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HomeMy WebLinkAbout05222ORDINANCE NO. 5222 AN ORDINANCE GRANTING TO CENTEL CORPORATION - SOUTHERN COLORADO POWER A NON - EXCLUSIVE FRANCHISE AND RIGHT TO FURNISH AND SELL ELECTRI- CITY TO THE CITY AND TO ALL PERSONS, BUSINESS AND INDUSTRY WITHIN THE CITY; TO CONSTRUCT, INSTALL, MAINTAIN, AND OPERATE ALL FACILITIES REASONABLY NECESSARY TO PROVIDE ELECTRICITY WITHIN THE CITY; AND TO MAKE REASONABLE USE OF THE STREETS, ALLEYS, BRIDGES, VIADUCTS, PUBLIC PROPERTY, AND PUBLIC WAYS AS MAY BE NECESSARY TO CARRY OUT THE TERMS OF THIS ORDINANCE BE IT ORDAINED BY THE PEOPLE OF PUEBLO, COLORADO, that: ARTICLE I Grant of Franchise Section. 1. Grant of Franchise The City of Pueblo (the "City ") hereby grants to CENTEL CORPORATION - Southern Colorado Power (the "Company "), for the period of, and subject to the conditions, terms and provisions contained in this Ordinance, a non- exclusive right and obligation to furnish and sell electricity to the City and to all persons, businesses, and industry (hereinafter collectively referred to as "residents ") within the City. Subject to the conditions, terms and provisions contained in this Ordinance, the City also hereby grants to the Company a non - exclusive right to construct, install, maintain, and operate all facilities reasonably necessary to provide electricity within the City and a non - exclusive right to make reasonable use of the streets, alleys, bridges, viaducts, public property, and public ways as may be necessary to carry out the terms of this Ordinance. These rights and obligations shall extend to all areas of the City as it is now constituted, and to additional areas as the City may increase in size by annexation or otherwise. Section 2. Street Lighting Agreement The rights and franchises granted in this Agreement encompass the right and duty to provide street lighting service to the City. The rights, obligations, terms and conditions for the provision of street lighting service to the City are contained in a separate agreement between the City and the Company. A breach of this Ordinance by the Company shall be cause for revocation by the City of the Street Lighting Agreement. Section 3 . Term of Franchise The term of the franchise granted by this Ordinance shall be for twenty -five (25) years, beginning August 12, 1985 at expiration of present franchise. ARTICLE II Franchise Fee Section 1 . Franchise Fee In consideration for the grant of this franchise, the Company shall pay the City a sum equal to three percent (3 %) of all gross revenue per annum derived from the sale of electricity within the City. "Gross revenue" as used herein shall mean any revenue derived under authorized temporary or permanent rates, or otherwise, from sales of electricity within the City of Pueblo, after the adjustment for the net write -off of uncollectable accounts and corrections of bills theretofore ren- dered. Included within "gross revenue" shall be all amounts paid to the Company by the City or any of its departments, including the Board of Water Works of Pueblo, Colorado. Section 2 . Payment Schedule For the franchise fee owed on gross revenues received after the effective date of this Ordinance, payment shall be made by the Company in monthly installments based upon the actual gross revenues received in the previous month. Payment shall be made no later than thirty (30) days after the end of the month for which the fee is calculated. The Company shall provide the City with a -2- copy of calculations and the work papers used in calculating the monthly amount so paid. On or before November 1, 1985, and on or before November 1 of each year there- after, the Company shall provide the City with its estimate of the total franchise fee payments which should be paid to the City for the next succeeding calendar year. All payments shall be made to the City Director of Finance. The City Manager, or his authorized representatives, shall have access to the books of the Company for the purpose of auditing or checking to insure that the franchise fee has been correctly computed and paid. Section 3 . Increase in Franchise Fees If the Company, during the term of this franchise, increases its franchise fee payments to any city or town in the State of Colorado in which it .supplies electric service under a franchise, in a manner which would result in a higher level of payments to that municipality than is herein provided and then applicable in Pueblo, the Company agrees, if requested by the City Council, to place the same franchise fee into effect under this franchise as of the first of the month following the increase of franchise fee in any other area. Section 4 . Change of Franchise Fee In addition to any increase in accordance with Section 3 above, the City Council during the year 1990 and every fifth year there- after during the term of this franchise, upon giving thirty (30) days notice to the Com- pany of its intention to do so, may reconsider the consideration to be paid by the Com- pany under this Article. If the City Council decides that the franchise fee should be increased or decreased, it shall provide for such increase or decrease by ordinance. The Company agrees to pay whatever franchise fee is so established by the City in this sec- tion; provided, however, no increase shall exceed 1% of the annual gross revenues, and further provided, that the cumulative aggregate increases shall not result in the fran- chise fee being greater than 5% of the annual gross revenues. -3- Section 5 Franchise Fee is Payment in Lieu of Other Fees So long as the Company performs its obligations under this Ordinance, including payment of the fran- chise fee, the Company will be exempt from the payment of any license fees or charges to the City, but payment of the franchise fee does not exempt the Company from any lawful taxation upon its property, from sales and use taxes, excavation permit fees and building permit charges, and from fees and charges for excavating for or construction of underground or overhead facilities that are uniform and generally applicable to contrac- tors performing similar work. Section 6 . Contract Obligation This Ordinance and the franchise herein granted constitutes a valid and binding contract between the Company and the City. In the event that the franchise fee specified in this Ordinance is declared illegal, unconsti- tutional or void for any reason by any court or other proper authority, the Company shall be contractually bound to pay the City, on the same schedule as provided herein for the franchise fee, an aggregate amount equal to the amount which would have been paid as a franchise fee. In the event that the City is prohibited by any court or other proper authority from collecting at a contractual rate, the City shall have the right to impose occupation fees or tax reasonably equivalent on an annual rate to said franchise fee. ARTICLE III Company Construction and Operation Obligations Section 1 Adequate Supply at Lowest Possible Cost The Company shall at all times take all reasonable and necessary steps to assure an adequate supply of electricity to the City and its residents, at the lowest possible cost. If the supply of electricity should be interrupted, the Company shall immediately take all necessary and reasonable actions to restore such supply at the soonest possible time. Section 2 City Approval of Construction and Design Prior to construction of any transmission lines or generating plant, building, substation, or similar structure 2.0 within the City, the Company shall furnish to the City the plans for such facilities, including all architectural, engineering, and landscaping plans. In addition, the Company shall assess and report on the impact of its proposed construction on the City environ- ment. Such plans and reports may be reviewed by the City to ensure (1) that all appli- cable laws including building and zoning codes and air and water pollution regulations are complied with, (2) that aesthetic and good planning principles have been given due con- sideration, and (3) that adverse impact on the environment has been minimized. The Company shall comply with all regulatory requirements of the City lawfully binding on the Company and shall incorporate all other changes requested by the City which are agreeable to the Company. Section 3 . Excavation and Construction The Company shall comply with all City requirements for excavation and construction and shall be responsible for obtaining all applicable permits. The City shall have the right to inspect all construction or exca- vation work to insure compliance with such City requirements. All construction, excava- tion, maintenance and repair work done by the Company shall be done in a timely and expeditious way and in a manner which minimizes the inconvenience to the public or individuals. All public and private property in dedicated easements disturbed by Com- pany construction or excavation activities shall be restored as soon as possible by the Company, at its expense, to its former condition and to the satisfaction of the City Director of Public Works. Company shall comply with City's requests for reasonable and prompt action to remedy any damage to private property adjacent to streets or dedicated easements where Company is performing excavating or construction work. Section 4 Installation and Maintenance of Company Facilities The installa- tion, maintenance, renovation and replacement of any facilities by the Company shall be subject to regulations, inspection and approval by the City's Director of Public Works. Such regulation shall include, but not be limited to the following matters: location of -5- facilities; cutting and trimming of trees and shrubs; and disturbance of pavement, side- walks, and surfaces of streets, alleys and driveways. All Company facilities shall be installed on public or dedicated easements so as to cause a minimal amount of interfer- ence with such property. Company facilities shall not interfere with the City's water mains, sewer mains or any other municipal use of the City's streets and rights -of -way. The Company shall erect and maintain its facilities in such a way so as to minimize interference with trees and other natural features. The Company shall keep in good working order all facilities constructed, erected or used within the City. Section 5 Warranty of Company Facilities The Company hereby warrants to the City that it will install, repair, renovate and replace its facilities in a good and workmanlike manner, and that the Company's facilities will be of sufficient quality and durability to provide adequate and efficient electric service to the City and its resi- dents. The Company will require warranties customary for the industry from its third - party suppliers of transformers and other major equipment incorporated into the Com- pany's facilities and shall fully enforce any such warranty. Section 6 Continued Compliance with Air and Water Pollution Laws The Company shall continue throughout the term of this franchise to pursue programs which will result in its facilities meeting the standards required by air and water pollution laws. Upon the City's request, the Company will provide the City with all reports relating to Southern Colorado Power Division prepared by it for government regulatory agencies relating to air and water pollution laws. Further, upon the City's request the Company will provide the City with all responses made by the Company to any com- plaints filed by, or with, any governmental regulatory agencies relating to air and water pollution laws. If the governmental or regulatory agency requires such reports or responses to be confidential, then Company is not obligated to furnish the reports or responses to the City. -6- Section 7 Relocation of Company Facilities If at any time the City requests the Company to relocate any facility in order to permit the City to make any public use of rights -of -way, easements or streets, to construct any public improvement, or to build any public project, such relocation shall be made by the Company at its expense. Follow- ing relocation, all property shall be restored to its former condition by the Company at its expense. Section 8 Technological Improvements The Company shall introduce and install generally, as soon as practicable, technological advances in its equipment and service in the City when such advances are technically and economically feasible, and are safe and beneficial to the City and its residents. Section 9 ., Company Obligations to the City The Company shall protect the City and its property against damage which may arise out of the exercise by the Company of any rights or privileges herein granted or the performance, or non- performance, of the Company's obligation hereunder. The Company shall be liable for any interference, damage, or injury suffered by the City or its property as a result of the exercise by the Company of any rights or privileges herein granted. Section 10 . Service to New Areas If during the term of this franchise the boundaries of the City are expanded, the Company shall extend service to residents of the newly incorporated areas at the soonest practicable time. Section 11 Construction by City Employees or Developers At the option of the City, the Company agrees to utilize City employees, on all capital improvement projects serving municipal uses so long as the City and /or its contractor agrees to work subject to the Company's reasonable specifications and inspection, and so long as the use of City employees or a City contractor does not violate the working agreement between Company and IBEW Local 667 or successor union. Company may charge the City a reasonable charge for engineering work done in preparation of capital improvement -7- projects, specifications layed out for bidding purposes on capital improvement projects and reasonable inspection charges for Company engineers or inspectors to assure that the capital improvement projects have been built in accordance with proper specifications, whether such projects are built by City employees or City's contractor. Company will confer in good faith with Subdivision developers to install at the lowest cost consistent with proper installation electric facilities within a subdivision subject to the Company's reasonable specifications and inspection. Section 12 City Not Required to Advance Funds The Company shall extend its facilities to provide electric service to the City for municipal uses within city limits or for major municipal facilities outside city limits such as the airport or sewage treat- ment plant, without requiring the City to advance funds in aid of construction, except for advances for street lighting. Section 13 Safety Regulations by the City The City reserves the right to adopt, from time to time, regulations to ensure the safety, welfare and accommodation of the public. The Company agrees to comply with all such regulations in its construc- tion, maintenance, and operation of its facilities and in the provision of electricity with the City. Section 14 Compliance With P.U.C. Regulations The Company shall assure that the electrical energy it distributes meets with the minimum standards promulgated by the Colorado Public Utilities Commission and the Company shall keep on file with the City copies of P.U.C. Rules Regulating the Service of Electric Utilities, and tariff provi- sions of the Company setting minimum standards, as the same may be amended from time to time, and the City shall have access to all records of the Company monitoring compliance with such standards. The Company shall file with the Commission prior to the franchise election such amendments to its tariffs as may be necessary to make the tariff provisions compatible with the provisions of this Agreement, and shall report to -8- the City the changes which have been made for this purpose. It shall be the duty of the Company to exercise its best efforts to assure that the tariffs of the Company as approved by the P.U.C. shall not be in conflict with any of the provisions of the franchise during the term of this franchise Section 15. Inspection, Audit and Quality Control The City shall have the right to inspect any portion of the Company's system used to serve the City and its residents, at all reasonable times. The City shall also have the right to inspect and conduct an audit of Company records relevant to compliance with any terms of this Agreement at all reasonable times. The Company agrees to cooperate fully with the City in conducting the inspection and /or audit and to correct any discrepancy affecting the City's interest in-a prompt and efficient manner. ARTICLE N Reports to City Section 1 Copies of Tariffs, all P.U.C. Filings The Company shall file with the City, and keep up to date, all tariffs, rules, regulations and policies approved by the Colorado Public Utilities Commission ( "PUC") relating to the Company. The Company shall provide the City with copies of all filings which it makes with the Colorado PUC, including, but not limited to, its annual report, all advice letters, all pre -filed testimony and all exhibits. In addition, the Company will provide the City, at the City's request, copies of all workpapers and other information relevant to the Company's application or proposal before the PUC affecting rates and services relating to municipal use. Section 2 . Detailed Bills All bills or invoices sent to the City by the Com- pany shall include lists of account numbers and items metered, and they shall specify the type of account for which charges are made, i.e., street lighting, traffic signal, general office, spot lighting, etc. The Company shall provide the City every two years with a complete listing of all the City's accounts. -9- ARTICLE V City Use of Company Facilities Section I . City Use The City shall be permitted to make all reasonable use for City purposes of any electrical distribution or transmission system of the Company, including underground facilities, without cost, provided such use does not unreasonably interfere with the use of such systems for electrical energy or create an unreasonable hazard. Such use may include, by way of explanation but not by way of limitation, the attachment of fire alarm or police signal systems or the attachment of cables for trans- mitting television or radio signals, or any other use of the system or any part thereof. The Company shall not be responsible for any modifications to the system or for payment of any costs necessitated by such use. Section 2 . Underground Conduit In addition to the rights given the City in Section 1 of this Article, whenever the Company installs new conduits or replaces exist- ing conduits, the Company shall provide adequate advance notice to permit additional installation of City conduit. If City wants additional conduit installed, it will so notify Company and timely provide conduit at its expense to Company which will install it without further cost to City. City and Company shall cooperate to minimize installation costs of underground conduit and minimize cutting the streets. Section 3 Use of Real Estate and Water Facilities For all real estate and water facilities lying within the City which are presently owned or are subsequently acquired by the Company, the Company shall permit such real estate and water facilities to be used by the public for recreational and open space use, to the extent that such use does not interfere with the Company's use of such real estate and water facilities and is safe for public use. Section 4 . Right of First Refusal If the Company, at any time during the term of this franchise, proposes to sell or dispose of any of its real estate or water -10- facilities lying within the City, the Company shall so notify the City. The property shall be offered to the City for the price contained in a bona fide offer from a third party which is acceptable to the Company. The terms thereof shall be included in the Company's notice to the City. The City shall have thirty (30) days thereafter to give written notice of its interest in, and non - binding preliminary intent, to exercise a right of first refusal to purchase this property. The City shall have an additional thirty (30) days after notice of receipt by the Company of such notice of the City's preliminary non- binding intent to exercise its first right of refusal in which to complete its firm obliga- tion to exercise its right of first refusal. The provisions shall not restrict the rights of the City to purchase or condemn the Company's facilities reserved under Article IX of this Ordinance. Section 5 . Use by City Franchisees The Company shall permit use of Com- pany transmission and distribution facilities located within the City, but not its generat- ing substation or business facilities, by other grantees of City franchise, so long as such grantees are not in competition with the Company, upon obtaining permission of City, payment of City fees, if any, and payment to the Company of a reasonable fee for use of the facilities. Section 6 . Annexation to the City When any property owned by the Company becomes eligible for voluntary annexation to the City, the Company shall petition to annex the same upon request made by the City, provided that no condition of such annex- ation shall impair the Company's ownership or then existing use of its property and water or water rights for public utility purposes. Except as herein provided, the Company agrees to meet all terms and conditions imposed upon the annexation by the City that are no more stringent than those imposed generally upon owners seeking annexation of their land to the City. -11- ARTICLE VI Indemnification of the City Section 1 . City Held Harmless The Company shall construct, maintain and operate its plant, equipment, poles, wires, mains, pipes, structures and other facilities in a manner which provides reasonable protection against injury or damage to persons or property. The Company shall save the City harmless and indemnify the City from and against all liability, or damage and all claims or demands whatsoever in nature, and all reasonable expenses, including attorneys' fees, arising out of the operations of the Company within the City. Section 2 . Notice to Company The City will provide notice to the Company of the pendency of any claim or action against the City arising out of the operations of the Company, the exercise by the Company of its franchise rights or the performance hereof by the Company. The Company will be permitted, at its own expense, to appear and defend or to assist in defense of such claim. Nothing herein stated shall limit the Company's obligation of full indemnification of the City hereunder. Section 3 . Financial Responsibility At the time of the approval by the Company of this Ordinance, and from time to time at the City's request, the Company shall provide the City with proof of its ability to meet its obligations under this Agreement, including its ability to indemnify the City as required by this Article. This proof may take the form of insurance coverage naming the City as an additional insured, adequate funding of self - insurance, or the provision of a bond. The City may require, from time to time, and the Company agrees to provide, additional funding of the Company's indemnification obligations. Section 4 Payment of Expenses Incurred by City in Relation to Franchise Ordinance The Company shall pay, in advance, the costs to be incurred by the City to conduct the franchise election. The Company shall also reimburse the City, within 30 -12- days after receipt of statement, for all reasonable consultants' and attorneys' charges, not to exceed $30,000.00, incurred by the City in the initial negotiation of this franchise. In the event the City institutes litigation against the Company for a breach of this Ordinance or for an interpretation of the Ordinance, and the City is the prevailing party, the Company shall reimburse the City for all costs related thereto, including reasonable attorneys' fees. Nothing contained in this Section shall limit the Company's indemnification obligation to the City under Article VI. Section 5 . Breach of Contract In the event the Company fails to fulfill any of the obligations under this Ordinance, the City will have a breach of contract claim against the Company, in addition to any other remedy provided by law. ARTICLE VII Undergrounding of Company Distribution Facilities Section 1 Underground Distribution Lines in New Areas The Company will place underground newly constructed electric distribution lines in accordance with the Company's tariffs and as required by subdivision or other regulations adopted by the City or other proper authority. Section 2 . Overhead Conversion The Company will cooperate with the City in undertaking and developing a program of converting to underground, existing overhead electric distribution lines in the City. In furtherance of such program and to assist in payment of the costs thereof, the City may adopt legislation necessary to accomplish this conversion which may include authorization for the creation of special districts in the nature of local improvement districts for areas of the City in which conversion to underground electric distribution is to be accomplished. The Company shall charge for such conversions in accordance with Company's filed rules and regulations governing underground service. -13- Section 3 Review of Undergrounding Program Representatives of both the City and the Company shall meet periodically to review the Company's undergrounding program. This review shall include: (a) Undergrounding programs, including conversions, public projects and replacements, which have been accomplished or are underway by the Company, together with the Company's plans for additional undergrounding. (b) The status of technology in the field of electric undergrounding. (c) Construction and operation and maintenance costs of underground lines versus overhead lines. (d) Public projects anticipated by the City. Such meetings shall be held to achieve a continuing program for the orderly undergrounding of electrical lines in the City. Section 4 Cooperation with Other Utilities The City and Company shall, when undertaking a project of undergrounding, work with other utilities or companies which have their lines overhead to have all lines undergrounded as part of the same project. When other utilities or companies are placing their lines underground, the Company shall cooperate with these utilities and companies and undertake to under- ground Company facilities as part of the same project. ARTICLE VIII Transfer of Franchise Section 1 . Consent of City Required The Company shall not sell or transfer its plant or system to or merge with another, nor transfer any rights under this franchise to another, by stock exchange or otherwise, unless the City shall approve in writing such sale, transfer, merger, stock exchange or other change in ownership. Approval of the sale, transfer, merger, stock exchange or other change in ownership shall not be unrea- sonably withheld and shall be subject to the terms of Section 2 hereof. -14- Section 2 . Transfer Fee In consideration of the premises herein contained, including that the City might share in the value this franchise granted by this Ordinance adds to the Company's operations, upon direct or indirect transfer or assignment by sale, merger, exchange of stock or otherwise other than internal corporate reorganization by the Company, of any rights under the franchise, a transfer fee to be paid by Seller shall be due and payable at the time of the approval of such transfer, assignment, by sale, merger, exchange of stock or otherwise, in one lump sum in the amount of $20,000.00 per year, or fraction thereof, for the remainder of the term of the franchise from the time of approval of the transfer to the end of said franchise period; provided, however, the maximum transfer fee shall be $375,000.00, and the minimum shall be $125,000.00. ARTICLE IX Purchase or Condemnation Section 1 City's Right to Purchase or Condemn The right of the City to construct, purchase or condemn any public utility works or ways, as provided by the Colorado Constitution and Statutes, is hereby expressly reserved. The City shall have the right to purchase or condemn all or part of the Company's facilities within or without the City limits, and portions of power purchase contracts to the extent they are legally subject to condemnation serving the Pueblo metropolitan area. The City shall have the option to purchase or condemn these facilities and /or contracts at any time during the term of this franchise, upon ninety days written notice to the Company, or within ninety days before, or after, the termination date of this franchise. Section 2 . Valuation Upon the exercise of the City's option to purchase, the parties shall negotiate in good faith to determine a purchase price which represents the fair market value of the facilities and/or contracts. At the option of the City, the parties shall establish a mutually acceptable payment schedule which may extend over a number of years. The City is not obligated to make payment in full prior to the accep- -15- tance of ownership. If the City and Company cannot reach agreement as to fair market value or acceptable payment terms within ninety (90) days after commencement of negotiations, the City may commence condemnation proceedings, and each party shall have rights provided by law relating to condemnation. No value for franchise or right of way through streets, alleys, public ways or dedicated easements shall be made in the condemnation award. Section 3 Continued Cooperation by Company In the event the City exer- cises its option to purchase or condemn, the Company agrees that it will continue to supply the services it supplies under this Ordinance, to the customers of the Company, at the City's request, for a period not to exceed nine months after the execution of a pur- chase agreement or - nine months after the date of final order by a court of competent jurisdiction in the condemnation proceedings. During that period the Company will assist the City in making an orderly transition from Company- supplied electrical services to City- supplied electrical services. Subject to the terms of this Ordinance and payment of the franchise fees, the Company shall continue to receive all revenues from supplying electrical service during the transition period. The Company shall cooperate with the City to evaluate the feasibility of acquisition by the City of Company facilities. The Company shall take no action which could inhibit the City's ability to effectively or efficiently use the acquired systems. At the City's request, after the acquisition of the system, the Company shall supply electrical power for use by the City in the City -owned system under terms and conditions and for such time periods and at such rates as shall be then established by the City and the Company by agreement. In addition, if the City purchases the Company's system, the Company shall not compete with the City in the provision of electric service within the City, as its boundaries exist at the time of pur- chase, for a period of fifty years from the date of purchase by the City. -16- ARTICLE X Removal of Company Facilities at End of Franchise Section 1 Limitations on Company Removal If, at the time of termination of this franchise, no renewal has been negotiated between the City and Company, the Company shall have no right to remove facilities from streets, public ways and dedicated easements. The Company shall continue service under the terms of this franchise for a period of nine (9) months, or until the City has either purchased or condemned the Com- pany's facilities or alternative arrangements have been made to supply electric power to the City and its residents, whichever event occurs first. Company facilities located in public streets, ways and dedicated easements which are not purchased by the City at the termination of this franchise shall be removed by the Company at Company expense and all public and private property shall be restored to its former condition. Company need not remove property that it shall continue to use and maintain. ARTICLE XI Small Power Production and Cogeneration Section 1 Company to Purchase City Generated Energy The City expressly reserves the right to engage in the production of electric energy from cogeneration and small power production (City generated power). The Company agrees to purchase such City generated power from facilities meeting the qualifications for mandatory purchase under present federal and state law and regulations. If at the time the power contract is made, the Colorado PUC declines to determine the Company's avoided costs, the purchase price for City - generated power shall be determined by whatever state or federal agency has jurisdiction for making such determination, and if no agency has such jurisdiction, the price shall be set in accordance with whatever formula had last been used by the Colorado PUC, unless the City and the Company agree otherwise. -17- Payment for City-generated power shall be _guaranteed over the term of the purchase power contract not to exceed the fran- chise term, except by mutual agreement. Section 2 Negotiations to Wheel City- Generated Power Both parties agree, that upon thirty (30) days written notice that they will negotiate in good faith in an effort to agree upon mutually acceptable terms for the Company to wheel City - generated power, as above defined, to energize City street lights, or to serve other City facilities or municipal use as the City shall designate. Section 3 . Interconnection To facilitate the purchase or wheeling of City - generated power, the Company shall interconnect with all City -owned generation. On a case -by -case basis, the City may determine at its discretion whether it desires to construct and maintain the interconnection facilities; if the City does not desire to construct and maintain the intercon- nection facilities, the Company shall do so and the City shall pay the actual cost of construction. The Company will then own and maintain the interconnection provided the cost paid by the City shall be a contribution in aid of construction as to said interconnection. Section 4 . Curtailment The Company shall not curtail contractual purchases of City- generated power except in emergency situations. Section 5 . Enforceability The Company shall be obligated to purchase City- generated power at the Company's avoided costs as herein defined for the entire length of the contract term (not to exceed the franchise term) irrespective of changes in federal or state legislation or administrative rulings with regard to cogeneration and small power production. ARTICLE XII Forfeiture Section 1 . Forfeiture If the Company fails to per- form any of the terms or conditions of this Ordinance, the City shall notify the Company. In the notice,the City ME shall specify the time, not to exceed three (3) months, in which the Company must remedy the violations. If after such time corrective actions have not been successfully taken, the City shall determine, whether any or all rights and privileges granted the Company under this Ordinance shall be forfeited. In the event of the Company's failure to perform the terms or conditions of this Ordinance is caused by or arises out of any of the following conditions: disaster, labor disturbances, strikes, lockouts, other industrial disturbances, acts of God, acts of a public enemy, war, blockade, riot, insurrection, lightning, fire, storm, flood, explosion, or any regulations, restrictions or acts of govern- mental agencies, or on account of any eventualities or conditions, whether enumerated or not, beyond the reasonable control of Company, then, provided Company makes all rea- sonable effort to perform this Ordinance no forfeiture of this franchise will take place for the period that said conditions exist and provided further, Company shall forthwith initiate and continue, with due diligence, to make every reasonable effort to remedy said condition. Section 2 . Continued Obligations Upon forfeiture, the Company shall con- tinue to provide service to this City and its residents for nine (9) months, or until the City makes alternative arrangements for such service, whichever shall first occur. If the Company fails to provide such continued service, it shall be liable for all damages to the City and its residents. ARTICLE XHI Amendments Section 1 . Amendment to Franchise At any time during the term of this franchise, the City, through its City Council, or the Company may propose amendments to this franchise by giving thirty (30) days written notice to the other of the proposed amendment(s) desired, and both parties thereafter, through their designated representa- tives, will within a reasonable time negotiate in good faith in an effort to agree upon -19- mutually satisfactory amendment(s). No amendment to this Ordinance shall be effective until mutually agreed upon by the City and the Company and until submitted to a vote of the qualified electors of the City and approval by a majority of those voting thereon. The word "amendment" as used in this Section does not include a change in franchise fee as set forth in Article II. ARTICLE XIV Miscellaneous Section 1 . Successors and Assigns The rights, privileges, franchises and obligations granted and contained in this Ordinance shall inure to the benefit of and be binding upon Centel Corporation - Southern Colorado Power, its successors and assigns, and whenever in this Agreement the word "Company" is used, it shall be deemed to refer to apply to Centel Corporation - Southern Colorado Power, its successors and assigns. Section 2 . Successor Franchise This franchise granted hereby shall supercede the franchise agreement between the City and the Company granted by Ordinance No. 2559 approved July 12, 1960 and Ordinance No. 4225, adopted August 25, 1976. Section 3 . Representatives Both parties shall designate, in writing, repre- sentatives for the Company and the City who will be responsible for performing the obligations set forth in this Ordinance. Section 4 . Severability Should any one or more provisions of this Ordinance be determined to be illegal or unenforceable, all other provisions nevertheless shall remain effective; provided, however, the parties shall forthwith enter into good -faith negotiations and proceed with due diligence to draft a term that will achieve the original intent of the parties hereunder. Section 5 . Incorporation This Ordinance, together with the Street Lighting Agreement, constitute the entire understanding and - agreement of the parties; provided, however, a breach of the Street Lighting Agreement shall not cause a forfeiture of this -20- franchise. There have been no representations made other than those contained in this Ordinance and in the Street Lighting Agreement. The covenants contained in this Ordinance and that Agreement are in consideration for one another. ARTICLE XV Approval Section 1. Voter Approval. This Ordinance shall become effective August 12, 1985 upon the majority vote in favor thereof of the qualified electors of the City voting thereon at a special municipal election to be held on Tuesday, the 13th day of August, 1985. Section 2. Company Approval. Company shall file with the City Clerk its written approval of this Ordinance and of all of its terms and provisions at least ten (10) days prior to the special municipal election. Company shall file with the City Clerk its written ratification thereof within ten (10) days after the approval of this Ordinance by the qualified electors of the City at said special municipal election. The acceptance and ratification shall be in form and content approved by the City Attorney. If Company shall fail to timely file its written acceptance or ratification as herein provided, this Ordinance shall be and become null and void. Certification Marian D. Mead, City Clerk of the City of Pueblo hereby certifies that Ordinance No. 5222 was approved by the qualified registered electors of the City at the special municipal election held August 13, 1985 by vote of 3386 in favor of the Ordinance and 1210 against the Ordinance. Dated this 16th day of August, 1985. i [S E A Lj % City Clerk -21- Centel Corporation Southern Colorado Power 115 West 2nd Street P.O. Box 75 Pueblo, CO 81002.0075 Telephone 303 545 0360 Extension 243 Kenneth A. Grobe Vice President Colorado Operations May 6, 1985 Mr. Thomas Jagger City Attorney City Hall Pueblo, Colorado Dear Mr. Jagger: Centel, as a consideration arising out of current franchise negotiations, proposes to perform a conversion of all of the Company -owned street lights in the City of Pueblo from the present mercury vapor lights to high pressure sodium lights. The conversion will be completed within two years following the com- pletion of a franchise agreement mutually acceptable to the city and the company and following a favorable vote on the franchise by the qualified electors of the city. The conversion is also conditioned upon the passage by ordinance of a mutually acceptable street light contract between the city and the company. The conversion will be completed at company expense, now esti- mated to be one million, two hundred fifty thousand dollars ($1,250,000). New street lighting rates covering the installation and operation of the high pressure sodium lights will be filed with the Colorado Public Utilities Commission prior to the start of the conversion. The proposed rates, if approved by the Commission, will provide an estimated savings, when the conversion is fully completed, of eighty -eight thousand dollars ($88,000) annually to the city, compared to the existing cost of mercury vapor lights. In earlier talks with the city's public works department and their consultant, Touche Ross, a savings figure of two hundred ninety - one thousand dollars ($291,000) annually was being discussed. At that time the city was exploring the possibility of making a one million, two hundred twenty thousand dollar ($1,220,000) contribution in aid for the proposed conversion. A large portion Centel Corporation Southern Colorado Power 115 West 2nd Street P.O. Box 75 Pueblo, CO 81002 -0075 Telephone 303 545 0360 Extension 243 C"M Kenneth A. Grobe Vice President Colorado Operations May 6, 1985 Mr. Thomas Jagger City Attorney City Hall Pueblo, Colorado Dear Mr. Jagger: This is to advise the city that Centel will build a new office building in the downtown area of Pueblo following the completion of a franchise agreement mutually acceptable to the city and the company and following a favorable vote on the franchise by the qualified electors of the city. The building may be owned by the company or obtained on a long term lease arrangement. Bar- ring unforseen difficulties, the new building will be ready for occupancy within three years following the date of the franchise election. It will be of a size sufficient to accommodate the company's administrative offices and Pueblo division offices as now oper- ating out of the building at 115 West Second Street in Pueblo. The company interprets "downtown" as that area encompassed by Tenth Street on the north, "C" Street on the south, Santa Fe Avenue on the east and Elizabeth on the west. Sincerely, 24 e Grobe Vice President KAG:mb _ r City of Pueblo THOMAS E. JAGGER City Attorney 127 West, First National Bank Bldg. PUEBLO, COLORADO 81003 TO: Marian Mead FROM: City Attorney RE: Southern Colorado power, a division of Centel Corporation - Franchise Ordinance No. 5222 DATE: July 12, 1985 Please retain the enclosed letters from Centel dated May 6, 1985 relating to the construction of an office building in the downtown area and conversion of present mercury vapor street lights to sodium lights in your Ordinance No. 5222 file. Very truly _yours, ILI 7 Thomas E. J ge TEJ:sm /enc. cc: John M. Bramble, Cite Manager �— Centel Corporation Southern Colorado Power 115 West 2nd Street P.O. Box 75 Pueblo, CO 81002.0075 Telephone 303 545 0360 Extension 243 Kenneth A. Grobe Vice President Colorado Operations July 19, 1985 Ms.'Marian D. Mead City Clerk City of Pueblo #1 City Hall Place Pueblo, Colorado Re: Ordinance No. 5222, an ordinance granting to Centel Corporation,Southern Colorado Power a non - exclusive franchise and right to furnish and sell electricity to the City and to all persons, business and industry within the City. Dear Ms. Mead: Pursuant to Article XV, Section 2 of Ordinance No. 5222 Centel Corporation, Southern Colorado Power hereby files its written approval of that Ordinance and all of its terms and provisions. Very truly yours, CENTEL CORPORAT ON ,� Kenneth A. robe Vice President KAG:mb Centel Corporation Southern Colorado Power 115 West 2nd Street P.O. Box 75 Pueblo, CO 81002.0075 Telephone 303 545 0360 Extension 243 Kenneth A. Grobe Vice President Colorado Operations August 14, 1985 Ms. :Marian D. :Mead City of Pueblo P. O. BOX 1427 Pueblo, Colorado 1 ArZI Re: Ordinance No. 5222, an ordinance granting to Centel Corporation- Southern Colorado Power a non - exclusive franchise and right to furnish and sell electricity to the City and to all persons, business and industry within the City. Dear Ms. Mead: Pursuant to Article XV, Section 2 of Ordinance No. 5222, Centel Corporation- Southern Colorado Power hereby files with you its written ratification of Ordinance No. 5222 granting to Centel the right to furnish and sell electricity to the City and to all persons, business and industry within the City for a period of twenty -five (25) years. That Ordinance having been approved by the qualified electors of the City at a special municipal election held the 13th day of August, 1985, Centel Corporation -- Southern Colorado Power hereby ratifies said Ordinance and agrees that it will perform the obligations of Centel Corporation- Southern Colorado Power pursuant to its terms. Very truly you s, Kenneth A. Grobe Vice President KAG:mb bcc: W. F. Mattoon W: E. Anderson Centel Corporation Southern Colorado Power 115 West 2nd Street P.O. Box 75 Pueblo, CO 81002 -0075 Telephone 303 545 0360 Extension 243 Kenneth A. Grobe Vice President Colorado Operations August 14, 1985 Ms. Marian D. :Mead City of Pueblo P. O. Box 1427 Pueblo, Colorado Re: Ordinance No. 5222, an ordinance granting to Centel Corporation- Southern Colorado Power a non - exclusive franchise and right to furnish and sell electricity to the City and to all persons, business and industry within the City. Dear Ms. Mead: Pursuant to Article XV, Section 2 of Ordinance No. 5222, Centel Corporation- Southern Colorado Power hereby files with you its written ratification of Ordinance No. 5222 granting to Centel the right to furnish and sell electricity to the City and to all persons, business and industry within the City for a period of twenty -five (25) years. That Ordinance having been approved by the qualified electors of the City at a special municipal election held the 13th day of August, 1985, Centel Corporation- Southern Colorado Power hereby ratifies said Ordinance and agrees that it will perform the obligations of Centel Corporation- Southern Colorado Power pursuant to its terms. Very truly you s, mil/ Kenneth A. Grobe Vice President KAG:mb City of Pueblo October 2, 1985 Mr. Kenneth A. Grobe Vice - President Colorado Operations Centel 115 West Second Street Pueblo, CO 81002 Re: Franchise Ordinance No. 5222 Dear Mr. Grobe: This letter will certify that on May 29, 1985, Ordinance No. 5239, submitting to a vote of the qualified registered electors the question of the granting of a franchise to Centel for the provision of electrical service within the City of Pueblo as set forth in Ordinance No. 5222, was passed on first presentation and ordered published by title and public hearing set for June 10, 1985. Ordinance No. 5239 was published by title in the Pueblo Chieftain, a newspaper of general circulation in the City of Pueblo on May 30, 1985 and republished June 27, 1985. A hearing was held on June 10th, 1985 on Ordinance No. 5239 and continued to June 24, 1985, and thereafter Ordinance No. 5239 was passed on second and final presentation by the City Council on June 24, 1985. Notice of the election was posted in each precinct polling place as required by the Municipal Election Code. Ordinance No. 5222 was duly submitted to the qualified elec- tors of Pueblo, a municipal corporation, at a special election held on August 13th, 1985. The qualified electors of the City of Pueblo approved at that special election Ordinance No. 5222 by a vote of 3,386 in favor of the Ordinance and 1,210 against the Ordinance. This letter will further certify that on July 12, 1985 pub- lication was duly made in the Pueblo Chieftain, a newspaper of general circulation, in the City of Pueblo of Ordinance No. 5222 and of the special election to be held to consider it. OFFICE OF CITY CLERK P.O. Box 1427 Pueblo, Colorado 81002 (303) 5444747 This letter will further certify that Centel did file with me, as City Clerk, its written approval of Ordinance No. 5222 and all of its terms and provisions more than ten days prior to the special election held August 13th, 1985 by its letter dated July 17th, 1985, a copy of which said letter is attached hereto. This letter further certifies that Centel did file with me, as City Clerk, its written ratification of Ordinance No. 5222 within ten days after the special election held August 13th, 1985 by its letter dated August 14th, 1985, a copy of which said letter is attached hereto. Very truly yours, (S E A L) Marian Mead City Clerk of Pueblo, a Municipal Corporation Attachments (2) -2- O'Hare Plaza �. . 1sF�v 8725 Higgins Road Chicago, ll. 60631 Telephone 3 12 399 25GO Dale 1. Parker Vice President and Treasurer September 30, 1991 Mr. Thomas E. Jagger City of Pueblo Office of the City Attorney 127 Thatcher Building Pueblo, CO 81003 Re: Sale of Centel's Electric Properties to Utilicorp Dear Mr. Jagger: The captioned transaction closed on September 30, 1991. Pursuant to Article VIII §2 of Ordinance No. 5222 enclosed is Centel's check in the amount of $375,000 in payment of the franchise transfer fee. Sincerely, DIP:gcg Enclosure �.f ✓L.- i wp ph 'payee will please retain this statement Reference 52854 Payment of the frand to Art. VIII §2 of Or Discounts Taken ise transfer fee dinance No. 5222 Net Amount 375,000.00 pursuant Check Number 10- 073543 z CEWEL Centel Corporation Chicago, IL 60631 This po yment is in full settlement of the account listed. Z ^.ental Corporation Date of Check 9 -26 -91 Check Number 73543 ^h;cago, IL 6063! PAY THREE HUNDRED SEVENTY FIVE THOUSAND DOLLARS AND 00 CENTS 66 -156 531 Void After 90 Days Pay to the Order of. CITY'OF - PUEBLO Amount $375,000.00* OFFICE OF THE CITY ATTORNEY ATTN MR THOMAS E JAGGER 127 THATCHER BUILDING =first union National sank PUEBLO CO 81003 a ,f North Carolina ;trapel Hill, North Carotins 11 1 0735430 i:053101560: 7999805657111 THOMAS T. FARLEY WILLIAM F. MATTOON RICHARD W. KNUOSEN DAVID W. CROCKENBERG DANIEL C. KOGOVSEK GARRETT FONDA (1915 -1981) OF COUNSEL HARRY S. PETERSEN MAURICE A. EVENSEN HENRY P. HAYS Ms. Marian D. Mead City of Pueblo P.O. Box 1427 Pueblo, Colorado 81002 Dear Marian: PETERSEN & FONDA PROFESSIONAL CORPORATION ATTORNEYS AT LAW 650 THATCHER BUILDING, P. O. BOX 35 PUEBLO, COLORADO 81002 (303) 545 -9330 October 3, 1985 Re: Ordinance No. 5222 DENVER OFFICE: 1700 GRANT STREET, SUITE 700 303 EAST 17TH AVENUE DENVER, COLORADO 80203 (303) 893 -9330 REPLY TO: I enclose a xerox copy of Southern Colorado Power Division's letter to you dated July 19, 1985, with the return receipt xeroxed on the back, as well as a xerox copy of the August 14, 1985, letter and return receipt. Based on these I have no concern about representing to the P.U.C. that these letters were mailed and received. I suspect someplace in the filing the other one will turn up. If you have any questions s, please advise. Very truly yot WFM:rh enc. wyll"a� '(. ( t 1, � • L- a�Q.p °� l (Decision No. C85 -1506) BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO IN THE MATTER OF THE APPLICATION OF CENTEL CORPORATION FOR A CERTI- FICATE OF PUBLIC CONVENIENCE AND NECESSITY TO EXERCISE FRANCHISE RIGHTS IN THE CITY OF PUEBLO, PUEBLO COUNTY, COLORADO. APPLICATION NO. 37268 ORDER OF THE COMMISSION GRANTING A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY TO EXERCISE FRANCHISE RIGHTS. December 12, 1985 STATEMENT BY THE COMMISSION: On October 7, 1985, Centel Corporation (Centel or Applicant) filed Application No. 37268 for an order granting to it a certificate of public convenience and necessity authorizing the exercise of franchise rights in the City of Pueblo, Pueblo County, Colorado. Notice of the application was given by the Commission on October 17, 1985, in accordance with § 40 -6- 108(2), C.R.S. No protest, objection, or petition to intervene or otherwise participate in the proceeding has been filed by any pers.on within the time prescribed. Accordingly, Application No. 37268 is non - contested and unopposed, and under § 40- 6- 109(5), C.R.S., may properly be determined without the necessity of a formal oral hearing. FINDINGS OF FACT THE COMMISSION FINDS: . 1. Applicant is a public utility within the meaning of the Public Utilities Act of the State of Colorado, and is engaged in the business of generating electrical energy by steam power plants located in Pueblo, in Pueblo County, Colorado; at Canon City, in Fremont County, Colorado; and at Rocky Ford, in Otero County, Colorado, and in transmitting and distributing such electrical energy by means of transmission and distribution lines in the Counties of Pueblo, Otero, Bent, Crowley, El Paso, Fremont, Teller and Custer, in the State of Colorado, which electrical energy Applicant sells for light, heat, power and all other purposes to which the energy is applicable, either directly to consumers or wholesales the energy to other public utilities for distribution and sale to consumers. 2. Applicant is a corporation organized and existing under the laws of the State of Kansas, and has been duly authorized to do business as a public utility in the State of Colorado, and is duly authorized and empowered by its Articles of Incorporation, as amended, among other things, to engage in the business aforesaid, and to do all the matters and things as set forth in its Articles of Incorporation. A true copy of the authorization of Applicant to do business in the State of Colorado is on file with this Commission and reference is made to the authorization for a full statement of the objects and purposes for which Applicant was and is incorporated and of the business in which it is authorized to engage. 3. The steam power plants at Pueblo, Canon City and Rocky Ford are all interconnected by transmission lines, and, together with the transmission and distribution.lines, emanating and branching therefrom, for many years past have been owned and operated by Applicant and its predecessors in title. Among the communities which are, and for many years past have been, served by Applicant's system, is the City of Pueblo, a municipal corporation, sometimes referred to hereafter as "The City of Pueblo" or "The City" in the County of Pueblo, and the inhabitants of the City, together with the inhabitants of the surrounding territory. That the City of Pueblo has a population of about 100,117 people, and Applicant serves 40,701 customers in the City. H The City is served with electrical energy by Applicant - alone, and no other public utility has any plant or facilities for the generation of electrical energy or any line or lines for the transmission or distribution of electrical energy in the City and the City and its inhabitants have no means of securing electrical service save through and by means of the plants and lines of Applicant, and the public convenience and necessity of The City of Pueblo, a municipal corporation, and its inhabitants, require the granting and exercise of the franchise rights set out in the ordinance and the continued maintenance and operation of its facilities, lines, plant and system, and the extension thereof as needed, in order to supply electrical energy for light, heating, power, and all other purposes to Pueblo, a municipal corporation and its inhabitants. 4. On August 13, 1985, after previous proceedings and publications in accordance with the Charter of the City of Pueblo in such case made and provided, the qualified electors of Pueblo, a municipal corporation, approved the adoption of Ordinance No. 5222 granting to the Applicant a franchise for electric light, heating, power and other purposes in the City. The ordinance was approved by a vote of 3,386 in favor and 1,210 opposed. A copy of the franchise ordinance, so approved along with a certificate of the Clerk of the City of Pueblo, a municipal corporation, and other required documents marked Exhibit A are attached to the application and made a part of the application by reference. 5. Applicant attached to the application Exhibit B, a map showing generally the territory covered by Applicant's electrical generating and transmission system in the territory served, and attached Exhibit C, a map showing generally its transmission and distribution lines within the City of Pueblo and the streets, avenues, alleys, and public places'of the City in, upon or along which it is proposed to exercise the right or privilege granted by the ordinance. 6. Written acceptance by Applicant of the ordinance was duly filed with the City Clerk on August 14, 1985, and a copy was attached to the application marked Exhibit D. 7. Applicant states there is no other person, corporation, or municipality operating in, or supplying electrical energy, as a public utility, for light, power, heating or other purposes in the City of Pueblo and Applicant will not compete with any other public utility in furnishing electricity in the City or in the area adjacent thereto. 8. Applicant's present capital investment in the City of Pueblo and the territory immediately tributary thereto is approximately $37,353,675. 9. Applicant states information required under Appendix H, Paragraph IV A of the Commission's Rules of Practice and Procedure is included in and with the Application as follows: 2 I F (Because the applicant has been and is presently the supplier of electrical energy for Pueblo, a municipal corporation, some of Appendix H, paragraph IV -A information has been omitted.) ITEM NO CROSS REFERENCE 1. Introductory paragraph Exhibit 3 in Application No. 30669 - Securities; Exhibit 8 in Application No. 31203 - Securities; Exhibit 8 in Application No. 31914 - Securities; Exhibit 8 in Application No. 32482 — Securities; and Exhibit 6 in Application No. 33111 - Securities; and Exhibit 2 in Application r No. 34946- Securities. 2. Exhibit B and C hereto. 3. Omitted, not applicable. 4. Omitted, already on file with the Commission. 5. Omitted, the Annual report of Centel Corporation for the year ended December 31, 1984. It was filed with the Commission April 1, 1985, and reference is made to said report. 6. Paragraph 8 7. Competent evidence will be presented at the hearing to show qualifications of applicant to conduct the utility operations sought in the application, and that public convenience and necessity requires the granting of the application. 8. Paragraph 4 and Exhibits A and D hereto. 9. Omitted, not applicable. 10. Notice, Exhibit E, was contemporaneously published in the Pueblo Chieftain, a newspaper of general circulation.in the City of Pueblo, and in the service area of Applicant, in accordance with Rule 18 -11.A. of the Commission's Rules of Practice and Procedure. CONCLUSIONS ON FINDINGS OF FACT The public convenience and necessity of the City of Pueblo require the exercise of the rights sought herein by Centel. THEREFORE THE COMMISSION ORDERS THAT 1. Centel Corporation is granted a certificate of public convenience and necessity to exercise franchise rights in the City of Pueblo, Pueblo County, Colorado, in accordance with Ordinance No. 5222, passed by the qualified registered electors of the City at the special municipal election held August 13, 1985, and attached to the application as Exhibit A. 2 Centel Corporation shall surcharge, and separately indicate on the bills of its customers residing in the City of Pueblo, the franchise charges authorized by ordering paragraph 1 of this Decision. 3. This Order is effective forthwith. DONE IN OPEN MEETING the 12th day of December 1985. (S E A L) THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO `o��issto,yo�,� RONALD L. LEHR a ..., •• `0.a EDYTHE S. MILLER v , c '� ?�► a•��'w'' ° �o``� ANDRA SCHMIDT Commissioners ATTEST: A TRU COPY Harry f " Jr. Executive Secretary 0906P /jw I i n y t'