HomeMy WebLinkAbout0498 Idaho Power Franchise 1998ORDINANCE NO. 498
"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 CHUBBUCK, IDAHO, ELECTRIC
UTILITY PROPERTY AND FACILITIES FOR SUPPLYING ELECTRICITY AND
ELECTRIC SERVICE TO THE CITY, THE INHABITANTS THEREOF, AND
OTHERS FOR A TERM OF 25 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
CHUBBUCK, IDAHO:
SECTION 1. The City of Chubbuck, 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 forth in
Section 14 hereof), privilege and franchise for a period of twenty-five (25) years from and
after January 1, 1999, 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 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
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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.
In consideration of Grantee's undertakings hereunder, the City agrees that any
ordinances or other requirements of the City related to the height of structures within the
City shall not apply to any present or future power poles of Grantee located within the
City which are less than eighty (80) feet in height.
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
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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
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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.
The City shall also have the authority to attach banners, signs and flags to the poles
of Grantee hereunder; provided, that such attachments are in compliance with all
applicable safety codes and the Rules and Regulations of the Idaho Public Utilities
Commission; and provided further, that the City shall obtain advance approval from
Grantee for any banner which will attach to two or more of the Grantee's poles.
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,
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Property Damage and Personal Injury. Such insurance shall have minimum limits of
$1,000,000 per occurrence. The City of Chubbuck 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 Ton`
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
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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 t:. --
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.
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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
s
easements, franchises, rights-of-way, utility lines and equipment installation, maintenanc--
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
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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 Chubbuck, 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
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proper officers and attested by its corporate seal.
SECTION 20. The existing franchise agreement between the City and Grantee set
forth in Ordinance No. 12, dated December 11, 1951, 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 January 1, 1999.
PASSED AND ADOPTED by the Council of the City of Chubbuck, Idaho, this
11TH . day of NOVF24BER , 1998.
APPROVED by the Mayor this 11TH. day of NOVEMBER , 1998.
ATTEST:
John O. Cotant, Mayor
Ron Conlin, City Clerk
(Seal)
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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 11THday of NOVEMBER 1998.
A EST:
alL
Secretary
(Seal)
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