinance until the March 23
meeting. Mr. Killen seconded and the motion carried.
5. City Manager Goals and Objectives: Mr. Shimun presented a list of suggested objectives. The
council discussed matters of training and safety. They also noted the need for training of
Advisory Committee training. Mr. Shimun was asked to prepare his list on a standardized form
and return it to the council. The council also requested that the matterof compensation be
addressed at the March 23 meeting.
6. Bid Opening Water Treatment Plant: Mr. Burton reported that the bid opening for the Water
Treatment Plant, schedule for March 31, 1995 would be slipped due to the requirement for an
Idaho Public Works License and the fact that the Licensing Board would not meet until April 5.
7. Long Range Planning Worksession: After discussion, the council by consensus agreed to meet
at 11:30 AM, April 10, 1995 to continue its discussion of long range planning.
8. Adjournment: Without further business, Mr. Eckhardt moved to adjourn. Mr. Killen seconded
and the motion carried. The council adjourned at 1:00 P
Al "PEST:
ao, A lti�,k
Mayor
MINUTES
McCall City Council
Thursday, March 23,1995
Call to Order and Roll Call
1. The meeting was called to order by Mayor Martens at 7:05 PM.
2. Messrs. Colton, Martens and Eckhardt answered the roll call. The mayor declared that a quorum was
present. Staff members present were City Manager Gary Shimun, City Attorney Ted Burton and City
Clerk -Treasurer Jim Henderson
Minutes of Previous Meetings
3. Minutes of March 6, 1995. Mr. Colton moved to approve the minutes of March 6, 1995 as presented. Mr.
Martens seconded and the motion carried.
4. Minutes of March 9, 1995. Mr. Eckhardt moved to approve the minutes of March 9, 1995 as presented.
Mr. Colton seconded and the motion carried.
5. Minutes of March 16, 1995. Mr. Martens moved to approve the minutes of March 16, 1995 as presented
Mr. Colton seconded and the motion carried.
Payment of Claims
6. Payroll Report dated March 14, 1995. Mr. Eckhardt moved to approve the payroll of March 14, 1995.
Mr. Colton seconded and the motion carried.
7. Voucher Report dated March 17, 1995. After discussion, Mr. Eckhardt moved to approve the claims
listed on the voucher report dated March 17, 1995. Mr.. Colton seconded and the motion carried.
Public Comment
8. Mr: Stan Craven appeared and asked that the consideration of Ordinance 678 concerning electric power
franchise be brought forward on the agenda. The mayor so ordered After discussion, Mr Eckhardt
moved to rescind the council's previous action on Ordinance 678. Mr. Colton seconded and the motion
carried.
9. Mr. Scott Findlay appeared to discuss the master plan outline formed by the Downtown Subcommittee. He
requested that the city provide $5,000 as a local match for a block grant to hire a professional planner to
move the downtown master plan forward. He also requested that council give the Urban Renewal Agency
direction to expand the district to include the Central Business District. After further discussion, Mr.
Colton moved to make $5,000 from the council's contingency fund as a local match for a planning grant.
Mr. Martens seconded and the motion carried
10. Mr. Andrew Laidlaw appeared and asked that the Impact Planning and Zoning Commission Minutes be
brought forward on the agenda. The mayor so ordered. The council considered the commissions findings
and conclusions regarding a request for conditional use permit for a guest requested by Don and Bonnie
Bilbao. Mr. Shimun gave a staff report. After discussion, Mr. Eckhardt moved to adopt the findings and
conclusions of the Area of City Impact Planning and Zoning Commission, amended to include a finding
that no second hearing was required, as those of the council. Mr. Martens seconded and the motion
carried