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0057 Gas System Franchise 1962 ORDINANCE N0, � AN ORDINANCE OF THE VILLAGE OF CHUBBUCK, IDAHO, G .ANTING TO INTERMOUNTAIN GAS COMPANY A THIRTY (30) YEAR FRANCHISE TO CONSTRUCT , MAINTAIN, AND OPERATE A GAS TRANSMISSION AND DISTRIBUTION SYSTEM; PROVIDING F�jR THE USE OF STREETS AND RULES GOVERNING THE SAME ; SUBJECTING THE GRANTEE TO ALL POWERS OF THE VILLAGE ; SETTING FORTH THE PULES GOVERNING REPAIRS AND RECONSTRUCTION OF THE STREETS ; PROVIDING FOR THE TERM OF THE FRANCHISE AND GRANT; PROVIDING FOR THE RIGHT OF INSPECTION BY THE VILLAGE OF GRANTEE ' S PLANS , ACCOUNTS , AND BOOKS ; REQUIRING GRANTEE TO FURNISH CERTAIN MAPS ; SETTING FORTH THE ANNUAL PAYMENT TO THE VILLAGE , AND THE FILING OF ANNUAL REPORTS WITH THE VILLAGE ; REQUIRING GRANTEE TO INDEMNIFY VILLAGE , AND FILE EVIDENCE OF INSURANCE ; EQUIRING COMPLIANCE WITH SAFETY REGULATIONS ; SETTING TIME LIMIT IN WHICH TO COMPLY WITH FRANCRISE ; SETTING FORTH AN AGREEMENT NOT TO COMPETE , RESERVING POWER OF EMINENT DOMAIN; PROVIDING FOR SURRENDER OF FRANCHISE ; GRANTING RIGHT TO SALVAGE AFTER POSTING BOND; REQUIRING WRITTEN ACCEPTANCE ; PROVIDING FOR CONSENT TO SALE , ASSIGNMENT OR LEASE ; SETTING FORTH VILLAGE ' S RIGHT TO ADDITIONAL PAYMENTS; PROVIDING FOR THE PURCHASE BY THE VILLAGE AT ITS ELECTION OF THE GRANTEE ' S GAS SYSTEM, WORKS , PLANT AND PROPERTY WITHIN THE CORPORATE LIMITS OF CHUBBUCK, IDAHO, WITH THE EXCEPTION OF PROPERTY NEITHER USED NOR USEFUL IN THE PUBLIC SERVICE , CASH ON HAND OR IN BANKS , NOTES, BONDS , SHARES OF STOCK, OR OTHER SECURITIES , AND ANY ACCOUNTS RECEIVABLE OTHER THAN CUSTOMERS ACCOUNTS RECEIVABLE LESS THAN SIXTY (60) DAYS OLD; THE MANNER, METHOD, TERMS , AND CONDITIONS THEREOF , AND FOR THE RELEASE OF PROPERTY SO PURCHASED FROM MORTGAGES , TRUST 'DEEDS AND OTHER ENCUMBRANCES; PROVIDING FOR THE APPOINTMENT OF A BOARD OF THREE (3) APPRAISERS TO MAKE INVENTORY AND VALUATION, AND THEIR QUALIFICATIONS , P011ERS, AND DUTIES ; PROVIDING FOR THE DETERMINATION BY SAID APPRAISERS OF THE PUP.- CHASE PRICE TO BE PAID BY THE VILLAGE , AND RIGHT OF PARTIES TO SUBMIT QUESTION TO COURT DETERMINATION; THE PAYMENT OF SUCH PURCHASE PRICE AND THE CONVEYANCE AND DELIVERY OF POSSESSION OF THE PROPERTY SO PURCHASED; THE TERMINATION OF THIS AND ALL OTHER GAS FRANCHISES HELD BY GRANTEE FROM CHUBBUCK UPON FINAL CONSUMMATION OF SUCH SALE , DELIVERY OF POSSESSION TO THE VILLAGE AND PAYMENT OF THE FULL PURCHASE PRICE ; PROVIDING THAT NOTHING IN THIS ORDINANCE BE CONSTRUED AS PREVENTING THE SALE TO THE VILLAGE OF GRANTEE ' S GAS SYSTEM, WORKS , PLANT AND PROPERTY BY VOLUNTARY AND MUTUAL AGREEMENTS BETWEEN THE VILLAGE AND THE GRANTEE ; PROVIDING FOR PAYMENT OF PUBLICATION COSTS ; PROVIDING FOR VILLAGE ' S CON- SENT TO GAS STORAGE FACILITIES ; SETTING FORTH PENALTIES AND FORFEITURES, SEPARABILITY, AND REPEAL . BE IT ORDAINED BY THE CHAIRMAN AND BOARD OF TRUSTEES OF THE VILLAGE OF CHUBBUCK, IDAHO: SECTION I Grant of Authority There is hereby granted to Intermountain Gas Company, -9- a corporation, its successors and assigns (hereinafter collec- tively referred to as 'Grantee") the right and authority to construct , install , maintain and operate a gas transmission and distribution system, including mains , pipes , conduits , services and other necessary structures and appliances appertaining in, under, upon, over , across and along the streets , alleys , bridges , and public places within the present and future corporate limits of the village of Chubbuck, Idaho, (herein- after referred to as "Village") for the furnishing, transmission, distribution and sale of gas , whether artificial , natural , mixed or otherwise , for heating, domestic, industrial and other purposes and for transmitting gas into , through and beyond said village . SECTION II Use_of,Streets`and�Rules_Governing_Same Grantee shall secure a permit for any opening it shall make in the streets , alleys and public places in the Village and shall be subject to all applicable ordinances , but no fee shall be required of Grantee for any such permit . The location or relocation of all facilities shall be made under the super- vision and with the approval of such representatives as the governing body of the Village may designate for such purpose , but not so as unreasonably to interfere with the proper opera- tion of Grantee ' s facilities and service . Whenever the Village shall pave or repave any street or shall change the grade of line of any street or public place or shall construct or reconstruct any conduit , water main , sewer or water connection or other city public works or utility, it shall be the duty of the Grantee when so ordered by the Village to change its mains , services andother property in the streets or public places at its own expense so as to conform to the established grade of line of such street or public place and so as not to interfere with the conduits , sewers and other mains of the Village as constructed or reconstructed ; however , the Grantee shall not be required to relocate pipes , mains and appurten- ances when the street, alley or public ground in which they are located is vacated for the convenience of abutting property owners and not as an incident to the public improvement , unless the reasonable cost of such relocation and the loss and expense resulting therefrom it first paid to Grantee . When- ever the Village grants a permit for an excavation in a street, alley or other public ground and the work contemplated by the permit may expose gas pipes , mains and appurtenances of the grantee , the Village shall promptly furnish a copy of the permit to Grantee . SECTION I I I Grantee Subject to all Powers of Villager-_Roles Go'verning�P.epair and�Reeonstruction oY Streets The exercise of privileges herein granted shall be subject at all times to all of the powers of the Village and all regulatory ordinances adopted pursuant thereto . The Grantee shall not unnecessarily or unreasonably obstruct the use of or injure any street or alley, and shall within a reason- able time and as early as practicable upon completion of any construction or repair work, restore all Village streets and alleys to the same order and condition as they were before the excavation was made insofar as reasonably possible , and shall maintain, repair and keep in good condition for a period of one year all portions of streets and alleys disturbed by it or its agents . The Grantee shall be responsible for. any obstruction or any defect in any street , alley or other public place caused by it in the operation and maintenance of its properties occurring at any time and shall promptly remove any such obstruction or defect . Any such obstruction or defect which, after proper notice to grantee demanding removal or repair as the case may be , is not promptly removed or repaired by the Grantee may be taken care of by the Village and the costs thereof shall be charged against Grantee and may be enforced as a lien upon any of its properties or assets . SECTION IV Tera of Franchise and Grant The right, authority and grant herein and hereby made to said !;grantee , its successors and assigns , is granted for , and limited in time to, a period of Thirty (30) years from the date it takes effect . SECTION V Village_Right_to Inspection__of_Gr_antee ' s Plans , Accounts ,�and rBooks - Grantee to� Furnish -Maps -' "--___-_ The Village shall have access at all reasonable hours to all of the Grantee ' s plans , contracts and engineering , ac- counting , finance , statistical , customer and service records relating to the property and operations of Grantee within the Village . The Grantee shall furnish the Village with a complete set of maps , including plans and profile of the distribution system of the Grantee and any future extensions . SECTION VI Paymentto Village and Filing of Annual,Z,Tritten_Report wth_the Village As consideration for this Franchise and grant said Grantee , its successors and assigns , during the franchise period , C shall pay to the Village the following stipulated percentage of the gross annual receipts received from all sales of gas within the corporate limits of the Village through use , opera- tion or possession of this franchise and grant : (1) Three per cent (3%) per each year during the life of this franchise and grant . S- ch annual payments shall be in lieu of any and all other fees , charges , licenses or taxes (other than ad valorem taxes) which the Village may impose for the rights and privileges herein granted or for the privilege of doing business within the Village . The Grantee shall file by March 31 of each year with the Village a written report for the preceding calendar year , verified by the affidavit of the general manager , auditor , treasurer , or assistant treasurer of said Grantee , which report shall contain a statement in such form and detail as shall from time to time be prescribed by the Village , of all the gross receipts arising from all sales of gas by said Grantee within the Village for the calendar year preceding such report , and at the same time the Grantee shall pay to the Village the stipulated percentage of the gross annual receipts due for the year for which said report is made andfiled . The word "years' as used in this Section VI means the calendar year , except for the first year which willcommence on the date when this franchise and grant is in effect and end on the following December 31 . SECTION V I I GranteeLiability - Indemnification_ It is expressly understood and agreed by and betweenthe Grantee and the Village that the Grantee shall save the Village _ti_ harmless from all loss sustained by the Village on account of any suit , judgment , execution, claim, or demand whatsoever, resulting from negligence on the part of the Grantee in the con- struction, operation or maintenance of its gas system in the Village . The Village shall notify the Grantee ' s representative in the Village within ten (10) days after the presentation of any claim or demand, either by suit or otherwise , made against the Village on account of any negligence as aforesaid on the part of the Grantee . SECTION VIII Insurance Upon acceptance of this franchise by Grantee and before Grantee shall have any rights hereunder , Grantee shall file with the Village Clerk a certificate evidencing the insurance of the Grantee against property damage in an amount not less than $50, 000 .00 and bodily injury with limits of not less than $50,000 .00 per person and $500,000. 00 total for each occurrence .. SECTION IX Safety Regulation Compliance Grantee shall comply with and conform to all safety regulations promulgated by the Village or any regulatory body having jurisdiction thereof . SECTION X Time Limit In Which to Comply with Terms of Franchise Grantee shall have a reasonable time within which to Lay ;as mains and otherwise comply with the terms of this franchise . SECTION XI Agreement_not_to Compete_- Reserve to Village Power—of Eminent—Domain In consideration of Grantee ' s undertaking hereunder as -7- evidenced by its acceptance hereof the Village agrees not to engage in the business of distributing and selling gas during the life of this franchise or any extension thereof in com- petition with the Grantee , its successors and assigns ; but nothing herein contained shall be construed or deemed to prevent the Village from exercising at any time any power of eminent domain granted to it under the laws of the State of Idaho. SECTION X I I Surrender_of Franchise -_Grantee ' s Right rto�Salvage rafter�posting-Bond In the event natural gas at any time shall cease to be available to grantee for the distribution and sale hereunder , Grantee reserves the right to surrender this franchise and in the event of such surrender prior to any expiration or termination of this franchise , or in any of such events , Grantee reserves the right to salvage all of its plants , works and facilities after posting bond satisfactory to the Village to insure restoration of Village ' s streets and alleys damaged by such salvage operation . SECTION XIII_ Written Acceptance The Grantee shall within thirty (30) days after the pass- age and publication of this ordinance file with the Village Clerk its acceptance of this franchise in writing signed by its proper officers and attested by its corporate seal . SECTION XIV Sale , Assignment_or Lease_of,Franchise No sale , assignment , or lease of this franchise shall be effective until it is approved by the Village , provided, -8- however , that nothing herein contained shall be construed to require consent or to prevent the grantee of this franchise and grant from including it in a mortgage or trust deed executed for the purpose of obtaining money for corporate objects . SECTION XV Right_of�Village toAdditi.onalPayments _ _ � In the event the Grantee shall pay any other Village or city any greater stipulated percentage of gas sales than herein- before provided the Village shall have the right upon demand of requiring Grantee to pay for the same period of time such higher percentage so paid to such other village . SECTION XVI Right_of _Village _to_Purchase`Gas_Sytem At the expiration of this franchise and ;rant , or at any time during the first six months of the twenty-first (21) or the twenty-sixth (26) yearef the franchise , the Village , at its election and upon the payment of the fair valuation to be made in the manner hereinafter provided , may purchase and take over to itself the gas system, works , plant and property of the Grantee in its entirety , as hereinafter defined and pro- vided , The fiar valuation of said gas sytem, works , plant and property, within the Village of Chubbuck, Customers Accounts Receivable and Accrued Unbilled Revenue , shall be ascertained and determined by a Board of Appraisers composed of three (3) professional engineers , each of whom shall have had at least five (5) years experience in the design, construction and operation of gas works systems in cities , and at least five (5) years experience in the valuation of public utilities properties of equal magnitude to that to be appraised , one to be s'lected -9- by the Village , one by the Grantee , and the two thus chosen shall select the third which said third appraiser shall not be other- raise employed by or connected directly or indirectly with the Village or the Grantee . The Village and the Grantee shall bear jointly, share and share alike , the cost including fees and expenses of the third appraiser and the cost and expenses of the Board , but the cost , including fees and expenses of each of the other two members of the Board of Appraisers , shall be paid by the party by or on whose behalf such evidence is introduced . If the Village elects so to purchase , it shall within such time give written notice to the Grantee at its office in Boise Idaho , and at the same time , or within fifteen (15) days there- after appoint an appraiser_ , and within said time give Witten notice of such appointment to the Grantee , at its office in Boise , Idaho . The Grantee shall , within fifteen (15) days after the receipt of said last notice , appoint an appraiser and give written notice of said appointment to the Ch,airman or Clerk of said Village . These two appraisers within thirty (30) days after service of the last mentioned notice , shall select the third appraiser and within said time give written notice to the Chairman of Clerk of said Village and to the Grantee of such appointment. Said third appraiser shall be Chairman of said Board . If any appraiser so appointed shall_ die , resign, or refuse or fail to act , the party by whom he shall have been appointed shall within thirty (30) days after written demand by the other party appoint his successor . If the appraiser so dying, resigning orrefusing or failing to act shall be the third appraiser his successor shall be selected in like manner . In the event no agreement can be reached as to the appointment of a third appraiser , he shall be -10- appointed by the District Court in and for F! -Ie County upon application of either party. The board of three appraiser , when selected , shall forth- with proceed diligently to inventory and ascertain the fair valuation of Grantee ' s gas system, works , plant and property, except Customers Accounts Receivable and Unbilled Revenue as it existed on the first of the month immediately preceding the date of the appointment of said third appraiser , and within ninety (5'0) days after the appointment of said third appraiser said Board shall file with the Clerk of Chubbuck and with the Grantee identical written and signed reports of such inventory and valuation, together with the basis , rule or forumla used by the Board in arriving at such fair valuation . The Grantee shall permit the Board at al! reasonable times , free and complete access to and examination of all its books , records , files , dates and properties , which may relate to or have any bearing on, or relevancy, for the making of said inventory and valuation . The Board may make such investigation, and , on reasonable notice to the Village and the Grantee , hold such hearin-s as in the Board ' s discretion may be necessary for the purposes of making said inventory and appraisemen.t . Both the Village and the Grantee may be Ixesent at any such hearing by their officers , agents , or attorneys , and may examine and cross-examine witnesses and introduce such other evidence as they desire . Within thirty (30) days after the filing of such report , inventory and valuation as above provided , either or both the Village and the Grantee may serve upon the other and the chair- main of said Board written e<;eeptions to all or any part thereof . The Chairman shall fix a time , which time shall be within thirty (30) days following the expiration of the time for filing except- ions giving not less than ten (10) days notice thereof to the Board members to the Village , and to the Grantee and at siad time and place or such other time and place in Chu.bbuck, Idaho , to which the said hearing may be postponed by the Chairman, the Board shall proceed diligently to hear and determine such exceptions and the Village and Grantee shall be entitled to appear , be represented and be heard thereat . Upon the close of such hearing the Board shall , within thirty (30) days thereafter , file with the Clerk of Chubbuck, Idaho, and with the Grantee either identical written and signed state- mems of any changes or modifications of the report , inventory and valuation previously made , or at its election revised report , inventory and appraisement in the same form as provided for the original , showing such changes and modifications, where- upon said report , inventory and valuation as so revised , changed , or modified shall stand as the Board ' s final report , inventory and valuation . In the event no changes or modifications are made by the Board in the report , inventory and valuation pre- viously made , a written and signed statement to that effect shall within said thirty (30) days period be likewise filed with the Village Clerk and the Grantee and appended to the original report, inventory and appraisement which shall thereupon stand as the Board ' s final report , inventory and appraisement . The valuation so fixed by the Board , or by any two members thereof in accordance with the terms hereof , shall be final and binding upon the Village and the Grantee and such valuation, together with the cost to the Grantee of additions to its prop- erty subsequent to the first of the month preceding the date of the appointment of the third appraiser , the cost of abstracts of title or title insurance policies hereinafter required , plus -12- the amount of Customers Accounts Receivable , less the sixty (60) days past due and Accrued Unbilled Revenue of said gas system and plant as of the date on which payment for Grantee ' s property is made , shall constitute the fiar valuation of the said gas system, works , plant and property to be purchased by the Village and the purchase price therefor ; provided , however , that if either party is dissatisfied with the Valuation there fixed it may appeal to the District Court in and for Fio.tva�efit-i-l-le County, Idaho , for determination by such court after trial as by law provided in the case of an appeal from the Probate Court; or such party may file in the District Court of B-<"- v+11-e County, an appropriate type of action for judicial determination of the value of said gas system, with right of appeal to Idaho Supreme Court after final determination, the Grantee shall be bound to sell and the Village bound to buy , the rantee ' s gas system, works , plant and property for such purchase price to be paid in lawful money of the United States of America and on the terms and conditions hereinafar speci- fied within six (6) months after the Board ' s said valuation become final , or upon final court determination, or within any extension of such time for which provision is herein made , provided the Village has sufficient funds legally available therefor within said time . If such funds are not so available then all right , option and obligations , if any, of the Village to purchase , and all obligations of the Grantee to sell or require the Village to buy all or any part of the Grantee ' s gas system, works , plant and property on such valuation and purchase price so determined shall be thereby and thenceforth -released , discharged and terminated . The Grantee shall , however , and not less than thirty (30) i days prior to the expiration of the six (6) months period so -13- fixed for the payment of such purchase price , submit to the Village for its approval forms of deeds , assignments , bills of sale , releases and conveyances , good and sufficient when executed to convey and transfer to the Village the fee simple marketable title to all real estate and good title to all the remainder of Grantee ' s gas system, works , plant and property included in such sale and transfer , free and cle-r of all encum— b rances except such as are payable from the purchase price as hereinafter provided, together with the abstracts of title or title insurance policies on such real estate , showing such title to said real estate to be in Grantee . The Village shall within thirty (30) days after delivery of such instruments and abstracts make any objection thereto, otherwise the title of Grantee shall be deemed approved and accepted . In case of any valid objections the Grantee shall proceed with reasonable diligence to remove the same . Should valid objections be made and the Village have funds legally available for the purchase price within the said six (6) months period limited , or extended therefor , the time for the payment of said purchase price shall be extended until all valid objections to such title or titles are removed . Upon the removal of such objections and the payment of the purchase price as herein provided, the sale shall be consummated and possession of Grantee ' s gas system, works , plant and property so purchased and all books of account relating to the Customers Accounts receivable purchased , and construction maps , data, and title policies or abstracts delivered to the Village together with conveyances duly executed by the Grantee . The Grantee also agrees that upon full payment or deposit in trust by the Village of said purchase price in the manner hereinafter provided , the said gas system, works , plant and L, property so purchased shal become the property of the Village by virtue of this grant and payment thereunder and without the execution of any instrument of conveyance, but in no event shall the village have any rights whatever in or to Grantee's gas system, works, plant and property until such purchase price is paid in full to Grantee or deposited in trust as hereinafter provided. Every mortgage, trust deed or other encumbergnce hereafter created upon the property of the Grantee shall be subject and subordinate to the Village's right to purchase such property hereunder free and clear of all such mortgages, trust deeds or other encumberances as herein provided. If there be no such mobtgage, trust deed, or other encumberances at the time the purchase price is payable, it shall be paid to the Grantee: otherwise the Village shall deposit said purchase price with a bank at Boise, Idaho, in trust for and to be paid mver to the trustee named in such mortgages, trust deeds and other encumberances and the Grantee, as their respective rights may be agreed upon or determined between themselves without further obligation on the part of the Village. The deposit of said purchase price in trust by the Village as above provided shall release and discharge all property so purchased by theVZllage from the lien of all such mortgages, trust deeds and other encumberances, but the holders thereof shall also, upon such deposit in trust being made and upon the Village's demand, execute, acknowledge and deliver to the Village corresponding releases and discharges in writing, and any mortgage, trust deed, or other encumberance hereafter made upon the property of the Grantee shall contain appropriate provisions requiring the mortgages, trustee, or other lien-holder, as the case may be, to release from the lien thereof the gas system, works, plant and property to be sold to the Village in the event of a sale and upon the Village's compliance with the above provisions as to deposit of the purchase price in trust. -15, Upon the final consummation of the sale and delivery of possession of Grantee's gas system, works, plant and property to the said Village and payment of the full purchase pr*ce therefor, as provided herein, this frnachise and all other gas franchises from the Village of Chubbuck, Idaho held by the Grantee s#all cease and become void and of no further force or effect. The time limited in this section for the doing of any act or thing may be extended by written agreement of the Village and the Grantee. Wherever the phrase gas system, works, plant and property of the Grantee in its entirety is used in this Sectio XVI, the same shall comprise and consist of all the gas system, works, plant and property of Grantee situated within the corporate limits of Chubbuck9 Idaho, as the same nxist as of the date of said Village's Notice of Election to purchase as provided herin excepting therefrom and the same shall not include, property neither used nore useful in the public service, nor cash on hand or in the bank, notes, bonds, shares of stockt or other securities, nor any accounts receivable other than Customers Accounts Receivable less than sixty (60) days old as provided herein and none of said items so excluded from the meaning of said phrase shall be included in any axle made to the Village, nor any valuation under the provisions hereof, but the same shall remain the property of Grantee. Nothing herein shall be constructed as preventing the sale to the Village of any or all of Grantee's gas system, works, plant and property for such purchase price and on such terms and conditions as may hereafter be voluntarily and mutually agreed upon between the Village and the Grantee. SECTION XVII Publication Costs The Grantee shall assume the cost of publication of this franchise as such publication is required by law. -16- SECTION XVIII _Gas Stogie The Grantee Shall not construct, erect or use any gas storage facilities in or within three (3) miles of the Village without first obtaining the written consent of the Village to the erection, construction and use of such gas storage facilities. SECTION XIX For,feiture Any violation by the Grantee, its vendee, lessee or successors of the provisions of this ordinance, fratWhise 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 Village 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 forfeiture to proper court determination, SECTION XX Separability If any part or parts of this ordi.naczce shall be adjudged by the courts to be unconstitutional or invalid, the same shall not affect the validity of any other part or parts hereof which can be given effect without the part or parts adjudged to be unconstitutional or invalid, The Village declares that it would have passed the remaining parts of this ordinance if it had been known that such other part or parts thereof would be declared unconstitutional or invalid. .SECTION XXI R!2peal_ All ordinances and parts of ordinances of Village in conflict herewith shall be, and the same are hereby repealed. -17- PASSED BY THE BOARD OF TRUSTEES `'� L �g 1962 el 4 SIGNED BY THE CHAIRMAN� c G ' F, 1962 Ch Irma ATTEST: Village C er � d h —18—