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ORDINANCE NO.: 6085
AN ORDINANCE GRANTING A NON- EXCLUSIVE FRANCHISE BY THE CITY OF
PUEBLO TO PUBLIC SERVICE COMPANY OF COLORADO, ITS SUCCESSORS AND
ASSIGNS, TO FURNISH, SELL, DISTRIBUTE AND TRANSPORT GAS TO THE CITY
AND TO ALL PERSONS, BUSINESSES, AND INDUSTRY WITHIN THE CITY AND
THE RIGHT TO ACQUIRE, CONSTRUCT, INSTALL, LOCATE, MAINTAIN, OPERATE
AND EXTEND INTO, WITHIN AND THROUGH SAID CITY ALL FACILITIES
REASONABLY NECESSARY TO FURNISH, SELL, DISTRIBUTE AND TRANSPORT GAS
WITHIN THE CITY AND THE RIGHT TO MAKE REASONABLE USE OF ALL STREETS
AND OTHER PUBLIC PLACES AND PUBLIC EASEMENTS AS HEREIN DEFINED AS
MAY BE NECESSARY; AND FIXING THE TERMS AND CONDITIONS THEREOF.
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TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS . . . . . . . . . . . . . . . . .
1
ARTICLE 2.
GRANT OF FRANCHISE . . . . . . . . . . . . . .
4
2.1
Grant of Franchise . . . . . . . . . . . . . . . .
4
2.2
Exclusions . . . . . . . . . . . . . . . . . . . .
5
2.3
Term of Franchise . . . . . . . . . . . . . . . . .
6
ARTICLE 3.
FRANCHISE FEE . . . . . . . . . . . . . . . .
6
3.1
Franchise Fee . . . . . . . . . . . . . . . . . . .
6
3.2
Payment Schedule . . . . . . . . . . . . . . . . .
6
3.3
Change of Franchise Fee and Other Franchise Terms .
8
3.4
Franchise Fee Payment in Lieu of Other Fees . . . .
9
3.5
Contract Obligation . . . . . . . . . . . . . . . .
9
ARTICLE 4.
SUPPLY, CONSTRUCTION AND DESIGN . . . . . . .
10
4.1
Supply of Gas . . . . . . . . . . . . . . . . . . .
10
4.2
Restoration of Service . . . . . . . .
10
4.3
Obligations Regarding Company Facilities . . . . .
10
4.4
Excavation and Construction . . . . . . . . . . . .
11
4.5
Relocation of Company Facilities . . . . . . . . .
12
4.6
Service to New Areas . . . . . . . . . . . . . . .
13
4.7
City Not Required to Advance Funds . . . . . . . .
14
4.8
Technological Improvements . . . . . . . . . . . .
14
ARTICLE S.
COMPLIANCE . . . . . . . . . . . . . . . . . .
15
5.1
City Regulation . . . . . . . . . . . . . . . . . .
15
5.2
Compliance with City Requirements . . . . . . . . .
15
5.3
Supervision . . . . . . . . . . . . . . . . . . . .
16
5.4
City Review of Construction and Design . . . . . .
17
5.5
Compliance with PUC Regulations . . . . . . . . . .
18
5.6
Compliance With Air and Water Pollution Laws . . .
19
5.7
Inspection . . . . . . . . . . . . . . . . . . . .
19
5.8
Bills . . . . . . . . . . . . . . . . . . . . . . .
19
ARTICLE 6.
REPORTS TO CITY . . . . . . . . . . . . . . .
20
6.1
Reports on Company Operations . . . . . . . . . . .
20
ARTICLE 7.
ANNEXATION TO THE CITY . . . . . . . . . . . .
21
7.1
Annexation to the City . . . . . . . . . . . . . . .
21
ARTICLE 8
INDEMNIFICATION OF THE CITY . . . . . . . . . . . .
22
8.1
City Held Harmless . . . . . . . . . . . . . . . .
22
8.2
Payment of Expenses Incurred by City in Relation to
Ordinance . . . . . . . . . . . . . . . . . . . . .
23
8.3
Financial Responsibility . . . . . . . . . . . . .
23
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ARTICLE 9. TRANSFER OF FRANCHISE . . . . . . . . . . . . 24
9.1 Consent of City Required . . . . . . . . . . . . . 24
9.2 Transfer Fee . . . . . . . . . . . . . . . . . . . 24
ARTICLE 10. PURCHASE OR CONDEMNATION . . . . . . . . . . . 25
10.1 City's Right to Purchase or Condemn . . . . . . . . 25
10.2 Continued Cooperation by Company . . . . . . . . . 25
10.3 Right of First Purchase . . . . . . . . . . . . . . 26
ARTICLE 11. REMOVAL OF COMPANY FACILITIES AT
END OF FRANCHISE . . . . . . . . . . . . . . 27
11.1 Limitations on Company Removal . . . . . . . . . . 27
ARTICLE 12. TRANSPORTATION OF GAS . . . 28
12.1 Transportation of Gas for City Use . . . . . . . . 28
12.2 City Fleet Refueling Station and Fleet Conversion . 29
ARTICLE 13. FORCE MAJEURE AND FAILURE TO PERFORM . . . . . 29
13.1 Force Mal eure . . . . . . . . . . . . . . . . . . . 29
13.2 Failure to Perform . . . . . . . . . . . . . . . . 30
13.3 Judicial Review . . . . . . . . . . . . . . . . . . 31
13.4 Other Legal Remedies . . . . . . . . . . . . . . . 31
13.5 Continued Obligations . . . . . . . . . . . . . . . 31
13.6 No Waiver . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 14. AMENDMENTS . . . . . . . . . . . . . . . . . . 32
14.1 Amendments to Franchise . . . . . . . . . . . . . . 32
ARTICLE 15. CHANGING CONDITIONS . . . . . . . . . . . . . 32
15.1 Changing Conditions . . . . . . . . . . . . . . . . 32
ARTICLE.16. MISCELLANEOUS . . . . . . . . . . . . . . . . 33
16.1 Governmental Immunity . . . . . . . . . . . . . . . 33
16.2 Successors and Assigns . . . . . . . . . . . . . . 33
16.3 Third Parties . . . . . . . . . . . . . . . . . . . 33
16.4 Representatives . . . . . . . . . . . . . . . . . . 33
16.5 Severability . . . . . . . . . . . . . . . . . . . 34
16.6 Entire Agreement . . . . . . . . . . . . . . . . . 34
16.7 Reimbursement of City Costs . . . . . . . . . . . . 35
ARTICLE 17. APPROVAL . . . . . . . . . . . . . . . . . . . 35
17.1 Voter Approval . . . . . . . . . . . . . . . . . . 35
17.2 Company Approval . . . . . . . . . . . . . . . . . 35
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BE IT ORDAINED BY THE PEOPLE OF PUEBLO, COLORADO:
ARTICLE 1.
DEFINITIONS
§ 1.0 For the purpose of this franchise, the following words
and phrases shall have the meaning given in this article. When not
inconsistent with the context, words used in the present tense
include the future tense, words in the plural number include the
singular number, and words in the singular number include the
plural number. The word "shall" is mandatory and "may" is
permissive. Words not defined in this article shall be given their
common and ordinary meaning.
1.1 "City" refers to and is the municipal corporation
designated as Pueblo, Pueblo County, Colorado and includes the
territory as currently is or may in the future be included within
the boundaries of Pueblo.
1.2 "Company" refers to and is Public Service Company
of Colorado,. and its successors and assigns, but does not include
its affiliates, subsidiaries or any other entity in which it has an
ownership interest.
1.3 "Council" or "City Council" refers to and is the
legislative body of the City.
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1.4 "Distribution Facilities" refers to and is only
that portion of the Company's gas system which delivers Gas from
the down side of the regulator station to the point -of- delivery of
the customer, including all devices connected to that system.
1.5 "Facilities" refers to and are all facilities
reasonably necessary to provide Gas into, within and through the
City and include plants, works, systems, lines, equipment, pipes,
mains, gas compressors and meters.
1.6 "Gas" or "Natural Gas" refers to and is such
gaseous fuels as natural, artificial, synthetic, liquefied natural,
liquefied petroleum, manufactured, or any mixture thereof.
1.7 "Parks" or "Park Land" refers to any land within
the City that is recreation or park area owned and maintained by
the City and designated as a park or park land by the City Council.
1.8 "PMC" refers to and is the Pueblo Municipal Code,
as amended.
1.9 "Public Easements" refers to and are the public
and dedicated easements created and available for use by investor-
owned, or other public utilities for their facilities.
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1.10 "Public Utilities Commission" or "PUC" refers to
and is the Public Utilities Commission of the State of Colorado or
other authority succeeding to the regulatory powers of the Public
Utilities Commission.
1.11 "Residents" refers to and includes all persons,
businesses, industries, governmental agencies, and any other entity
whatsoever, presently located or to be hereinafter located, in
whole or in part, within the territorial boundaries of the City.
1.12 "Revenues" refers to and are those amounts of
money which the Company receives from its customers within the City
from the sale of Gas under rates authorized by the Public Utilities
Commission as well as from the transportation of Gas to its
customers within the City and represents amounts billed under such
rates as adjusted for refunds, the net write -off of uncollectible
accounts, corrections or other regulatory adjustments.
1.13 "Streets and Other Public Places" refers to and
are streets, alleys, viaducts, bridges, roads, lanes and other
public places in said City, including Public Easements.
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ARTICLE 2.
GRANT OF FRANCHISE
§ 2.1 Grant of Franchise The City of Pueblo hereby grants
to the Company, for the period specified in and subject to the
conditions, terms and provisions contained in this .franchise, a
non - exclusive right to furnish, sell, distribute and transport Gas
within the City and to the City and to all Residents of the City.
Subject to the conditions, terms and provisions contained in this
franchise, the City also hereby grants to the Company a non-
exclusive right to acquire, construct, install, locate, maintain,
operate and extend into, within and through the City all Facilities
reasonably necessary to furnish, sell, distribute and transport Gas
within and through the City and a non - exclusive right to make
reasonable use of the Streets and Other Public Places as may be
necessary to carry out the terms of this franchise. These rights
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. The City and the Company do not waive any of their
rights under the statutes and Constitution of the State of Colorado
and the United States except as otherwise specifically set forth
herein. The City retains the right to impose such regulations as
may be determined by the City Council to be necessary in the
exercise of its police power to protect the health, safety and
welfare of the public. Nothing herein contained shall limit or
restrict the Company's right to challenge the validity of any such
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regulations or the interpretation given to any such regulations or
PMC provisions by the City.
§ 2.2 Exclusions (1) The right to use and /or occupy said
Streets and Other Public Places for the proposes set forth herein
is not, and shall not be deemed to be, an exclusive franchise, and
the City reserves the right to itself to make or grant a similar
use of Streets and Other Public Places to any other person, firm or
corporation.
(2) This ordinance does not grant the Company the
right, privilege or authority to use or occupy any Parks or Park
Land of the City currently designated or as in the future may be so
designated except to the extent that Company is currently using or
occupying said Parks or Park Land and as otherwise authorized in
writing by the City. Company shall not expand its use or occupancy
of said Parks or Park Land except by specific written authorization
of City; provided, however, that nothing herein contained shall
limit or restrict Company's right to maintain, renovate, repair or
replace any such Facilities currently occupying said Parks or Park
Land.
(3) Except as otherwise specifically provided herein,
the City retains the right to use, control and regulate, through
the exercise of its police power, the use of city Streets and Other
Public Places and the space above and beneath them.
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§ 2.3 Term of Franchise This franchise shall take effect on
August 4, 1996. The term of this franchise shall be for 20 years,
beginning with said effective date of this franchise and expiring
on August 3, 2016.
ARTICLE 3.
FRANCHISE FEE
§ 3.1 Franchise Fee In consideration for the grant of this
franchise, the Company shall pay the City a sum equal to three
percent (30) of all Revenues received as defined herein, excluding
Revenues received from the City for the sale and /or transportation
of Gas to the City. The franchise fee is the only monetary
payment to the City for the rights granted in this franchise.
Payment of the franchise fee shall not exempt the Company from any
other lawful taxation upon its property or from fees and taxes that
are uniform and generally applicable to all businesses alike,
including, but not limited to, sales and use taxes.
§ 3.2 Payment Schedule For the franchise fee owed on
Revenues received after the effective date of this franchise,
payment shall be made in monthly installments not more than thirty
(30) days following the close of the month for which payment is to
be made. Initial and final payments shall be prorated for the
portions of the months at the beginning and end of the term of this
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ordinance. All payments shall be made to the City Finance
Director. The City Finance Director, or other authorized
representatives of the City as communicated in writing to the
Company, shall have access to the books of the Company for the
purpose of auditing or checking to ascertain that the franchise fee
has been correctly computed and paid.
In the event an error by the Company results in an
underpayment of the franchise fee to the City, the full amount of
such underpayment shall be paid to the City within thirty (30) days
after discovery of the error.
In the event that the Company overpays the franchise
fee in an amount less than or equal to $5,000, credit for the
overpayment shall be taken by the Company against the next
franchise fee payment. If the Company overpays the franchise fee
in an amount greater than $5,000 but less than $25,000, credit for
the overpayment shall be spread over a period not to exceed three
(3) years as specified by the City. If the overpayment is in an
amount greater than $25,000, credit for the overpayment shall be
spread over a period not to exceed five (5) years as specified by
the City. In no event shall the City be required to refund any
overpayment made as a result of a Company error which occurred more
than three (3) years prior to the discovery of the Company error.
Upon discovery by the Company of any such error by the Company, the
Company shall promptly notify the City.
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3.3 Chancre of Franchise Fee and Other Franchise Terms
Once during each calendar year of the franchise term the City
Council, upon giving thirty (30) days notice to the Company of its
intention so to do, may review and change the consideration the
City may be entitled to receive as a part of the franchise;
provided, however, the City Council may only change the
consideration to be received by the City under the terms of this
franchise to the equivalent of the consideration paid by the
Company (or which the Company obligates itself to provide the
benefit of) to any city or town in the State of Colorado in which
the Company supplies Gas under franchise.
The Company shall, report to the City within sixty ( 60 )
days of the execution of a subsequent franchise or of any change of
franchise in any other municipality that could have a financial
impact on the consideration to be paid by the Company to the City
hereunder. If the City Council decides the consideration shall be
so changed, it shall provide for such change by Ordinance;
provided, however, that the consideration is not higher than the
highest consideration paid by the Company to any municipality
within the State of Colorado. For purposes of this section,
consideration means the franchise fee established in Article 3,
Section l; and also includes any other provision which is of
similar significant financial benefit to the City.
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§ 3.4 Franchise Fee Payment in Lieu of Other Fees Payment
of the franchise fee by the Company is accepted by the City in lieu
of any occupation tax, license fee, inspection fee, or similar tax
or fee on the privilege of doing business or in connection with the
physical operation thereof, but does not exempt the Company from
any lawful taxation upon its property or any other tax not related
to the franchise or the physical operation thereof and does not
exempt the Company from payment of head taxes or other fees or
taxes assessed generally upon businesses.
§ 3.5 Contract Obligation This franchise ordinance
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, unconstitutional 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 that
would be, as near as practicable, equal to the amount which would
have been paid as a franchise fee, in which event such fees and /or
charges shall be treated as franchise fee payments for the purpose
of surcharging under the Colorado statutes. In the alternative, if
the franchise fee is so declared invalid, the City shall have the
right to impose occupation or license fees and permit charges
reasonably equivalent on an annual basis to said franchise fee. If
the Company fails to fulfill any substantial obligation under this
ordinance, the City will have a breach of contract claim against
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the Company, in addition to any other remedy provided by law or by
this franchise.
ARTICLE 4.
SUPPLY, CONSTRUCTION AND DESIGN
§ 4.1 Supply of Gas The Company shall take all reasonable
and necessary steps to provide an adequate supply of Gas to its
customers at the lowest reasonable cost consistent with long -term
reliable supplies. If the supply of Gas to its customers should be
interrupted, the Company shall take all necessary and reasonable
actions to restore such supply within the shortest practicable
time. The Company shall provide to the City a telephone number
which is not available to the general public whereby the City will
be able to obtain status reports from the Company on a 24 -hour
basis concerning interruptions of the supply of Gas in any portion
of the City.
§ 4. 2 Restoration of Service In the event the Company s gas
system, or any part thereof, is partially or wholly destroyed or
incapacitated, the Company shall use due diligence to restore its
system to satisfactory service within the shortest practicable
time.
§ 4.3 Obligations Regarding Company Facilities The Company
shall install, maintain, repair, renovate and replace its
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Facilities with due diligence in a good and workmanlike manner and
the Company's Facilities will be of sufficient quality and
durability to provide adequate and efficient Gas to the City and
its Residents. Company Facilities shall not interfere with the
City's water mains, sewer mains or other municipal use of Streets
and Other Public Places. The Company shall erect and maintain its
Facilities in such a way so as to minimize interference with trees
and other natural features. Company Facilities shall be installed
in Public Easements so as to cause a minimal amount of interference
with such property.
§ 4.4 Excavation and Construction All construction,
excavation, maintenance and repair work done by the Company shall
be done in a timely and expeditious manner which minimizes the
inconvenience to the public and individuals. All such
construction, excavation, maintenance, repair and restoration work
done by the Company shall comply with all applicable codes,
ordinances and regulations of the City and the Company shall be
responsible for obtaining all applicable permits and shall only pay
the reasonable City costs of administration associated therewith.
All public and private property disturbed by Company construction,
maintenance, repair or excavation activities caused as a result of
work within the Streets and Other Public Places shall be promptly
restored by the Company at its expense to substantially its former
condition. The Company shall not be required to restore such
disturbed property to substantially its former condition when that
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former condition violates any restrictions in Public Easements,
unless otherwise directed by the City with respect to fences and
minor landscaping, which are located within Public Easements over
which the City properly exercises control. All restoration work
under this section shall be subject to inspection by the official
City representative and compliance by the Company with reasonable
remedial action required by said official pursuant to the
inspection. The Company shall comply with the City's requests for
reasonable and prompt action to remedy all damage to public and
private property caused as a result of the Company's construction,
excavation, maintenance and repair work within the Streets and
Other Public Places. All such remedial work shall be performed at
the Company's expense. The Company shall use its best efforts to
expedite any work required to be performed as a result of a City
project.
§ 4.5 Relocation of Company Facilities If at any time the
City requests the Company to relocate any facility installed or
maintained in Streets and Other Public Places, pursuant to this
franchise or previous franchises, in order to permit the City to
make any public use of Streets and Other Public Places, to
construct any public improvement or to build any public project, or
for any municipal purpose in which the City has a financial
ownership interest, such relocation shall be made by the Company at
its expense; provided, however, that the Company shall not be
responsible for expenses of relocations which primarily benefit a
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' L
private project. All relocations required hereunder shall be
completed within a reasonable time not to exceed ninety (90) days
from the date on which the City requests that such relocation work
commence; provided however, that such time period may be enlarged
with the approval of the City, which approval shall not be
unreasonably withheld. The Company shall, in any event, be granted
an extension of time for completion of the relocation equivalent to
any delay caused by conditions not under its control. Following
relocation of Company Facilities, all property disturbed by said
relocation shall be restored to substantially its former condition
by the Company at its expense. Except where required to serve the
City as a customer, nothing herein contained shall be construed to
impose any obligation upon the City to make any payment for any
relocation of Company's Facilities whether located within, or
without, said designated areas. Nothing herein contained shall be
construed to require relocation of Company's Facilities within
private easements or other privately held property rights of the
Company.
§ 4.6 Service to New Areas If the boundaries of the City
are expanded during the term of this franchise, the Company shall
extend service to Residents in the expanded area at the earliest
practicable time and in accordance with the Company's extension
policy. Service to the expanded area shall be in accordance with
the terms of this franchise agreement, including payment of
franchise fees.
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§ 4.7 City Not Required to Advance Funds Upon receipt of
the City's authorization for billing and construction, the Company
shall extend its Facilities to provide Gas to the City for
municipal uses within the City limits or for any major municipal
facility outside the City limits, and within the Company
certificated service area, without requiring the City to advance
funds prior to construction.
§ 4.8 Technolocrical Improvements The Company shall
generally introduce and install, as soon as practicable, Gas
technological advances in its equipment and service and energy
conservation and efficiency advances in its equipment within the
City when such advances, based on reasonable industry standards,
are technically and economically feasible and are safe and
beneficial to the City and its Residents. The Company shall be
authorized to seek recovery for the costs of any such equipment and
service pursuant to tariffs on file with the PUC. Upon request by
the City the Company shall review and promptly report advances
which have occurred in the gas industry that have been incorporated
into the Company's operations in the City in the previous year or
will be so incorporated in the following 12 months.
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ARTICLE 5.
COMPLIANCE
§ 5.1 City Regulation The City expressly reserves, and the
Company expressly recognizes, the City's right and duty to adopt,
from time to time, in addition to the provisions herein contained,
such charter provisions, ordinances, rules and regulations as may
by the City be deemed necessary in the exercise of its police power
for the protection of the health, safety and welfare of its
citizens.
§ 5.2 Compliance with City Requirements The Company will
comply with all City requirements regarding curb and pavement cuts,
excavating, digging and related construction activities, as well as
with reasonable direction regarding the placement of Facilities.
Upon request by the City, the Company shall submit copies of
reports of annual and long -term planning for capital improvement
projects with descriptions of required street cuts, excavation,
digging and. related construction activities. Upon request of
either party, representatives of the City and the Company will meet
annually to discuss annual and long -term planning for capital
improvement projects contemplated by each within the City. The
Company shall use its best efforts to coordinate its capital
improvement projects with the City's planning and improvement plans
for Streets and Other Public Places and capital improvement
projects. Upon request of either party, the Company and the City
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shall exchange copies of their reports regarding annual and long-
term planning for capital improvement projects with descriptions of
construction activities including, to the extent known, the timing
and method of construction. Except for emergencies, the City may
require that all installations be coordinated with the City's
municipal planning and improvement programs for Streets and Other
Public Places. The City Manager or his or her designee shall be
the City's agent for inspection and for compliance with City
ordinances and regulations on any such projects.
§ 5.3 Supervision The City Manager or his or her designee
(official City representative), is hereby designated the official
of the City having full power and authority to take appropriate
action for and on behalf of the City and its Residents to enforce
the provisions of this franchise and to investigate any alleged
violations or failures of the Company to comply with the provisions
hereof or to adequately and fully discharge its responsibilities
and obligations hereunder. The failure or omission of said
official City representative to so act shall not constitute any
waiver or estoppel nor limit independent action by other City
officials.
In order to facilitate such duties of the said official
City representative, the Company agrees:
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(1) Upon request, to submit to said official City
representative copies of filings which the Company makes with the
Public Utilities Commission, including, but not limited to, its
annual report, advice letters and applications, together with
supporting testimony and exhibits. In addition, irrespective of
whether the City intervenes in a proceeding before the Public
Utilities Commission, the Company, upon the City's reasonable
notice, not to exceed three business days, will provide the City
access to all non - confidential documents provided other parties in
connection with such proceeding.
(2) Upon request, to meet with said official City
representative for the purpose of reviewing, implementing, and /or
modifying procedures and methods mutually beneficial for the
efficient processing of bills rendered by the Company to the City.
(3) Upon request, to meet with said official City
representative to share information useful in coordinated
management,.operation and repair of the Facilities of the Company
and the operations and property of the City.
§ 5.4 City Review of Construction and Design Except in
emergency circumstances and unless otherwise requested by the
City, prior to construction of any significant Gas Facilities above
ground or, of a building or similar structure within the City, the
Company shall furnish to the City a description of the type and
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proposed location, including, upon request, the plans for such
Facilities. In addition, upon request, the Company shall assess
and report on the impact of such proposed construction on the City
environment. Such plans and reports may be reviewed by the City to
ensure, inter alia (1) that all applicable laws including building
and zoning codes and air and water quality and hazardous waste
regulations are complied with, (2) that aesthetic and good planning
principles have been given due consideration and (3) that adverse
impact on the environment has been minimized. The Company shall
comply with all regulatory requirements of the City and shall
incorporate all other reasonable changes requested by the City.
§ 5.5 Compliance with PUC Regulations The Company shall
assure that the Gas it distributes meets with the- minimum standards
promulgated by the Colorado Public Utilities Commission. The
Company shall make available to and, upon request, furnish the City
copies of P.U.C. rules regulating the service of gas utilities, and
tariff provisions of the Company setting minimum standards for gas
service, 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. In addition, the Company shall
make available to and, upon request, furnish the City copies of all
tariffs, rules, regulations and policies filed with or approved by
the Public Utilities Commission related to service by the Company
to the City and its Residents.
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§ 5.6 Compliance With Air and Water Pollution Laws The
Company shall use its best efforts to take measures which will
result in its Facilities meeting the standards required by
applicable City, County, Federal and State air and water quality
laws and laws regulating transportation, use and handling of
hazardous materials. Upon the City's request, the Company will
provide the City with a status report of such measures. Nothing
herein shall constitute a waiver of the Company's right to
challenge the validity of any such laws or regulations.
§ 5.7 Inspection The City shall have the right to inspect
at all reasonable times any portion of the Company's system used to
serve the City and its Residents. The City shall also have access
to Company records for the purpose of determining Company
compliance with this franchise. The Company agrees to cooperate
with the City in conducting the inspection and to correct any
discrepancies affecting the City's interest in a prompt and
efficient manner.
§ 5.8 Bills On request by the City, the Company shall
provide a list of City account numbers and items metered.
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ARTICLE 6.
REPORTS TO CITY
§ 6.1 Reports on Company Operations The Company shall
submit reasonable financial and other necessary reports containing
or based on information reasonably available from the Company's
books and records as the City may from time to time request with
respect to the services provided and the operations of the Company
under this franchise, provided that such information can be
provided at a reasonable cost. Such reports may be changed from to
time as may be mutually agreeable to the City and the Company.
Nothing herein shall constitute a waiver by the Company to assert
that such information is confidential. Upon request by the City,
the Company shall provide the following reports:
(1) A detailed statement of the annual Gas Revenues
received from Residents of the City and the calculation of the
franchise fee due and owing thereon; and
(2) A list of all real property and leasehold
interests in real property owned by the Company within the City,
excepting public and other easements. Upon request by the City,
such list shall include the legal description and land area of each
listed property and shall be accompanied by a map showing the
location of each listed property and shall include real property
and leasehold interests in real property owned by the Company
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within the Pueblo Comprehensive Planning Area, as identified by the
City; and
(3) Short term (less than three (3) years) and long-
range (over three (3) years) plans for all capital improvements,
construction and excavation within the City or affecting service to
the City and its Residents; and
(4) A five (5) year forecast of franchise fees to be
paid to the City.
ARTICLE 7.
ANNEXATION TO THE CITY
§ 7.1 Annexation to the City When a property owned by the
Company involved in the performance of services under this
franchise becomes eligible for voluntary annexation to the City and
is not simultaneously eligible for voluntary annexation to another
municipal corporation, the Company shall petition to annex the same
upon request made by the City, provided that no condition of such
annexation 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
property owners seeking annexation of their land to the City;
provided, however, the Company shall be exempted from a public
donation of land, money or water rights arising from such mandatory
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annexation under this section to the extent that the portion of
land requested is committed, dedicated and being utilized by
facilities involved in generating, transmitting or distributing gas
services under this ordinance, and provided further that said
exemption from public donation shall not extend to any unimproved
portion of land or portion of land not so committed, dedicated and
currently used.
ARTICLE 8
INDEMNIFICATION OF THE CITY
§ 8.1 City Held Harmless The Company shall indemnify,
defend and save the City harmless from and against all lawsuits,
liability, damage, claims, demands, judgments and losses whatsoever
in nature and reimburse the City for all its reasonable expenses,
arising out of the operations of the Company within the City
pursuant to this franchise (including the Company's street cutting
operations) and the securing of and the exercise by the, Company of
the franchise rights granted in this ordinance, including without
limitation, .,any third -party claim, administrative hearing or
litigation. The City will provide prompt written notice to the
Company of the pendency of any claim or action against the City
arising out of the exercise by the Company of its franchise rights.
The Company will be permitted, at its own expense, to appear and
defend or to assist in defense of such claim. None of the City
expenses reimbursed by the Company under this article shall be
surcharged solely to customers within the City. Nothing contained
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herein shall obligate the Company to save the City harmless and
indemnify the City to the extent any lawsuits, liability, damage,
claims, demands, judgments and losses shall have been found, by
final decision of a court of competent jurisdiction in an action
where the City is a party, to have arisen out of or in connection
with any negligent or intentional tortious act or failure to act of
the City or of its officers, agents or employees.
§ 8.2 Payment of Expenses Incurred by City in Relation to
Ordinance The Company shall pay in advance or, at the City's
option, reimburse the City for expenses of the election as well as
those incurred in publication of notices and ordinances and for
photocopying of documents arising out of the negotiations or
election process for obtaining the franchise.
§ 8.3 Financial Responsibility At the time of the execution
of this ordinance, and from time to time at the City's request, but
not more frequently than annually, the Company shall submit to the
City Attorney, as a confidential document, proof of its ability to
meet its obligations under this ordinance, including without
limitation its ability to indemnify the City as required by this
article. This proof may take the form of insurance coverage,
adequate funding of self - insurance or the provision of a bond. The
Company shall supply the City with a list of its insurance
companies with the types of coverage but not levels of insurance.
Said list shall be kept current by annual revisions as of January 1
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of each year during the term of the franchise. The City may
require, from time to time, and the Company agrees to provide
additional reasonable funding of the Company's indemnification
obligations as a self - insured, if the Company is acting as a self -
insurer.
ARTICLE 9.
TRANSFER OF FRANCHISE
§ 9.1 Consent of City RecLuired The Company shall not
transfer or assign any rights under this franchise to a third
party, excepting only corporate reorganizations by the Company not
including a third party unless the City shall approve by ordinance
such transfer or assignment. Approval of the transfer or
assignment shall not be unreasonably withheld.
§ 9.2 Transfer Fee In order that the City may share in the
value this franchise adds to the Company's operation, any such
transfer or assignment of rights under this franchise requiring the
approval of the City, excepting any involuntary transfers or
assignments ordered by a authority of competent jurisdiction after
hearing in which the Company in good faith contests the transfer or
assignment, shall be subject to the condition that the transferee
shall promptly pay to the City of Pueblo a pro rata share of one
million dollars, which pro rata amount of one million dollars shall
be calculated by multiplying one million dollars times a fraction
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of which the then population of the City of Pueblo is the numerator
and the then population of the City and County of Denver is the
denominator. Such transfer fee shall not be recovered from the
City -or from the City Residents or property owners through gas
rates of customers in the City of Pueblo or by surcharge by the
transferee or the Company. The mere fact that approval by an
authority is required for any transfer or assignment shall not
constitute or be considered to constitute a "transfer or assignment
ordered by an authority" as those terms are used herein.
ARTICLE 10.
PURCHASE OR CONDEMNATION
§ 10.1 City's Right to Purchase or Condemn The right of the
City to construct, purchase or condemn any public utility works or
ways, and the rights of the Company in connection therewith, as
provided by the Colorado Constitution and statutes, are hereby
expressly reserved. In the event of condemnation by the City, no
value shall-be given to the franchise rights granted herein.
§ 10.2 Continued Cooperation by Company In the event the
City exercises any right of condemnation it may have, the Company
agrees that, to the extent permitted by law, it will continue to
maintain its facilities and supply any service it supplies under
this franchise, at the City's request, until nine months after
final order is entered in a condemnation proceeding or the
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effective date of a purchase agreement in lieu of condemnation;
provided, however, said obligation shall not exceed a twenty -four
(24) month period after the termination of the franchise, or until
alternative arrangements have been made to supply Gas to the City
and its Residents, whichever date shall earlier occur. The City
shall not pay for any services no longer required.
The Company shall cooperate with the City by making
available then existing pertinent Company records which are not
privileged to enable the City to evaluate the feasibility of
acquisition by the City of Company facilities. The Company shall
not be obligated to conduct studies or accrue data without
reimbursement by the City, but will make such studies if reimbursed
its costs for the same. 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, the Company shall
supply gas for use by the City in the City owned system.
§ 10.3. of First Purchase In the event the Company at
any time during the term of this franchise proposes to sell or
dispose of any of its real property located within the City, it
shall grant to the City the right of first purchase of same. The
Company shall obtain a qualified appraisal on any such property and
the City shall have sixty (60) days from receipt of such appraisal
in which to exercise the right of first purchase by giving written
notice to the Company. Should the City not provide the required
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written notice, the Company may proceed to negotiate with others
for the sale of such property provided that the Company may not
sell such property for an amount less than ninety -five percent
(95%) of the appraised value without first providing the City an
opportunity to purchase such property at such lesser price, in
which event the City must notify the Company in writing within
thirty (30) days from receipt of notice of such proposed sale if it
wishes to purchase such property. It is understood that nothing in
this paragraph shall preclude the Company from transferring real
property to a subsidiary or affiliate without first according the
City the rights referred to above, provided that if the transferee
proposes to sell or dispose of such property within one year, it
shall not do so without first affording the City the rights
referred to above.
ARTICLE 11.
REMOVAL OF COMPANY FACILITIES AT END OF FRANCHISE
§ 11.1 Limitations on Company Removal If at the time of
termination of the franchise granted under this franchise no
renewal has been negotiated between the City and the Company, the
Company shall not be required nor shall it have a right to remove
its Facilities immediately from the Streets and Other Public
Places. At the City's request and within a reasonable time not to
exceed nine (9) months, the Company shall remove from the Streets
and Other Public Places at the Company's expense all Facilities
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belonging to the Company located above the surface of the ground
which are not acquired by the City at the termination of the
franchise. Further, the Company, at the request of the City, shall
remove at the Company's expense all underground. Facilities which
are not acquired by the City within nine months after the receipt
by the Company of a written notice from the official City
representative that said underground Facilities constitute a
hazardous condition or interfere with a municipal use of the
subsurface of said Streets and Other Public Places. All streets
and other public places shall be restored by the Company to its
former condition after said removal. The Company need not remove
any property from said Streets and Other Public Places which it
shall continue to use and maintain pursuant to contractual
arrangements with the City. Nothing herein contained shall be
construed as requiring the Company to remove any Facilities within
the Streets and Other Public Places which the Company has the right
to operate and maintain independent of the rights granted in this
franchise, if in fact such rights exist. Nothing herein contained
shall be deemed a waiver of the City's rights independent of those
set forth in this Section 11.1, if in fact such rights exist.
ARTICLE 12.
TRANSPORTATION OF GAS
§ 12.1 Transportation of Gas for City Use The City reserves
the right to obtain or produce Gas. Upon request of the City, the
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Company shall transport Gas purchased or produced by the City in
accordance with the Company's tariffs and applicable Commission
rules and regulations. In the event transportation service is no
longer subject to the jurisdiction of the PUC, the Company agrees
to transport Gas purchased or produced by the City for use in City
facilities on terms and conditions comparable to other contracts
entered into contemporaneously by the Company with similarly
situated customers. Charges to the City by the Company for any
service to transport Gas shall not exceed the lowest charge for
similar or identical service provided for transportation of Gas by
the Company to any other similarly situated customer or consumer of
the Company.
§ 12.2 City Fleet Refueling Station and Fleet Conversion The
Company shall, upon request, meet with the City to discuss the use
of compressed Natural Gas in City -owned vehicles and the benefits
of constructing a state -of -the art pressurized fleet refueling
station.
ARTICLE 13.
FORCE MAJEURE AND FAILURE TO PERFORM
§ 13.1 Force Majeure Both the Company and the City
recognize there may be circumstances whereby compliance with the
provisions of this franchise is impossible or is delayed because of
Force Majeure. In those instances, the Company shall use its best
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efforts to comply in a timely manner and to the extent possible.
For the purposes of this section, the term Force Majeure shall mean
acts of God, strikes, lockouts, acts of public enemies, wars,
blockades, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, storms, floods, washouts, civil disturbances,
explosions, inability with reasonable diligence to obtain
materials, and any other causes not within the control of the party
claiming a suspension, which by the exercise of due diligence such
party shall not have been able to avoid or overcome.
§ 13.2 Failure to Perform If the Company fails to perform
any of the terms and conditions of this franchise and such failure
is within the Company's control, the City, acting by and through
its Council, may determine, after notice and hearing, that such
failure is of a material or substantial nature. Upon receiving
notice of such determination, the Company shall have a reasonable
time, not to exceed six (6) months, within which to remedy the
failure to perform, unless the parties otherwise agree in writing.
If during said reasonable time corrective actions have not been
successfully taken, the City, acting by and through its Council,
and in the exercise of its police power shall determine whether any
or all rights and privileges granted the Company under this
franchise shall be forfeited. If the Company fails to pay
franchise fees pursuant to Sections 3.1 and 3.5 above, and if such
failure is not a condition of Force Majeure, the City shall provide
written notice of such failure to the Company. If after receiving
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said written notice from the City the Company fails to make the
required payment within thirty (30) days, the City, acting by and
through its Council, may determine, after hearing, that such
failure constitutes a forfeiture of the rights granted herein.
§ 13.3 Judicial Review Any such declaration of forfeiture
shall be subject to judicial review as provided by law.
§ 13.4 Other Legal Remedies Nothing herein contained shall
limit or restrict any legal rights that the City or the Company may
possess arising from any alleged violation of this franchise.
§ 13.5 Continued Obligations Upon forfeiture, the Company
shall continue to provide service to the City and its Residents in
accordance with the terms hereof until the City makes alternative
arrangements for such service. If the Company fails to provide
continued service, it shall be liable for damages to the City. The
City shall have standing to enforce all provisions of this section.
§ 13.6 No Waiver Neither the City nor the Company shall be
excused from complying with any of the terms and conditions of this
franchise by any failure of the other, or any of its officers,
employees or agents, upon any one or more occasions to insist upon
or to seek compliance with any such terms and conditions.
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ARTICLE 14.
AMENDMENTS
§ 14.1 Amendments 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
(3 0 ) days' written notice to the other of the proposed amendment (s)
desired and both parties thereafter, through their designated
representatives, will negotiate within a reasonable time in good
faith in an effort to agree on mutually satisfactory amendment(s).
The word "amendment" as used in this section does not include a
change authorized in Section 3.3.
ARTICLE 15.
CHANGING CONDITIONS
§ 15.1 Changing Conditions The Company and the City
recognize that many aspects of the gas utility business are
currently the subject of discussion, examination and inquiry by
different segments of the industry and affected regulatory
authorities and that these activities may ultimately result in
fundamental changes in the way the Company conducts its business
and meets its service obligations. In recognition of the present
state of uncertainty respecting these matters, the Company and City
each agree, on request of the other during the term of this
franchise, to meet with the other and discuss in good faith whether
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it would be appropriate, in view of developments of the kind
referred to above during the term of this franchise, to amend this
franchise or enter into separate, mutually satisfactory
arrangements to effect a proper accommodation of any such
developments.
ARTICLE 16.
MISCELLANEOUS
§ 16.1 Governmental Immunity Nothing contained in this
franchise shall be construed to change the rights of the parties,
if any, as set forth in C.R.S. § 24 -10 -101, et sect. as the same
may be amended from time to time.
§ 16.2 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 Public Service
Company, its successors and assigns.
§ 16.3 Third Parties Nothing contained in this franchise
shall be construed to provide rights to third parties, other than
the successors and assigns of the Company.
§ 16.4 Representatives Both parties shall designate from
time to time in writing representatives for the Company and the
City who will be the persons to whom notices and reports provided
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pursuant to the terms of this franchise shall be sent, including
those regarding any action to be taken under this ordinance.
Notice shall be in writing and forwarded by certified mail or hand
delivery to the persons and addresses as hereinafter stated, unless
the persons and addresses are changed at the written request of
either party, delivered in person or by certified mail. Until any
such change shall hereafter be made, notices shall be sent to the
City Manager and to the Company's Pueblo Manager of Operations.
Currently the addresses are as follows:
For the City of Pueblo:
City Manager
City of Pueblo
1 City Hall Place
Pueblo, Colorado 81003
For the Company:
Manager of Operations
Pueblo Division
615 West Street
Pueblo, Colorado 81003
§ 16.5 Severabilitv Should any one or more provisions of
this franchise 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.
§ 16.6 Entire Agreement This franchise constitutes the
entire agreement of the parties. There have been no
representations made other than those contained in this franchise.
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§ 16.7 Reimbursement of City Costs If the City institutes
litigation against the Company for a breach of this franchise or
for any interpretation of the franchise, and the City is the
prevailing party the Company shall reimburse the City for all
costs related thereto, including reasonable attorneys fees.
ARTICLE 17.
APPROVAL
§ 17.1 Voter Approval This grant of franchise shall not
become effective unless approved by a majority vote of the
registered electors of the City.
§ 17.2 Company Approval The Company shall file with the City
Clerk its written acceptance of this franchise and of all of its
terms and provisions within ten (10) days after the adoption of the
ordinance referring this franchise to a vote of the people. The
Company shall file with the City Clerk its written ratification of
this franchise and of all of its terms and provisions within ten
(10) days after the approval of this franchise by the registered
electors of the City. The acceptance and ratification shall be in
a form and content approved by the City Attorney. If the Company
shall fail to timely file its written ratification as herein
provided, this franchise shall be subject to forfeiture as provided
in Section 13.2 above, and, if forfeited, shall become null and
void.
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CITY OF PUEBLO
SPECIAL MUNICIPAL ELECTION
July 9, 1996
PREONCT
NUMBER
PUBLIC SERVICE COMPANY
OF COLORADO
NON EXCLUSIVE
FRANCHISE AGREEMENT
ORD. NO. 6085
PRECWCT
ht&VER
PUBLIC SERVICE COMPANY
OF COLORADO
NON EXCLUSIVE
FRANCHISE AGREEMENT
ORD. NO. 6085
FOR
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ABSENTEE PRECINCT
S S
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GRAND TOTALS
THE UNDERSIGNED OFFICIALS OF THE CITY OF PUEBLO, COLORADO, CERTIFY THAT THE ABOVE IS A TRUE AND CORRECT
CANVASS AND ABSTRACT OF THE VOTE CAST AT THE SPECIAL MUNICIPAL ELECTION HELD ON JULY 9, 1996
ATTEST.
ELECTION BOARD -�� ELECTION BOARD EL TION BOARD CIT ,LERK
MEMBER MEMBER MEMBER