HomeMy Public PortalAboutOrd. 713 - Idaho Power FranchiseORDINANCE NO.713
"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 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 20 YEARS,
INCLUDING THE NONEXCLUSIVE RIGHT TO PHYSICALLY LOCATE AND 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 THE
EXERCISE OF SAID FRANCHISE."
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF McCALL, IDAHO
THAT;
SECTION 1. 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, (subject to the rights of the City set S tion 14 hereof), privilege
and franchise for a period of twenty (20) years from and after �� i t9,i2 , however,
with the right to amend by mutual agreement in accordance with ction 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 facilities 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 conditions
hereinafter specified. In the case of annexation of property to the corporate limit, such area will be
considered under this agreement, upon effective date of the annexation, subject to Section 9 hereof.
All such electric utility property and facilities now maintained 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. All 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 adopted by that Commission during the term of this franchise
agreement.
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 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 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 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 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 shall have minimum limits of $1,000,000 per occurrence. The City of
McCall shall be named as an "Additional Named Insured" under Grantee's insurance policy. 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 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 therefor, 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. 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 the preceding calendar quarter.
For purposes of this 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 of
this 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, franchises, rights -of -
way, utility lines and equipment installation, maintenance and removal during the term of this
franchise 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 from 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 franchise or any extension thereof in competition with the Grantee, its successors and
assigns; but nothing herein contained shall be construed or deemed to prevent the City from
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
franchise agreement unless the electric service provider has received approval to provide electrical
service within the City from the Idaho Public Utilities Commission, and the City has imposed the
same franchise 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
McCall, the State of Idaho or the Public Utilities 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 pursuant to this section.
SECTION 16. Any violation by the Grantee of the provisions of this ordinance, franchise
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 franchise 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 from 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 determination.
SECTION 17. Sale, assignment or lease of this franchise is prohibited without notification
to the City.
SECTION 18. The Grantee shall assume 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. 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
SS I AD ADOPTEDn by the Council of the City of McCall this day of
t,4,k , 19
APPROVED by the Mayor this ( W' day of
ATTEST:
City Clerk 69-Ak_
Seal)
ACCEPTANCE
,19
IDAHO POWER COMPANY, as the franchisee, accepts the franchise set forth in the above
Ordinance ,andagrees to abide by the terms and conditions thereof.
DATED this 0/ day of 4G`-/-D , 19 .
By:�'
p Jackson
Vice President - Corporate Affairs
Secretary