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Ordinance - 2002 - 415 - Eagle Water Franchise Fee Agreement - 09/10/2002ORDINANCE NO. 415 ORIGINAI AN ORDINANCE IN ACCORDANCE WITH IDAHO CODE 50-s28, 50-329 AND 50-329a GRANTING A FRANCHISE TO EAGLE WATER, A CORPORATION, AND TO ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, MAINTAIN AND OPERATE IN, UPON AND UNDER THE PRESENT AND FUTURE STREETS, HIGHWAYS AND OTHER PUBLIC PLACES WITHIN THE CORPORATE LIMITS OF THE CITY OF EAGLE, IDAHO, WATER UTILITY PROPERTY AND FACILITIES FOR SUPPLYING WATER AND WATER SERVICE TO THE CITY, THE INHABITANTS THEREOF, AND OTHERS FOR A TERM OF 20 YEARS, INCLUDING THE NONEXCLUSIVE RIGHT TO PHYSICALLY LOCATE AND MAINTAIN WATER LINES, PIPES, EQUIPMENT OR OTHER WATER 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, AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF EAGLE, IDAHO THAT: SECTION 1: The City of Eagle, Idaho (hereinafter called the "City") hereby grants to EAGLE WATER, 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 (20) years from the effective date of this Ordinance, however, with the right to amend by mutual agreement in accordance with Section 15, to construct, extend, improve, maintain and operate in, upon and under the present and future streets, alleys, highways and other public places within the corporate limits of the City, water utility property and facilities for supplying water 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 water lines, pipes, equipment or other water facilities of the Grantee or other parties, (provided, that Grantee shall comply with the City's requirements for water 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 water 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 water property and facilities in, upon and under 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 including all applicable state and federal regulations and all construction standards presently in effect by the Idaho Public Utilities Commission (PUC) 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, alley, highways and other public places within the corporate limits of the City for the purpose of installing, maintaining and operating pipes, lines, conduits, valves, fire hydrants, meters, vaults and wire and other equipment and appurtenances for Page 1 the purpose aforesaid, or to repair and improve such water system and to extend the same; provided that when the Grantee or any per or corporation under the authority of thi anchise, 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 ten 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, through the chief of its fire department or other properly authorized officer, may use water from the fire hydrants for extinguishing fires, washing or flushing drains, gutters, and sewers, in its streets, avenues, alleys and other public places and for sprinlding the public streets, whenever the City Council and Mayor or board of health deem it necessary. The water so used by the City shall be without additional compensation to Grantee. In consideration for the privileges and benefits of this use of water and the covenants contained in this ordinance, the City covenants that this franchise and the plant and all property now or hereafter acquired, owned, constructed, maintained and operated under this franchise by Grantee, shall be exempt from the payment of all municipal taxes and assessments which are or may be assessed by City during the term of this franchise. When the franchise or other property of Grantee is not exempted by the City, then the City covenants to pay Grantee, as rental, a sum equal to the amount Grantee pays or is required to pay to the City as they accrue and become due, out of the general revenues of City. The Grantee's performance of the covenants contained in this ordinance and the granting to City of the privileges and benefits above are in effect a payment of the taxes and assessments, which are or may be assessed by the City during the term of this franchise. In all other cases not specified in this ordinance where Grantee supplies the City with, or the City uses, water, it shall be paid for by the City out of its general revenues at the rates in place and as established by the PUC. SECTION 6: The City shall have the right and privilege to install and maintain lines and pipes for its own use for its fire, police, airport and other services adjacent to lines 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 install, maintain and operate such lines and pipes 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 conduits and facilities. Any such lines 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, lines, facilities and appurtenances. SECTION 7: 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 water utility property or facilities. SECTION 8: Upon acceptance of this franchise by Grantee and before Grantee should 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 $1,000,000.00 per occurrence. The City of Eagle 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. Page 2 SECTION 9: The ter service to be furnished to the publi ereunder, and all rates and charges therefore, and all regulation of the Grantee hereunder, shall at all times be subject to all rules, regulations and order 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 terms 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 10: 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 water it sells within the corporate limits of the City to customers, less uncollectables. 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 11: 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 water service provider (other than the City who utilizes the City's streets, alleys or other public places to provide water service within the City, during the term of this franchise agreement. SECTION 12: 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 13: 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 14: In consideration of Grantee's undertaking hereunder and as exists upon the effective date of this ordinance, the City agrees not to engage in the business of providing water service during the life of this franchise or any extension thereof in the certificated area approved by the PUC as of September 10, 2002 and as subsequently amended by the PUC. 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 water service provider during the terms of this franchise agreement unless the water service provider has received approval to provide water service within the City from the Idaho Public Utilities Commission, and the City has imposed the same franchise fee on the water service provider as paid by the Grantee. Page 3 SECTION 15: In t' ,vent of an amendment to the laws, rule r regulations of the City of Eagle, the State of Idaho, or the Public Utilities Commission of Idaho applicable to their 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, sixty (60) days notice shall be required on the part of the 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 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 prior written consent of the City. The City's consent under this Section shall not unreasonably denied. SECTION 18: The City shall assume the cost of publication of this franchise; as such publication is required by law. SECTION 19: Inasmuch as the Grantee has constructed and now is maintaining and operating the water utility property and facilities in, upon and under 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 upon its passage, approval and publication. This Ordinance, or a summary thereof in compliance with Section 50-901A, Idaho Code, shall be in full force and affect thirty (30) days after its passage, approval and publication in the official newspaper of the City of Eagle, Idaho. PASSED AND ADOPTED by the Council of the City of Eagle, Idaho this 10th day of September 2002. APPROVED by the Mayor of the City of Eagle, Idaho this 10th day of September 2002. Rick Yzag Mayor Sharon K. Moore, Eagle City Clerk (SEAL) 1vpPgf-c- Page 4 ACCEPTANCE EAGLE WATER, as the franchisee, accepts the franchise set forth in the above Ordinance and agrees to abide by the terms and conditions thereof. DATED ay of _�0!'; , 2. By: - 1. EAG E WATER ATTEST: 4,- n Page 5 Valley Times PO Box 1790 Eagle, Idaho 83616 CEIVED & FILED (4TY OF EAGLE C 18 2002 LEGAL ADVERTISING PROOF OF PUBLICATION Route to: Account: City of Eagle Address: 310 E.State Street Eagle, Idaho 83616 Attention: Sharon Moore SEE ATTACHED PAGE %.* �Y E. I7 '•,, 427 0.9• i .,c,oTARr *= • c ,11 Identification: Ordinance No. 415 Run Dates: October 8, 2002 Number Lines 94 - 3 col. & Amount: Other: 68 - 2 col. Geneva A. Trent, being duly swom, deposes and says: That she is the Principal Clerk of Valley Times, a weekly newspaper published at Eagle, Ada County, State of Idaho; that the said newspaper is in general circulation in the said County of Ada, and in the vicinity of Meridian, Star, and Eagle, and has been uninterruptedly published in said County during a period of seventy-eight consecutive weeks prior to the first publication of this notice, a copy of which is attached hereto, and that the notice was published in Valley Times, in conformity with Section 60-108, Idaho Code, as amended, for 1 time(s) in the regular and entire issue of said paper, and was printed in the newspaper proper, and not in a supplement; and that said notice was published on the following dates: Beginning: //) — g_ Ending - /O — — 2Od2 STATE OF IDAHO ) )SS COUNTY OF ADA ) On thisqday of n the year of 2002 before me, a Notary Public, personally appeared Geneva A. Trent known or identified to me to be the person whose name is subscribed to the within instrument, and being by me first duly sworn, declared that the statements herein are true, and acknowledged to me that she executed the same. Notary F is for Idaho Residing at: Boise, Idaho My Commission expires: 01/06/05 October 8, 2002 ORDINANCE NO. 415 Valley Times AN ORDINANCE IN ACCORDANCE WITH IDAHO CODE 50-328, 50-329 AND 50-329a GRANTING A FRANCHISE TO EAGLE WATER, A CORPORATION, AND TO ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, MAINTAIN AND OPERATE IN, UPON AND UNDER THE PRESENT AND FUTURE STREETS, HIGHWAYS AND OTHER PUBLIC PLACES WITHIN THE CORPORATE LIMITS OF THE CITY OF EAGLE, IDAHO, WATER UTILITY PROPERTY AND FACILITIES FOR SUPPLYING WATER AND WATER SERVICE TO THE CITY, THE INHABITANTS THEREOF, AND OTHERS FOR A TERM OF 20 YEARS, INCLUDING THE NONEXCLUSIVE RIGHT TO PHYSICALLY LOCATE AND MAINTAIN WATER LINES, PIPES, EQUIPMENT OR OTHER WATER FACILITIES; SETTING FORTH AN AGREEMENT NOT TO COMPETE; RESERVING POWER OF EMINENT DOMAIN; PROVIDING FOR THE PAYMENT OF FRANCHISE FEES; AND SPECIFY- ING OTHER LIMITATIONS, TERMS AND CONDITIONS GOVERNING THE EXERCISE OF SAID FRANCHISE, AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF EAGLE, IDAHO THAT: SECTION 1: The City of Eagle, Idaho (hereinafter called the "City") hereby grants to EAGLE WATER, a corpora- tion, 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 (20) years from the effective date of this Ordinance, however, with the right to amend by mutual agreement in accordance with Section 15, to construct, extend, improve, maintain and operate in, upon and under the present and future streets, alleys, highways and other public places within the corporate limits of the City, water utility property and facilities for supplying water 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 water lines, pipes, equipment or other water facilities of the Grantee or other parties, (provided, that Grantee shall comply with the City's requirements for water 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 water 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 water property and facilities in, upon and under 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 including all applicable state and federal regulations and all construction standards presently in effect by the Idaho Public Utilities Commission (PUC) 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, alley, highways and other public places within the corporate limits of the City for the purpose of installing, maintaining and operating pipes, lines, conduits, valves, fire hydrants, meters, vaults and wire and other equipment and appurtenances for the purpose aforesaid, or to repair and improve such water 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 ten 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, through the chief of its fire department or other properly authorized officer, may use water from the fire hydrants for extinguishing fires, washing or flushing drains, gutters, and sewers, in its streets, avenues, alleys and other public places and for sprinkling the public streets, whenever the City Council and Mayor or board of health deem it necessary. The water so used by the City shall be without additional compensation to Grantee. In consideration for the privileges and benefits of this use of water and the covenants contained in this ordinance, the City covenants that this franchise and the plant and all property now or hereafter acquired, owned, constructed, maintained and operated under this franchise by Grantee, shall be exempt from the payment of all municipal taxes and assessments which are or may be assessed by City during the term of this franchise. When the franchise or other property of Grantee is not exempted by the City, then the City covenants to pay Grantee, as rental, a sum equal to the amount Grantee pays or is required to pay to the City as they accrue and become due, out of the general revenues of City. The Grantee's performance of the covenants contained in this ordinance and the granting to City of the privileges and benefits above are in effect a payment of the taxes and assessments, which are or may be assessed by the City during the term of this franchise. In all other cases not specified in this ordinance where Grantee supplies the City with, or the City uses, water, it shall be paid for by the City out of its general revenues at the rates in place and as established by the PUC. SECTION 6: The City shall have the right and privilege to install and maintain lines and pipes for its own use for its fire, police, airport and other services adjacent to lines 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 install, maintain and operate such lines and pipes 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 conduits and facilities. Any such lines 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, lines, facilities and appurtenances. SECTION 7: 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 water utility property or facilities. SECTION 8: Upon acceptance of this franchise by Grantee and before Grantee should 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 $1,000,000.00 per occur- rence. The City of Eagle 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 9: The water service to befurnished 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 order 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 terms 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 10: 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 water it sells within the corporate limits of the City to customers, less uncollectables. 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. Page 7 SECTION 11: 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 water service provider (other than the City who utilizes the City's streets, alleys or other public places to provide water service within the City, during the term of this franchise agreement. SECTION 12: 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 13: 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 14: In consideration of Grantee's undertaking hereunder and as exists upon the effective date of this ordinance, the City agrees not to engage in the business of providing water service during the life of this franchise or any extension thereof in the certificated area approved by the PUC as of September 10, 2002 and as subsequently amended by the PUC. Nothing herein contained shall he 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 water service provider during the terms of this franchise agreement unless the water service provider has received approval to provide water service within the City from the Idaho Public Utilities Commission, and the City has imposed the same franchise fee on the water service provider as paid by the Grantee. SECTION 15: In the event of an amendment to the laws, rules or regula- tions of the City of Eagle, the State of Idaho, or the Public Utilities Commission of Idaho applicable to their 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, sixty (60) days notice shall be required on the part of the 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 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 determina- tion. SECTION 17: Sale, assignment or lease of this franchise is prohibited without prior written consent of the City. The City's consent under this Section shall not unreasonably denied. SECTION 18: The City shall assume the cost of publication of this franchise; as such publication is required by law. SECTION 19: Inasmuch as the Grantee has constructed and now is maintaining and operating the water utility property and facilities in, upon and under 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 upon its passage, approval and publication. This Ordinance, or a summary thereof in compliance with Section 50- 901A, Idaho Code, shall be in full force and affect thirty (30) days after its passage, approval and publication in the official newspaper of the City of Eagle, Idaho. PASSED AND ADOPTED by the Council of the City of Eagle, Idaho this 10th day of September 2002. APPROVED by the Mayor of the City of Eagle, Idaho this 10th day of September 2002. Rick Yzaguirre, Mayor ATTEST: Sharon K. Moore, Eagle City Clerk (SEAL) NOTICE OF HEARING NOTICE IS HEREBY GIVEN pursuant to the Ordinances of the City of Meridian and the Laws of the State of Idaho that the Planning and Zoning Commission of the City of Meridian will hold a public hearing at the Meridian City hall, 33 East Idaho Avenue, Meridian, Idaho, at the hour of 7:00 p.m. October 24, 2002, for the purpose of reviewing and considering the applications of: Joint School District No. 2 for Preliminary Plat approval of 2 building lots and 1 other lot on 39.23 acres in an R-4 zone forEducation Campus Subdivision , and a Conditional Use Permit for an educational campus consisting of elementary school, charter / professional technical high school buildings, and school district administration center in an R-4 zone for Education Campus Subdivision located at 3800 North Locust Grove Road. PUBLISH 7"' and 21" of October, 2002 Account: City of Eagle Address: 310 E. State Street Eagle, Idaho 83616 Attention: Sharon Moore Valley Times PO Box 1790 Eagle, Idaho 83616 RECEIVED & FILED CITY OF EAGLE SEP 0 3 2002 File' LEGAL ADVERTISING PROOF OF PUBLICATIO R0i,1.„ to Identification: Ordinance No. 415 Run Dates: August 20, 2002 See- rfa iec! pal e - Number Lines 5 col. X 89 lines Amount:] Other: Geneva A. Trent, being duly swom, deposes and says: That she is the Principal Clerk of Valley Times, a weekly newspaper published at Eagle, Ada County, State of Idaho; that the said newspaper is in general circulation in the said County of Ada, and in the vicinity of Meridian, Star, and Eagle, and has been uninterruptedly published in said County during a period of seventy-eight consecutive weeks prior to the first publication of this notice, a copy of which is attached hereto, and that the notice was published in Valley Times, in conformity with Section 60-108, Idaho Code, as amended, for / time(s) in the regular and entire issue of said paper, and was printed in the newspaper proper, and not in a supplement; and that said notice was published on the following dates: Beginning: STATE OF IDAHO ) )SS COUNTY OF ADA ) L On this30 day of �T in the year of 2002 before me, a Notary Publi(personally appeared Geneva A. Trent known or identified to me to be the person whose name is subscribed to the within instrument, and being by me first duly sworn, declared that the statements herein are true, and acknowledged to me that she executed the same. Notary P lic for Idaho Residing at: Boise, Idaho My Commission expires: 01/06/05 SECTION 18: The City shall assume the cost of publication of this franchise; as such publication is requtrea ny Eaw. SECTION 19: inasmuch as the Grantee has constructed and now is maintaining and operating the water utility property and facilities in, upon and under 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 upon its passage, approval and publication. This Ordinance, or a summary thereof in compliance with Section 50-901A, Idaho Code, shall be in full force and effect thirty (30) days after its passage, approval and publication in the official newspaper of the City of Eagle, Idaho. PASSED AND ADOPTED by the Council of the City of Eagle, Idaho this day of August 2002. APPROVED by the Mayor of the City of Eagle, Idaho this day of August 2002. ATTEST: Rick Yzaguirre, Mayor Sharon K. Moore, Eagle City Clerk (SEAL) ORDINANCE NO. 415 AN ORDINANCE IN ACCORDANCE WITH IDAHO CODE 50-328, 50-329 AND 50-329a GRANTING A FRANCHISE TO EAGLE WATER, A CORPORATION, AND TO ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, MAINTAIN AND OPERATE IN, UPON AND UNDER THE PRESENT AND FUTURE STREETS, HIGHWAYS AND OTHER PUBLIC PLACES WITHIN THE CORPORATE LIMITS OF THE CITY OF EAGLE, IDAHO, WATER UTILITY PROPERTY AND FACILITIES FOR SUPPLYING WATER AND WATER SERVICE TO THE CITY, THE INHABITANTS THEREOF, AND OTHERS FOR A TERM OF 20 YEARS, INCLUDING THE NONEXCLUSIVE RIGHT TO PHYSICALLY LOCATE AND MAINTAIN WATER LINES, PIPES, EQUIPMENT OR OTHER WATER 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, AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF EAGLE, IDAHO THAT: SECTION 1: The City of Eagle, Idaho (hereinafter called the "City") hereby grants to EAGLE WATER, 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 (20) years from the effective date of this Ordinance, however, with the right to amend by mutual agreement in accordance with Section 15, to construct, maintain and operate in, upon and under the present and future streets, alleys, highways and other public places within the corporate limits of the City, water utility property and facilities for supplying water 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 water lines, pipes, equipment or other water facilities of the Grantee or other parties, (provided, that Grantee shall comply with the City's requirements for water 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 water 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 water property and facilities in, upon and under 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 including all applicable state and federal regulations and all construction standards presently in effect by the Idaho Public Utilities Commission (PUC) 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 responsitility 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, alley, highways and other public places within the corporate limits of the City for the purpose of erecting and maintaining the meters, posts, poles, towers, or other supports for its equipment or for the purpose of laying, maintaining and operating gipes, lines, conduits, vaults and wire and other equipment underground for the purpose aforesaid, or to repair and improve such water system and to extend the same; provided that when the Grantee or any person or Forporation 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, through the chief of its fire department or other properly authorized officer, may use water from the fire hydrants for extinguishing fires, washing or flushing drains, gutters, and sewers, in its streets, avenues, alleys and other public places and for sprinkling the public streets, whenever the City Council and Mayor or board of health deem it necessary. The water so used by the City shall be without additional compensation to Grantee. In consideration for the privileges and benefits of this use of water and the covenants contained in this ordinance, the City covenants that this franchise and the plant and all property now or hereafter acquired, owned, constructed, maintained and operated under this franchise by Grantee, shall be exempt from the payment of all municipal taxes and assessments which are or may be assessed by City during the term of this franchise. When the franchise or other property of Grantee is not exempted by the City, then the City covenants to pay Grantee, as rental, a sum equal to the amount Grantee pays or is required to pay to the City as they accrue and become due, out of the general revenues of City. The Grantee's performance of the covenants contained in this ordinance and the granting to City of the privileges and benefits above are in effect a payment of the taxes and assessments, which are or may be assessed by the City during the term of this franchise. In all other cases not specified in this ordinance where Grantee supplies the City with, or the City uses, water, it shall be paid for by the City out of its general revenues at rates mutually agreed upon but not exceeding the reasonable rates charged for water supplied to or used by other consumers. SECTION 6: The City shall have the right and privilege to install and maintain lines and pipes for its own use for its fire, police, airport and other services adjacent to lines 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 install, maintain and operate such lines and pipes 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 conduits and facilities. Any such lines 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, lines, facilities and appurtenances. SECTION 7: 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 water utility property or facilities. SECTION 8: Upon acceptance of this franchise by Grantee and before Grantee should 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 51,000,000.00 per occurrence. The City of Eagle 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 51,000,000, 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 9: The water 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 order 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 terms 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 10: 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 water it sells within the corporate limits of the City to customers, less uncollectables. 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. (Continued on Page 14)