HomeMy WebLinkAbout09673ORDINANCE NO. 9673
AN EMERGENCY ORDINANCE AMENDING THE BALLOT TITLE
FOR BALLOT QUESTION 2A TO USE CERTAIN BALLOT
LANGUAGE SUBMITTED BY OPPONENTS OF BALLOT
QUESTION 2A IN ORDER TO ALLOW THE MAY 5, 2020
COORDINATED ELECTION TO PROCEED AS SCHEDULED
AND SUBMITTING TO THE ELIGIBLE ELECTORS OF THE CITY
OF PUEBLO, COLORADO AT THE SPECIAL MUNICIPAL
ELECTION TO BE HELD ON MAY 5, 2020, PROPOSED
AMENDMENTS TO THE CHARTER OF THE CITY OF PUEBLO
AUTHORIZING THE BOARD OF WATER WORKS OF PUEBLO,
COLORADO TO OPERATE A WATER AND ELECTRIC WORKS
BY THE ADOPTION OF ORDINANCE NO. 9654 AND
TERMINATING THE FRANCHISE AGREEMENT WITH BLACK
HILLS/COLORADO ELECTRIC UTILITY COMPANY, LP AND
AUTHORIZING THE PURCHASE OR CONDEMNATION OF THE
ELECTRIC DISTRIBUTION, TRANSMISSION AND
GENERATION SYSTEMS OF BLACK HILLS/COLORADO
ELECTRIC UTILITY COMPANY, LP OR OTHERS LOCATED IN
THE STATE OF COLORADO AS DETERMINED NECESSARY BY
THE BOARD OF WATER WORKS OF PUEBLO, COLORADO
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
There is hereby submitted to a vote of the registered electors of the City of Pueblo at
the Special Municipal Election to be held on May 5, 2020 proposed amendments to the
Charter of the City of Pueblo authorizing the Board of Water Works of Pueblo, Colorado to
operate a Water and Electric Works by the adoption of Ordinance No. 9654 set forth below
and further authorizing the City to terminate the Franchise Agreement with the Black
Hills/Colorado Electric Utility Company, LP (“Black Hills”) and further authorizing the Board of
Water Works of Pueblo, Colorado to purchase or condemn the Certificate of Public
Convenience and Necessity of Black Hills or others and any electric distribution, transmission
and generation systems located in the State of Colorado as determined necessary by the
Board of Water Works of Pueblo, Colorado. The ballot question (submission, clause and title)
therefore shall be as follows:
QUESTION NO. 2A - WATER AND ELECTRIC WORKS
SHALL THE FRANCHISE AGREEMENT WITH BLACK HILLS/COLORADO ELECTRIC UTILITY COMPANY, LP
BE TERMINATED AND SHALL THE CHARTER OF THE CITY OF PUEBLO BE AMENDED TO AUTHORIZE THE
BOARD OF WATER WORKS OF PUEBLO, COLORADO TO OPERATE A WATER AND ELECTRIC WORKS BY
THE ADOPTION OF ORDINANCE NO. 9654 AND SHALL THE BOARD OF WATER WORKS OF PUEBLO,
COLORADO, AS AN ENTERPRISE AND INSTRUMENTALITY OF THE CITY OF PUEBLO, BE AUTHORIZED
TO ISSUE WITHOUT VOTER APPROVAL AND NOTWITHSTANDING THE PROVISIONS OF ANY
INCONSISTENT LAW, BONDS AND OTHER OBLIGATIONS, PAYABLE FROM ANY BOARD OF WATER
WORKS FUNDS OR OTHER REVENUE, INCLUDING REVENUE FROM WATER CHARGES, BOTH TO
PROVIDE WATER-RELATED SERVICES AND TO PURCHASE, CONDEMN OR OTHERWISE ACQUIRE BY ANY
LAWFUL MEANS, THE CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY OF BLACK HILLS/
COLORADO ELECTRIC UTILITY COMPANY, LP, OR OTHERS, AND ANY ELECTRIC DISTRIBUTION,
TRANSMISSION AND GENERATION SYSTEMS LOCATED IN THE STATE OF COLORADO, AS DETERMINED
NECESSARY BY THE BOARD OF WATER WORKS OF PUEBLO, COLORADO, INCLUDING WITHOUT
LIMITATION DISTRIBUTION FACILITIES, TRANSMISSION LINES, GENERATING STATIONS, EQUIPMENT,
ELECTRIC LIGHT AND POWER WORKS AND ALL APPURTENANCES THERETO INCLUDING BOTH REAL
AND PERSONAL PROPERTY AND SHALL THE BOARD OF WATER WORKS OF PUEBLO, COLORADO, AS
AN ENTERPRISE AND INSTRUMENTALITY OF THE CITY OF PUEBLO, HAVE THE AUTHORITY TO ISSUE
WITHOUT VOTER APPROVAL AND NOTWITHSTANDING THE PROVISIONS OF ANY INCONSISTENT LAW,
BONDS AND OTHER OBLIGATIONS, PAYABLE FROM ANY AVAILABLE REVENUE TO CONSTRUCT,
RELOCATE, INSTALL AND EXPAND THE EQUIPMENT AND FACILITIES AND OTHER ASSETS COMPRISING
THE ELECTRIC DISTRIBUTION, TRANSMISSION AND GENERATION SYSTEMS OF BLACK
HILLS/COLORADO ELECTRIC UTILITY COMPANY, LP, OR OTHERS, WITHIN THE STATE OF COLORADO,
PAYING ALL NECESSARY AND INCIDENTAL COSTS RELATED THERETO AND BE AUTHORIZED TO ENTER
INTO CONTRACTS WITH THIRD PARTIES TO MAINTAIN AND OPERATE SUCH ELECTRIC DISTRIBUTION,
TRANSMISSION AND GENERATION SYSTEMS AND SHALL THE WATER AND ELECTRIC WORKS
FUNCTION AS AN ENTERPRISE EXCLUDING ITS ACTIVITIES FROM THE APPLICATION OF TABOR WHICH,
IN PART, REQUIRES THAT AN ENTERPRISE RECEIVE UNDER 10% OF ANNUAL REVENUE IN GRANTS
FROM ALL COLORADO STATE AND LOCAL GOVERNMENTS COMBINED AND SHALL THE CITY COUNCIL
BE AUTHORIZED TO ADOPT FUTURE ORDINANCES AND RESOLUTIONS AND SHALL THE BOARD OF
WATER WORKS OF PUEBLO, COLORADO BE AUTHORIZED TO ADOPT FUTURE RESOLUTIONS AND
SHALL THE MAYOR BE AUTHORIZED TO TAKE FUTURE ACTIONS NECESSARY OR APPROPRIATE TO
CARRY OUT THE REQUIREMENTS, PURPOSE AND INTENT OF THIS MEASURE?
_____ For the measure
_____ Against the measure
SECTION 2.
The text of Ordinance No. 9654 is as follows:
BE IT ORDAINED BY THE PEOPLE OF THE CITY OF PUEBLO that (brackets
indicate matter being deleted; underscoring indicates new matter being added):
SECTION 1.
Sections 2-5, 15-2, 15-5 and 15-6 of the Charter of the City of Pueblo are hereby
amended to read as follows and Sections 15-7 and 15-8 are hereby added to Article 15 of the
Charter of the City of Pueblo:
Section 2-5. Appointive Boards and Commissions - Unless otherwise required
by law, all boards and commissions shall be appointed by the Mayor, subject to Council
confirmation and shall have such powers and perform such duties as are prescribed by
the Charter or by ordinance.
Appointments by the Mayor shall specify the term of office of each individual in order to
achieve overlapping of tenure.
All members shall be subject to removal by the appointing authority.
All boards and commissions shall choose their own chairmen and operate in accordance with
the rules of procedure as set forth by the appointing authority.
Notwithstanding the foregoing, the Mayor and Council shall have no jurisdiction or control
over the independent Board of Water Works of Pueblo, Colorado and shall act in
accordance with \[Section 15-2\] Article 15 of this Charter.
Section 15-2. Board of Water Works of Pueblo, Colorado - The Board of Water
Works of Pueblo, Colorado is hereby authorized to operate a Water and Electric
Works which shall be an enterprise and instrumentality of the City of Pueblo. Title
to the properties of the former water districts \[now\] previously consolidated and any
property of the water and electric works \[is in the City of Pueblo\] shall be in the name
of the Board of Water Works of Pueblo, Colorado as an enterprise and
instrumentality of the City of Pueblo. The entire control, management and operation
thereof shall be exercised by an independent Board named “Board of Water Works of
Pueblo, Colorado” over which the Council and the Mayor shall have no jurisdiction or
control, but shall adopt all ordinances requested by said Board which shall be reasonably
necessary to assist the Board in the management of the water and electric works system
and property, or to \[enable\] assist said Board to purchase or condemn additional water,
water rights, reservoirs, reservoir sites and electric distribution, transmission and
generation systems or property of any kind, needed to supply water and electricity. \[to
the City or its inhabitants.\] The Board shall consist of the five current members of
the Board of Water Works of Pueblo, Colorado who shall continue to serve until
their respective terms of office expire. \[all elected at large for six year terms as
hereafter provided. The Board shall initially consist of the following five members: one
previously elected holding a six year term expiring December 31, 1965; one previously
elected holding a six year term expiring December 31, 1967; one holding a six year term
expiring December 31, 1969, elected at the November 1963 election; one appointed by
the City Council from January 1, 1964 to December 31, 1965, and one appointed by the
City Council from January 1, 1964 to December 31, 1967.\] Members of the Board of
Water Works of Pueblo, Colorado shall be elected at large for six year terms. As the
term of each member expires, a member to fill a new term of six years shall be elected,
said terms to commence the first day of January next after their election. \[The Board of
Water Works shall have and exercise all powers which are granted to cities of the first
class by the Constitution and Laws of the State of Colorado.\] E\[e\]xcept for the power to
levy and collect taxes directly or indirectly, the Board of Water Works of Pueblo,
Colorado will have and exercise all the powers of the City including those granted
by the Constitution and by the laws of the State of Colorado, now or in the future,
in regard to purchasing, condemning, acquiring, constructing, leasing, extending
and adding to, maintaining, conducting and operating the water and electric works
for all uses and purposes, and everything necessary, pertaining or incidental
thereto, including authority to dispose of real or personal property not useful for
or required in the water or electric works. The Board of Water Works of Pueblo,
Colorado shall have authority to generate and dispose of energy for water works
purposes or any other purpose of the City and may sell energy to territories outside
the City. Surplus water may be supplied to territories outside the City until same is
needed by the inhabitants of the City. \[It\] The Board of Water Works of Pueblo,
Colorado, in its name, shall have power to make and execute contracts, \[in the name
of the City\] take and give instruments of conveyance, and do all other things
necessary or incidental to the powers herein granted and in so doing may make
such special designation in such documents as will indicate that the Board of
Water Works of Pueblo, Colorado is acting as an enterprise and instrumentality of
the City pursuant to the Charter. The Board of Water Works of Pueblo, Colorado
shall institute and defend all litigation affecting its powers and duties, \[or in relation to
the water works system, and as to all other property under its management\] the water
and electric works, and any of its property and rights. In any matter affecting the
powers, duties, properties, operations or trusts of the Board of Water Works of
Pueblo, Colorado, process shall be served on the Board of Water Works of Pueblo,
Colorado. The Executive Director of the Board of Water Works of Pueblo, Colorado
is hereby designated as the officer upon whom process may be served in any
matter in which the Board of Water Works of Pueblo, Colorado has the sole
authority to act for the City. The enumeration of particular powers in this Charter
is not exclusive of others. The members of the Board shall continue to receive their
present salaries until changed by ordinance of the Council. This amendment shall
become effective \[January 1, 1964\] when adopted by the eligible electors of the City
of Pueblo.
Section 15-5. Election - The nomination and election of the \[Commissioners and
Trustees and\] members of the Board of Water Works of Pueblo, Colorado shall be
conducted in the same manner as is herein provided for the nomination and election of
members of the Council.
Section 15-6. Contracts - No contract shall be entered into, and no purchase shall
be made by the \[Trustees or Commissioners of the existing water districts, or by the\]
Board of Water Works of Pueblo, Colorado \[involving the expenditure of a sum in excess
of One Thousand Dollars ($1,000.00)\] except for personal, professional or technical
services not lending themselves to competitive bidding, until after the publication of a
proposal for bids \[for the materials and services covered by such contracts or purchase
shall have been advertised by one publication in a daily newspaper of general circulation
in Pueblo, at least ten days prior to the making of such contract or purchase\] in accord
with a procurement policy which the Board of Water Works of Pueblo, Colorado
may prescribe by resolution.
Section 15-7. Enterprise - The Board of Water Works of Pueblo, Colorado shall
deliver electric power and water services as an enterprise, as that term is defined
by Colorado law. The Board of Water Works of Pueblo, Colorado shall be operated
and maintained as an enterprise so as to exclude its activities from the application
of Article X, Section 20 of the Colorado Constitution. The Board of Water Works of
Pueblo, Colorado may adopt, by resolution, rules governing its organization, the
calling of special meetings and the conduct of its business. A majority of the
members of the Board of Water Works of Pueblo, Colorado will constitute a
quorum.
Section 15-8. Revenue Bonds - In accordance with and through the
provisions of this section and in exercising its powers pursuant to Article 15 of this
Charter, the Board of Water Works of Pueblo, Colorado is authorized to issue
bonds or other obligations payable solely from the revenues derived or to be
derived from the functions, services, benefits or facilities of such enterprise or
from any other available funds of such enterprise. Such bonds or other obligations
shall be authorized by resolution, adopted by the Board of Water Works of Pueblo,
Colorado. Such bonds or other obligations may be issued without voter approval,
provided that, during the fiscal year of the Board of Water Works of Pueblo,
Colorado preceding the year in which the bonds or other obligations are
authorized, the Board received under ten percent (10%) of its annual revenue in
grants from all Colorado state and local governments combined or, during the
current fiscal year of the Board of Water Works of Pueblo, Colorado, it is
reasonably anticipated that the Board will receive under ten percent (10%) of its
revenue in grants from all Colorado state and local governments combined. The
terms, conditions, and details of said bonds, notes or other obligations, and the
procedures related thereto shall be set forth in the resolution of the Board
authorizing said bonds or other obligations. Each bond, note or other obligation
issued under this section shall recite in substance that said bond, note or other
obligation, including the interest thereon, is payable from the revenues and other
available funds of the Board of Water Works of Pueblo, Colorado pledged for the
payment thereof. Notwithstanding any other provision of law to the contrary, such
bonds, notes or other obligations may be issued to mature at such times as are
authorized by the authorizing resolution, shall bear interest at such rates, and shall
be sold at or above the principal amount thereof, all as shall be determined by the
Board of Water Works of Pueblo, Colorado. Notwithstanding anything in this
section to the contrary, in the case of short-term notes or other obligations
maturing not later than one year after the date of issuance thereof, the Board of
Water Works of Pueblo, Colorado may authorize its officials to fix principal
amounts, maturity dates, interest rates, and purchase prices of any particular issue
of such short-term notes or obligations, subject to such limitations as to maximum
term, maximum principal amount outstanding, and maximum net effective interest
rates as the Board of Water Works of Pueblo, Colorado prescribes. Refunding
bonds of the Board of Water Works of Pueblo, Colorado shall be issued as
provided in Part 1 of Article 56 of Title 11, C.R.S. as currently enacted or as
subsequently amended. The powers provided in this section to issue bonds, or
other obligations are in addition and supplemental to, and not in substitution for,
the powers conferred by any other law, and the powers provided in this section
shall not modify, limit, or affect the powers conferred by any other law either
directly or indirectly. Bonds, notes, or other obligations may be issued pursuant to
this section without regard to the provisions of any other law. Insofar as the
provisions of this section are inconsistent with the provisions of any other law, the
provisions of this section shall control with regard to any bonds lawfully issued
pursuant to this section. Any pledge of revenue or other funds of the Board of
Water Works of Pueblo, Colorado shall be subject to any limitation on future
pledges thereof contained in any resolution of the Board.
SECTION 2.
If any section, provision, paragraph, clause or phrase of this Ordinance is held or
decided to be unconstitutional, invalid or unenforceable for any reason, such decision shall
not affect the constitutionality, validity or enforceability of the remaining portions of this
Ordinance.
SECTION 3.
All other ordinances or portions thereof inconsistent or conflicting with this Ordinance
or any portion hereof are hereby repealed to the extent of such inconsistency or conflict.
SECTION 4.
The People of the City of Pueblo find that this Ordinance is necessary for the immediate
preservation of the public health, safety and welfare.
SECTION 5.
This Ordinance shall become effective immediately after approval of same by the
eligible electors of the City of Pueblo. Upon approval of this Ordinance, Ordinance No. 8186
shall be rescinded and the Franchise Agreement between the City of Pueblo and Black
Hills/Colorado Electric Utility Company, LP dated August 10, 2010 shall be terminated.
End of Ordinance No. 9654
SECTION 3.
The officers and staff of the City are authorized and directed to perform any and all
acts consistent with this Ordinance to implement the policies and procedures described
herein.
SECTION 4.
Savings Clause: The ballot title for Ballot Question 2A must be submitted to the Pueblo
County Clerk and Recorder on or before March 6, 2020. The immediate enactment of this
Ordinance is necessary in order to preserve and protect the health, safety and welfare of the
residents of the City. Pursuant to Sec. 3-20 of the City Charter, this Ordinance shall become
effective on the date of final action by the Mayor and City Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on February 24, 2020.
Final adoption of Ordinance by City Council on February 24, 2020.
President of City Council
Action by the Mayor:
☒ Approved on February 26, 2020 .
☐ Disapproved on based on the following objections:
Mayor
Action by City Council After Disapproval by the Mayor:
☐ Council did not act to override the Mayor's veto.
☐ Ordinance re-adopted on a vote of , on
☐ Council action on __________________failed to override the Mayor’s veto.
President of City Council
ATTEST
City Clerk
City Clerk’s Office Item # S-2
Background Paper for Proposed
Emergency Ordinance
COUNCIL MEETING DATE: February 24, 2020
TO: President Dennis E. Flores and Members of City Council
VIA: Brenda Armijo, City Clerk
FROM: Mayor Nicholas A. Gradisar
SUBJECT: AN EMERGENCY ORDINANCE AMENDING THE BALLOT TITLE FOR BALLOT
QUESTION 2A TO USE CERTAIN BALLOT LANGUAGE SUBMITTED BY
OPPONENTS OF BALLOT QUESTION 2A IN ORDER TO ALLOW THE MAY 5, 2020
COORDINATED ELECTION TO PROCEED AS SCHEDULED AND SUBMITTING TO
THE ELIGIBLE ELECTORS OF THE CITY OF PUEBLO, COLORADO AT THE
SPECIAL MUNICIPAL ELECTION TO BE HELD ON MAY 5, 2020, PROPOSED
AMENDMENTS TO THE CHARTER OF THE CITY OF PUEBLO AUTHORIZING THE
BOARD OF WATER WORKS OF PUEBLO, COLORADO TO OPERATE A WATER
AND ELECTRIC WORKS BY THE ADOPTION OF ORDINANCE NO. 9654 AND
TERMINATING THE FRANCHISE AGREEMENT WITH BLACK HILLS/COLORADO
ELECTRIC UTILITY COMPANY, LP AND AUTHORIZING THE PURCHASE OR
CONDEMNATION OF THE ELECTRIC DISTRIBUTION, TRANSMISSION AND
GENERATION SYSTEMS OF BLACK HILLS/COLORADO ELECTRIC UTILITY
COMPANY, LP OR OTHERS LOCATED IN THE STATE OF COLORADO AS
DETERMINED NECESSARY BY THE BOARD OF WATER WORKS OF PUEBLO,
COLORADO
SUMMARY:
Attached is a proposed Ordinance amending the Ballot Title for Ballot Question 2A and referring the
question of electric municipalization to the voters of the City of Pueblo at the May 5, 2020 Municipal
Special Election. The amendment is necessary in order to allow the May 5, 2020 coordinated election
to proceed as scheduled.
PREVIOUS COUNCIL ACTION:
On February 10, 2020, by Ordinance No. 9662, the City Council voted unanimously to refer Ballot
Question 2A concerning electric municipalization to the voters of the City of Pueblo at the May 5, 2020
Municipal Special Election.
BACKGROUND:
On February 14, 2020, local residents Gus Sandstrom and Colennda Fratterelli, as Plaintiffs and
Contestors, through the Denver, CO law firm of Recht Kornfeld, sued the City of Pueblo by filing a
“Complaint and Verified Petition for Summary Adjudication of a Ballot Title Contest Pursuant to C.R.S.
1-11-203.5.” The lawsuit was filed in the Pueblo County District Court and was assigned Case No.
2020 CV 030087.
The lawsuit against the City was defective because it failed to comply with C.R.S. 1-11-203.5 (2) which
required the submission of alternative ballot language when the lawsuit was filed. When the City
brought this defect to the attention of the attorneys representing the Plaintiffs and Contestors, the
attorneys filed a First Amended Complaint on February 18, 2020.
The ballot title contained in Ordinance No. 9662, which was adopted by City Council on February 10,
2020, is in full compliance with the City Charter, the Pueblo Municipal Code and applicable state law.
No additional ballot language is necessary.
Judicial resolution of the ballot language dispute will delay certification by the City Clerk of the ballot
title to the County Clerk and Recorder. Further litigation will cause delay and may prevent the City
from meeting the statutory deadlines for the City’s participation in the May 5, 2020 coordinated
election.
In order to keep the May 5, 2020 election date and avoid paying the full cost of a mail ballot election
on a later date, the City is willing to use certain ballot language proposed by the Plaintiffs in their First
Amended Complaint while disagreeing with the Plaintiffs that their ballot language is necessary.
FINANCIAL IMPLICATIONS:
The City will incur the cost of a Special Municipal Election on May 5, 2020, to be conducted as a mail
ballot election by the County Clerk. The costs of the election are currently unknown, but costs will be
shared with the Pueblo West Metropolitan District and perhaps other special districts also holding
elections on May 5, 2020.
BOARD/COMMISSION RECOMMENDATION:
On November 21, 2019, the EUC recommended, by a unanimous vote, that the City create a municipal
electric utility and purchase or condemn Black Hills electric facilities located in the City and Pueblo
County.
STAKEHOLDER PROCESS:
Members of the public are the primary stakeholders affected by the proposed Ordinance. The issue
of creating a Municipal Electric Utility has been discussed at various public City Council meetings and
work sessions and public meetings of the EUC for the past two years.
ALTERNATIVES:
If this Ordinance is not approved, the voters of the City of Pueblo will not be given the opportunity to
vote on the creation of a municipal electric utility.
RECOMMENDATION:
This Ordinance must be adopted in order to refer the municipalization ballot measure to the voters.
Attachments: Proposed election ordinance and proposed Ordinance No. 9654.