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HomeMy WebLinkAbout06098ORDINANCE NO. 6098 AN ORDINANCE CALLING A SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, THE 9th DAY OF JULY, 1996 IN THE CITY OF PUEBLO, COLORADO; SUBMITTING TO THE ELECTORS ENTITLED TO VOTE THEREON AT SAID SPECIAL MUNICIPAL ELECTION ORDINANCE NO. 6085 GRANTING A NON - EXCLUSIVE FRANCHISE 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 THEREIN DEFINED AS MAY BE NECESSARY; AND FIXING THE TERMS AND CONDITIONS THEREOF WHEREAS, Public Service Company of Colorado has applied under Article 16 of the Charter of Pueblo for a gas franchise; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 A special municipal election is hereby called to be held in the various precincts and at the polling places within the City of Pueblo, Colorado, on Tuesday, the 9th day of July, 1996 between the hours of 7:00 a.m. to 7:00 p.m. SECTION 2 At said special municipal election there shall be submitted to the electors of the City of Pueblo entitled to vote thereon the question of adopting Ordinance No. 6085, a copy of which is attached hereto and incorporated herein by reference, granting a gas franchise to Public Service Company of Colorado, its successors and assigns. The ballot title therefor shall be in substantially the following form: FRANCHISE QUESTION SUBMITTED SHALL THE CITY OF PUEBLO GRANT A NON - EXCLUSIVE FRANCHISE 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 INDUSTRIES IN THE CITY AND THE RIGHT TO MAKE REASONABLE USE OF ALL PUBLIC STREETS AND OTHER PUBLIC PLACES AND PUBLIC EASEMENTS AS MAYBE NECESSARY UPON THE TERMS AND CONDITIONS SET FORTH IN ORDINANCE NO. 6085 OF THE CITY OF PUEBLO? FOR THE FRANCHISE ORDINANCE AGAINST THE FRANCHISE ORDINANCE SECTION 3 The City Clerk of the City of Pueblo shall give public notice of the special municipal election and election on Ordinance No. 6085 as required by law. The City Clerk shall cause the full text of Ordinance No. 6085 to be published once in the Pueblo Chieftain at least ten (10) days prior to the special municipal election. SECTION 4 The City Council does hereby adopt the optional registration plan provided for in Section 17 -9 of the Charter of the City of Pueblo and hereby determines and declares that voting machines are not available and all votes at the special municipal election shall be taken, recorded and tabulated by use of an electronic voting system. SECTION 5 Public Service Company of Colorado shall at least twenty (20) days prior to the special municipal election deposit with the Director of Finance all expenses of the special municipal -2- election as required by Section 16 -2 of the Charter of the City. SECTION 6 The special municipal election shall be conducted in accordance with the applicable provisions of the Charter of the City and the Pueblo Election Code, provided, that all ordinances, including the Pueblo Election Code, resolutions, rules, regulations or bylaws, or parts thereof, inconsistent with this Ordinance or any provision hereof are superseded and suspended during the time the special municipal election called hereby is held and conducted. SECTION 7 The officers of the City are hereby authorized and directed to take all action necessary and appropriate to effectuate the provisions of this Ordinance. SECTION 8 If any provision of this Ordinance is held to be invalid or unenforceable, such holding shall not affect any of the remaining provisions of this Ordinance. SECTION 9 This Ordinance shall take effect immediately upon final passage. ATTEST: INTRODUCED: June 10, 1996 By 4armit -1 CnraPntinn Councilperson G ' ' : GAIM &-' elz City Clerkb Pres�ent of the Cit Council M11 ACCEPTANCE BY PUBLIC SERVICE COMPANY OF COLORADO OF A GAS FRANCHISE GRANTED BY ORDINANCE NO. 6085 TO BE SUBMITTED TO A VOTE OF THE PEOPLE OF PUEBLO, COLORADO WHEREAS, Public Service Company of Colorado and the City of Pueblo, have negotiated the terms and conditions of a new gas franchise between said Company and the City of Pueblo, which franchise is as set forth in Ordinance No. 6085, entitled: 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. NOW, THEREFORE, in consideration of the premises and in pursuance of the provisions of said Ordinance No. 6085 of Pueblo, Public Service Company of Colorado does hereby accept the franchise and all of its terms and conditions contained in said Ordinance No. 6085. IN WITNESS WHEREOF, Public Service Company of Colorado has caused its corporate name to be hereunto subscribed by its Vice President, and its Corporate Seal to be hereunto affixed, attested by its Assistant Secretary, as of this _2 day of June, 1996. PUBLIC,SE910E COMPANY OF C LORADO ATTEST: By c ry- C_ �j Vice Pre dent Assistant Secretary r , TABLE OF CONTENTS Pacre 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -i- Pacre 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 Maieure . . . . . . . . . . . . . . . . . . . 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -11- 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. DN 61750 16672 DN68302.1 06/03/96 2:04pm 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. DN 61750 16672 DN68302.1 06/03/96 2:04pm -2- 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. DN 61750 16672 DN68302.1 06/03/96 2:04pm -3- 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -4- 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. DN 61750 16672 DN68302.1 06/03/96 2:04pm - S - § 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 (3%) 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -6- 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 ( 3 0 ) 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. DN 61750 16672 DN68302.1 06/03/96 2:04pm -7- § 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. DN 61750 16672 DN68302.1 06/03/96 2:04pm - 8 - § 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -9- 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm _10- 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -12- 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. DN 61750 16672 DN68302.1 06/03/96 2:04pm -13- § 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 Technological 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. DN 61750 16672 DN69302.1 06/03/96 2:04pm -14- 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm 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: DN 61750 16672 DN68302.1 06/03/96 2:04pm -16- ..rr (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 DN 61750 16672 DN68302,1 06/03/96 2:04pm -17- 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. DN 61750 16672 DN68302.1 06/03/96 2:04pm § 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. DN 61750 16672 DN68302.1 06/03/96 2:04pm 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -20- 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -21- 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -22- 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -23- 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 Required 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -24- 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 Citv'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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -25- 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 Right 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -26- 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 (950) 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -27- 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 DN 61750 16672 DN68302.2 6/3/96 5:10pm -28- 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 DN 61750 16672 DN68302.2 6/3/96 5:07pm -29- 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -30- 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. DN 61750 16672 DN68302.1 06/03/96 2:04pm -31- 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -32- r 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 sea. 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 DN 61750 16672 DN68302.1 06/03/96 2:04pm -33- 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 Severability 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. DN 61750 16672 DN68302.2 6/3/96 5:08pm -34- r § 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. DN 61750 16672 DN68302.1 06/03/96 2:04pm -35-