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HomeMy WebLinkAbout1988 Ordinance No. 014ORDINANCE NO •.. JLb SERIES OF 198P BY AUTHORITY COUNCIL BIIJ.. N0.14 INTRODUCED BY COUNCIL MEMBER KOZACEK AN ORDINANCE RELATING 'I'O THE OPERATION OF A GAS AND ELEC'I'RIC SYSTEM WITHIN THE CITY OF ENGLEWOOD AND SUBMITI'ING TO THE QUALIFIED ELE<.'TORS OF THE CITY OF ENGLEWOOD THE QUESTION OF WHETHER THE CITY OF ENGLEWOOD SHOULD GRANT A FRANCHISE TO PUBLIC SERVICE COMPANY OF COLORADO, ITS SUCCESSORS, TRANSF'EREES, AND ASSIGNS, TO EREC'r, CONSTRUCT I OPERATE AND MAINTAIN IN, UPON, ALONG, ACROSS, ABOVE, OVER AND UNDF,R THE STREETS, ROADS, HIGHWAYS, AVENUES, ALLEYS, VIADUCTS, BRIDGES, SIDEWALKS I PUBLIC UTILI'rIES AND aI'HER PUBLIC EASEMENTS, PUBLIC WAYS AND arI-IER PUBLIC PLACES, DE."'l)ICATIONS AND RESERVATIONS IN THE CITY OF ENGLEWOOD, BOrH NOW IN EXISTENCE AND AS MAY BE CREATED OR ESTABLISHED DURING THE TERM OF THIS FRANCHISE, ANY FACILITIES REQUIRED FOR THE TRANS-· MISSION, DISTRIBUTION, AND SALE OF GAS AND ELECTRICITY WITHIN THE CITY OF ENGLEWOOD; FIXING THE 1rERMS AND CONDITIONS THEREOF'; PROVIDING FOR THE CALLING AND HOLDING OF A SPECIAL ELECTION UPON SAID QUES'l'ION, THE DETF...RMINING OF THE RESUL'rS THEREOF, AND FOR THE EXECUTION AND DELIVERY OF SAID FRANCHISE ACCORDING TO I'l'S PROPOSED TERMS, IF THE RESULT OF SUCH VOTE OF THE QUALIFIED ELECTORS AT SUCH Er,EC'.rION SHALL BE IN THE AE'FIRMATIVE FOR THE C::iRANTING OF SAID FRANCHISE. WHEREAS, the provision of gas and electric services is necessary for the health, safety, and welfare of the citizens of :Englewood; NOW, THEREFORE, BE IT ORDAINED BY THE CI'I'Y COUNCIL OF' THE CITY OF ENGLEWOOD I COLORADO I THA'l': Section 1. At the special municipal election to be held in the City of Englewood 'oo.ftine 21, 1988, there shall be and hereby is submitted to a vote of the qualified electors of the City of Englewood the question of granting Public Service Company of Colorado the franchise hereinafter set forth. Section 2. The voting machines and paper ballots for said election shall 'c'ar"iy the following designation which shall be the submission clause: FOR ~E QUESTIO~ AGAINST SHALL rrHE QUALIFIED Er,EC'r0RS OF THE CITY OF ENGLEWOOD GRANT A FRANCHISE TO PUBLIC SERVICE COMPANY OF COLORADO? Each elector voting at said election desirous of voting for or against said franchise shall indicate his choice by depressing the appropriate counter at the voting machine which indicates the word "For" or "Against" or by the appropriate marking upon paper ballots, where used. Section 3. 'I'he following is the franchise to be voted upon at this special munlclpal election: -1 - Article 1: Article 2: Article 3: Article 4: Article 5: DEFINITIOOS GRANT .. OF .. FRANCHISE 2.1: Grant of Franchise 2.2: Street Lighting 2.3: Tenn of Franchise FRANCHISE .. FEE 3.1: Franchise Fee and Payment Schedule 3.2: Change of Franchise Fee or Consideration 3.3: Franchise Fee Payrnent in Lieu of other Fees 3.4: Contract Obligation SUPPLY, .OE~IOO AND .. DESIGl 4.1: Supply of Gas and Electricity 4.2: Restoration of Service 4.3: Obligations Regarding Company Facilities 4.4 Excavation and Construction 4.5 Relocation of Company Facilities 4.6: Service to New Areas 4.7: City Not Required to Advance Funds 4.8: Technological J.rnproverllt:?nts COI.IPLIM>CE 5 .1: City Regulation 5.2: Compliance with City Requirements 5.3: City Review of Construction and Design 5. 4: Compliance with PUC Regulations 5.5: Compliance with Air and Water Pollution Laws 5.6: Inspection and Audit -2 - I . Article 6: Article 7: Article 8: Article 9: REPORTS.TO CITY 6.1: Reports on Company Operations 6.2: Copies of Tariffs, all PUC Filings CITY .. USE .. OF .. CXMPANY .. FACILITIES 7.1: City Use 7.2: Underground Conduit INDEJtiIFICATIOO .. OF .. 'mE .. CITY 8.1: City Held Harmless 8.2: Notice 8.3: Payment of Expenses UNDERGRCXJND .. O:WS'.I.'ROC!TI<J.iJ .. AND .. OVERHElID .. C'ONFBSICE 9.1: Underground Electrical Distribution Facilities_ 9.2: Overhead Conversion at Expense of Cornpany 9.3: Termination 9 .4: Review 9.5: Cooperation with other Utilities 9.6: Emergencies Article 10 : 'l'RANSFER .. OF .. FRNSKE:SE 10 .1: Consent of City Required 10.2: Transfer Fee Article 11: PURCHASE .AND. ~OJ 11.1: City's Right to Purchase or Condemn. 11.2: Negotiations and Condemnation 11.3: Continued Cooperation By Company 11.4: Right of First Purchase Article 12: REMOVAL. at• o:ffil?AblY.FACil.I'TIES .. AT .. ENl .. OF-E'RmESE 12.1: Limitations on Company Removal -3 - Article 13: PRCDUCrIOl OIL 'l'RANSPO.lW\TICJSI .. OF .. GAS .. OR .. ELECTRICITY 13.l: Transportation of Gas 13.2: Small Power Production and Co-Generation Article 14 : FORFF..I'l'URE 14.1: Forfeiture 14.2: Continued Obligations Article 15: ~ 15 .1: Amendments Article 16: MISCELIANEXXJS 16.1: Successors and Assigns 16 . 2: Third Parties 16.3: Representatives 16.4: Other Legal Remedies 16.5: Severability Article 17: APPROVAL 17.1: Voter Approval 17.2: Company Approval -4 - I ARI'ICLE 1 DEFINITICH; 1.0 DEFINITIONS: In this Chapter, unless the context otherwise requires, the following words and phrases have the rreanings indicated. The word 11 shall 11 is mandatory and "may" is permissive. 1.1 CITY -means the municipal corporation designated as the City of Englewood, Arapahoe County, Colorado, and includes the territory as currently is or may in the future be included within the boundaries of the City of Englewood. 1.2 CITY PROJECT -means any project in which the City has a financial or ownership interest. 1.3 COMPANY -means Public Service Company of Colorado. 1.4 DISTRIBUTION FACILITIES -refers to and is only that portion of the Company's electric system which delivers electric energy from the substation breakers to the point-of-delivery of the customer, including all devices connected to that system as well as 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 -means facilities reasonably necessary or actually used to provide gas and electricity into, within and through the City and includes plants, works, systems, substations, transmissions and distribution structures, lines, equiprrent, pipes, mains, conduit, transformers, underground lines, gas compressors, meters, wires, cables and poles. 1.6 GAS -means such gaseous fuels as natural gas, artificial gas, synthetic gas, liquefied natural gas, liquefied petroleum gas, manufactured gas or any mixture thereof. 1.7 PUBLIC PLACES -means and includes any street, alley, viaduct, bridge, road, lane, highway, dedicated or public easement or public right-of-way. 1.8 RESIDENTS -means and includes all persons, businesses, industries, governments or governmental agencies, and other entities located, in whole or in part, within the City. -5 - 1.9 REVENUES -means money which the Company receives from the sale and transportation of gas within the City and the sale of electricity within the city and for the use of its facilities by others in the City, less adjustments for refunds, uncollectible accounts, corrections, and other regulatory adjustments. 1.10 WORK -means and includes all work done by the Conpany in the City, including but not limited to, excavation, installation, construction, repair, maintenance, renovation, removal, and replacement of facilities. ARITCLE 2 GRANT OF FRANCHISE 2.1 GRANT OF FRANCHISE. The City hereby grants the Company, subject to the terms of this Franchise, a nonexclusive right and duty to furnish, sell and distribute gas and electricity to the City and to all residents of the City, and to install, maintain, and operate facilities reasonably necessary for service to the City and areas outside the City, and a nonexclusive right to make reasonable use of public places as may be necessary to carry out the terms of this franchise. 2.2 STREET LIGH'rING. This Franchise includes the nonexclusive right and duty to provide street lighting service. Wherever reference is made to the sale or supply of electricity or to the provision of electric service in this Franchise, these references shall be deemed to include the provision of street lighting service. Wherever reference is made to Company facilities, equipment, system or plant in this Franchise, this reference shall be deemed to include Company street lighting facilities, equipment, system and plant. 2.3 TERM OF FRANCHISE. This Franchise shall take effect on July 1, 1988. The term of this Franchise shall be for twenty-five (25) years, beginning with said effective date of this Franchise and expiring on June 30, 2113. ARTICLE 3 F1.WCH1:SE FEE 3.1 FRANCHISE FEE AND PAYMENT SCHEDULE. A. Within thirty days following the close of each month, the Company shall pay to the City three percent (3%) of its revenues received from the sale and transportation of gas within the City and from the sale of electricity within the City for that month. In addition, within ninety days following the close of each year, the Company shall pay the City the three percent (3%) of its revenues received from the use of its facilities by others -6 - I ' 'J within the City for that year, so long as said three percent (3%) of said revenues received by the Company from such use is collectively $500.00 per , . M year or greater. These fees do not apply to and shall not be collected on bills paid by the City. The City's Director of Finance, or other designated person shall be provided access upon fifteen (15) days' notice or less, if reasonable, to any and all relevant financial books of the Company for the purpose of auditing or checking to ascertain that the Franchise Fee has been correctly computed and paid. B. If an error by the Company results in an overpayment of the Franchise Fee in excess of $5,000, credit for the overpayment shall be spread over the same period the error was undiscovered. If the overpayment is $5,000 or less, credit shall be taken against the next payment. Nothing herein shall be construed to waive any applicable statute of limitations. 3.2 CHANGE OF FRANCHISE FEE OR CONSIDERATION. A. Once each year the City Council may, by ordinance, change the consideration paid to the City under this Franchise to that paid by the Company under any municipal franchise in Colorado, after thirty (30) days' notice to the Company. B. The Company shall report to the City within sixty (60) days the execution or change of any franchise under which a municipality receives greater consideration than is provided herein. For purposes of this section, consideration means the Franchise Fee established in Section 3.1, the undergrounding program established in Section 9.2, and any other provision of significant financial benefit to the City. 3. 3 FRANCHISE .FEE PAYMENT IN LIEU OF' OTHER FEES. The franchise fee is the only monetary payment to the City for the rights granted in this Franchise. The Company is not exempt from any property tax, from any sales or use tax, from any other tax not related to the Franchise, from head taxes, from other fees or taxes assessed generally upon businesses, or from fees and charges that are uniform and generally applicable to other contractors performing similar work. 3.4 CONTRACT OBLIGATION. If the Franchise Fee specified in this article is declared illegal, unconstitutional or void for any reason by any court or proper authority, the Company is contractually bound to pay the City the amount which would have been paid as a franchise fee at the same time and in the same manner as provided for in Section 3.1 of this Agreement. ARI'ICLE 4 SUPPLY, COOSTR~Ol AND DESIGl 4 .1 SUPPLY OF GAS AND ELECTRICITY. The Company shall provide an adequate supply of gas and electricity to its customers at the lowest reasonable cost consistent with long-term reliable supplies. If the supply of gas or electricity to its customers shall be interrupted, the Company shall restore such supply within the shortest practicable time. -7 - 4.2 RESTORATION OF SERVICE. In the event that the Company's electric or gas system, or any part thereof, is partially or wholly destroyed or incapacitated, the Company shall restore its system to service within the shortest practicable time. 4.3 OBLIGATIONS REGARDING Ca.1PANY FACILITIES. A. Work. All work by the Company shall be done: 1. in a good workmanlike manner, and 2. in a timely and expeditious manner, and 3. in a manner which minimizes inconvenience to the public and individuals, and 4. in a cost-effective manner, which may include the use of qualified private contractors. B. Location of Facilities. Company facilities shall not interfere with water facilities7 sewer facilities or other public use of public places. Company facilities shall be installed so as to minimize interference with other property and improvements. C. Repair of Darna~e. The Company shall promptly repair all damage caused by Company activities or facilities. If such damage poses a threat to health, safety or welfare of the public or individuals, the City may cause repairs to be made at the Company's expense unless the Company makes such repairs promptly upon the City's request. D. Inspecti~. All work is subject to inspection by the City Manager or his designee. The Company shall promptly perfonn reasonable remedial action required by the City pursuant to said inspection. E. Quality. The Company's facilities will be of sufficient quality, durability, and redundancy to provide adequate and efficient gas and electric service to the City and its residents. The Company shall keep its facilities in good working order. 4 .4 F.XCAVATION AND CONSTRUCTION. All public and private property I whose use conforms to restrictions in public easements, disturbed by Company excavation or construction activities shall be restored by the Company at its expense to substantially its former condition. The City shall reserve the right to determine compliance. After reasonable notice to the Company and Company's failure to restore same, the City shall take remedial steps as necessary. In the event of such remedial work by the City, the Company shall be fully obligated to reimburse the City its costs therefor. 4.5 RELOCi\TION OF COMPANY FACILITIES. A. Any relocation of the Company's facilities in any public place required, caused or occasioned by any City project for public use shall be at the cost of the Company. Relocation shall be completed within a reasonable time from the date when the City mal(es its request, such time to be established by the Company as soon as possible after the City's request. The -8 - I Company shall be granted an extension of time of completion equivalent to any delay caused by conditions not under its control, provided that the Company proceeds with due diligence at all times. B. Relocated underground facilities shall be underground. Relocated aboveground facilities shall be aboveground unless the City either agrees to pay the additional cost of moving them underground or requests that such additional cost be paid out of available funds under Section 9.2. C. Nothing contained in this section shall impose any obligation upon the City to pay for relocation of any Company facilities. 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 on file with the Public Utilities Cormtlssion, as same may be amended fran time to time. Service to the expanded area shall be in accordance with the tenns of this Franchise Agreement, including payment of Franchise Fees. 4.7 CITY NOT REQUIRED TO ADVANCE PUNDS. Upon receipt of the City's authorization for billing and construction, the Campany shall extend its facilities to provide gas and electric service for municipal uses within or outside the City. The City shall not be required to advance funds prior to construction. 4.8 TECHNOLOGICAL IMPROVEMENTS. The Company shall use its best efforts to introduce and install, as soon as practicable, technological advances in its equipment and service within the City. Upon request the Company shall promptly review and report advances which it is aware have occurred in the gas and electric utility industry and report whether it believes it appropriate to incorporate such advances into the Company's operations. The Company shall report in advance to the City any plans to include technological advances relating to communications systems such as fiber optics which may utilize electric facilities already in place for the transmission of cornmunication signals, which facilities may be installed by the Company for its use, the use of the City, or for use of others as the Company may license. Upon request the Company will provide a detailed report of the use of such communication system subject to protecting confidential information. The City may use said facilities for its own use without cost, except such additional expense which may be incurred by the Company as a result of the City's use. In no event shall the City's use impair the Company's ability to use its own facilities. Nothing contained herein shall be construed to authorize the Company to engage in telecorrununication activities for sale or lease, nor shall this Franchise Agreement be construed as a franchise for said telecorrmunication activities with.in the City. The Company shall, however I be authorized to engage in telecommunication activities necessary in conjunct.ion with the utility operations performed by the Company within the City. -9 - • I ARTICLE 5 CCM?IJ.ANCE 5.1 CITY REGULATION. The City expressly reserves, and the Company expressly recognizes, the City's right to adopt, fran time to time, in I addition to the provisions herein contained, such charter provisions, ·•· ordinances, rules and regulations as it may deem necessary in the exercise of its police power for the protection of the health, safety and welfare of its residents and their properties. 5.2 COMPLIANCE WITH CITY REQUIREMENTS. The Company will comply with all City charter provisions, ordinances, rules, and regulations and shall obtain all required penni ts • 'rhe Company shall submit , in advance, reports of annual and long-term planning for capital improvement projects with descriptions of planned curb and street cuts and other work. Except in emergencies, all work shall be coordinated with the City's public improvement projects. 5.3 CITY REVIEW OF CONSTRUCTION AND DESIGN. Before construction or installation of any significant aboveground gas facilities, any street lighting fixtures, any electrical transmission lines, any generating plant, any building, any substation, or any similar structure within the City, the Company shall furnish the City with plans for such facilities. In addition, upon request, the Company shall assess and report on the inipact of its 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 are complied with, (2) that aesthetic and good planning principles have been given due consideration, and ( 3) that adverse impact has been minimized. The Company shall incorporate all reasonable changes requested by the City. 5.4 COMPLIANCE WITH PUC REGULATIONS. The gas and electrical energy which the Company distributes shall conform with the standards promulgated by the Colorado Public Utilities Commission. 5. 5 CQ\1PLIANCE WITH AIR AND WA'l'ER POLLUTION LAWS. The Company shall use its best efforts to comply with the standards required by applicable federal and state air and water pollution laws. Upon the City's request, the Company will provide the City with a status report of such measures. 5.6 INSPECTION AND AUDIT. 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 the right to inspect and audit Company records relevant to this Franchise at all reasonable times. The Company agrees to cooperate fully with the City in any inspection or audit and to correct any discrepancies affecting the City's interest in a prompt and efficient manner. -10 - ARTICLE 6 REPORrS TO CITY 6.1 REPORTS ON CCMPANY OPERATIONS. The Company shall submit reasonable reports requested by the City with respect to Company operations. Initially the City requests, and the Company shall provide, the following reports: A. an annual report of the return earned by the Company on its operations and the base used for calculation of such return, B. an annual list of all real property and leasehold interests in real property owned by the Company in the City, C. an annual report listing the City's accounts by type of account (e.g., gas service by location, electric service by location, street lighting, traffic signals) and evaluating billing and rate classification alternatives, D. an annual report of the electric and gas revenues received from residents of the City, showing each adjustment to gross revenue, E. periodically, upon the request of the City, a presentation on electric and gas facilities used to serve the City, and F. an annual report showing the performance standards or goals which the Company uses to monitor the quality of service provided as compared to actual performance. 6.2 COPIES OF' TARIFFS, ALL PUC FILINGS. The Company shall keep on file in a local Company office all tariffs, rules, regulations and policies approved by the Colorado Public Utilities Comnission ("PUC") relating to service by the Company to the City and its residents. Upon request by the City, the Company shall provide the City with copies of such documents and of filings which it makes with the PUC. ARTICLE 7 CITY' USE OF <.XWANY FACILITIES 7.1 CITY USE. The City shall have the right to use all poles and suitable overhead structures constructed by the Company within the City for the purpose of stringing wires. Such use by the City will be without cost. The Company will allow others holding a franchise, except for gas or electric service, from the City to so utilize such poles and suitable overhead structures upon reasonable terms and conditions to be agreed upon by the Company and such holder of a franchise fron1 the City, provided, however, that the Company shall assume no liability nor shall it be put to any additional expense in connection therewith and the use of said poles and structures by the City or others holding a franchise from the City shall be in such a manner as not to constitute a safety hazard or to interfere unnecessarily with the Company's use of same. Nothing herein shall be construed to allow the City's use of Company facilities for the transmission or distribution of electricity. ·-11 - 7.2 UNDERGROUND CONDUIT. If the Company installs new underground conduit or opens a trench or replaces conduit or cable, the Company shall provide adequate advance notice to permit additional installation of similar conduit for the City. If the City wants additional similar conduit installed, it will so notify the Company and provide similar conduit and pullwire, at the City's expense, to the Company which will install that conduit without further expense to the City. ARITCLE 8 INDEMNIFICATI<E' OF 'l'HE CITY 8.1 CITY HELD HARMLESS. The Company shall hold harmless and indemnify the City from and against all liability, damage and claims, and shall reimburse reasonable expenses related thereto, arising out of the operations of the Cornpany and the securing of this Franchise. No expenses reimbursed by the Company under this Section shall be surcharged to customers. In the event of litigation between the parties regarding· this Franchise, if the City prevails, the Company shall pay all costs related thereto, including reasonable attorney's fees. The Company shall not be obligated to hold harmless or indemnify the City for claims or demands to the extent arising out of or in connection with any negligent act or failure to act of the City or any of its officers or elt'[.)loyees. 8.2 NOTICE. 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. This conduct shall in no way restrict the City's right to conduct its own defense. 8.3 PAYMENT OF EXPENSES. The Cornpany shall pay the City for expenses incurred in publication of notices and ordinances, for all election expenses, and for photocopying of documents arising from the preparation of this proposed Franchise and, if adopted, the Franchise. ARTICLE 9 UNDERGROOND CCNS"l'RUCTIOO l\ND OVERHEAD COWERSIOO 9.1 UNDERGROUND ELECTRICAL DISTRIBUTION E'ACILITIES. The Company shall place newly constructed electrical distribution facilities underground in accordance with and to the extent required by the City's subdivision regulations, standards and specifications. Nothing in this section shall require the Company to install facilities for which the charges provided in its tariffs have not been paid. -12 - I l 9. 2 OVERHEAD CONVERSION A'I' EXPENSE OF CCMPANY. A. As and when requested by the City, the Company will spend one percent (1%) of the preceding calendar year's electric revenues to move overhead electric distribution facilities located in public places in the City underground, provided that the undergrounding shall extend for a minimum distance of one block or 750 feet, whichever is less, or as may be mutually agreed by the parties. B. Any unexpended portion of the one percent (1%) of electric revenue may be carried over to succeeding years, and, in addition, upon request by the City, the Company shall anticipate amounts to be available for up to three ( 3) years in advance. Any amounts advanced shall be credited against amounts to be expended in succeeding years until such advances are eliminated. No relocation expenses which the Company is required to expend pursuant to Section 4.5 shall be.charged to this allocation. c. Funds to be expended pursuant to this section shall not be used in any project or situation for which and to the extent that the City has received federal or state funds for the purpose of undergrounding utilities. Funds to be expended pursuant to this section may be used for 11 matching 11 purposes with state or federal monies. D. If the Public Utilities Commission authorizes a system-wide program or programs of undergrounding electric distribution facilities, the Company will allocate to the program of undergrounding in the City such amount as is authorized by the Public Utilities Conmission, but in no case less than one percent (1%) of annual electric revenues. E. In addition to the provisions of this section, the City may require additional facilities to be moved underground at the City's expense. 9.3 TERMINATION. The City Council and the Company may agree at any time that the conversion program set forth in Section 9.2 be discontinued. Any such agree.ment shall be in writing. 'l'he City acknowledges that the establishment of this undergrounding fund creates no vested right in the City to convert the fund to cash. 9. 4 REVIEW. The Company shall keep the City informed as to existing and planned system capacity, construction and other activities. The City shall keep the Company informed as to existing and planned development, construction and other activities. Regular planning and coordination meetings will be held. The City and the Company shall consult and plan together regarding projects to be financed tmder Section 9. 2. The Corrpany shall provide nonbinding "ball park" cost estimates for planning purposes at no cost to the City. '11he final decision as to which projects are selected rests with the City, subject to the provisions of Section 9.2. The specific scheduling of projects rests with the Company, which shall make every reasonable effort to complete such projects within the time requested by the City. 9. 5 COOPERATION WITH O'TIIER UTILI'l1 IES. When the Company, other utilities, or other companies are placing lines tmderground, the Company shall attempt to have all lines placed underground as part of the same project. -13 - 9.6 EMERGENCIES. If there is an emergency affecting Company operations or service, the Company shall maintain ongoing communication with the City as to the nature of the problem and its anticipated duration and resolution. The Company shall develop and keep up to date and on file with the City a mutually agreeable plan to facilitate such cornnunication. At all times the Company shall have on file with the City a special twenty-four (24) hour telephone number, not available to the general public, which the City government can use 1:. to obtain information in the event of an emergency, and shall use other available methods as needed to facilitate communications with the City. In addition, the Company shall make infonnation available to residents as to any problem and its anticipated duration and resolution. ARTICLE 10 TRANSFER OF Fru\1'DllSE 10.1 CONSENT OF CITY REQUIRED. The Company shall not sell, transfer or assign any rights under this Franchise to another entity without the City Council's written approval, which shall not be unreasonably withheld. 10.2 TRANSFER FEE. In the event of a sale, transfer or assignment of rights under this Franchise, excepting only corporate reorganization of the Company not involving a third party, the transferee shall promptly pay to Englewood a pro rata share of one million dollars, which shall be calculated by multiplying one million dollars times a fraction of which the then population of Englewood is the numerator and the then population of Denver is the denominator. Such transfer fee shall not be surcharged to customers. Such transfer fee shall not be recovered frorn the City. The charging or collecting of a transfer fee is conclusively deemed reasonable. ARTICLE 11 PURCHASE AND CONDEHmT!Cfi 11.1 CITY'S RIGHT TO PURCHASE OR CONDEMN. The right of the City to construct, purchase or condemn utility facilities and the rights of the Company in connection therewith as provided by Colorado law are expressly recognized. For the purpose of purchase or condemnation, the Franchise shall be considered as two separate and individual franchises, one relating to the electrical system, and the other to the gas system. Nothing in this section shall constitute a waiver of any rights possessed by either party. 11.2 NEGOTIATIONS AND CONDEMNATION. No value shall be given to the rights granted under this Franchise. If the City desires to purchase either or both systems, the parties shall negotiate in good faith to determine a mutually acceptable purchase price. If the City and the Company cannot agree within ninety (90) days, the City may commence condemnation proceedings. -14 - 11.3 CONTINUED COOPERATION BY COMPANY. If the City purchases or condemns, the Company shall continue service, in whole or in part, at the City's request, for the duration of this Franchise pursuant to terms and conditions negotiated for such continued operation. The Company shall take no action which could inhibit the City's ability to effectively or efficiently use the acquired system(s). At the City's request, the Company shall supply gas and electric power for use by the City in the City system(s). 11.4 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 in which to exercise the right of first purchase by giving written notice to the Company. Should the City not provide the required 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 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 affording the City the rights referred to above, provided that if the transferee proposes to sell or dispose of such property within one (1) year, it shall not do so without first affording the City the rights referred to above. ARTICLE 12 REKJVAI. OF CCMPANY FACILITIES AT END OF FIWDITSE 12.1 LIMITATIONS ON COMPANY REMOVAL. If this Franchise is not renewed, or is forfeited, or the Company terminates any service provided for herein for any reason, and the City has not provided for service, the Company shall not remove the gas or electric system pending resolution of their disposition. The Company will not withhold any terrporary services necessary to protect the public and in such event shaJ.l be entitled only to monetary compensation in no greater amount than it would have been entitled to were such services provided during the term of this Franchise. Only upon receipt of written notice from the City shall the Company remove the system(s). ARTICLE 13 PROXJCTIOO OR TRANSPORTATIOO' OF GAS OR ELECTRICITY 13.1 TRANSPORTATION OF GAS. The City expressly reserves the right to obtain or produce gas. The Company will transport gas purchased by the City for use in City facilities pursuant to separate contracts negotiated with the City. The Company agrees to transport gas made available for sale on terms and conditions comparable to other contracts entered into contemporaneously by the Company. -15 - 13.2 SMALL POWER PRODUCTION AND CO-GENERATION. The City expressly reserves the right to engage in the production of electricity. The Company agrees to purchase City generated power pursuant to separate contracts negotiated with the City. ARTICLE 14 FORFEITURE 14.1 FORFEITURE. Both the Company and the City recognize there may be circumstances whereby compliance with this Franchise is impossible or is delayed. In those instances, the Company shall use its best efforts to comply in a timely manner and to the extent possible. If the Company fails to perform any of its obligations under this Franchise, the City Council may determine, after hearing, whether such failure is of a substantial nature. Upon receiving notice of such determination, the Company shall have a reasonable time, not to exceed six (6) months, in which to remedy the violations, unless the parties otherwise agree in writing. If after such time corrective actions have not been successfully taken, the City Council may declare the Franchise forfeited. This shall not limit or restrict any other rights or remedies available to the City or the Company at law or in equity. 14.2 CONTINUED OBLIGATIONS. Upon forfeiture, the Company shall continue to provide service to the City and its residents in accordance with the tenns 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. 15.1 AMENDMENTS. ARI'ICLE 15 ~ A. If the City Council or the Company proposes amendment(s) hereto, both parties will negotiate within a reasonable time in good faith in an effort to agree on mutually satisfactory amendment(s). As used in this section, "amendment" does not include a change authorized in Section 3.2. B. Any election required to implement an amendment shall be at the expense of the party proposing the arnendment(s). ARTICLE 16 MISCELIANWJS 16.1 SUCCESSORS AND ASSIGNS. The rights, privileges, franchises and obligations granted and contained in this ordinance shall inure to the benefit of and be binding upon Public Service Company, its successors and assigns. 16.2 THIRD PARTIES. Nothing contained in this Franchise shall be construed to provide rights to third parties. -16 - I 16.3 REPRESENTATIVES. Each party shall have a representative to whom notices shall be sent regarding this Franchise. Initially, the City's representative shall be the City Clerk and the Company's representative shall be the District Manager or registered agent. Notices, including notice of any change of representative, shall be in writing and forwarded by certified mail or hand delivery to the designated representative. 16.4 OI'HER LEGAL REMEDIES. Nothing herein contained shall liinit or restrict any legal rights that the City or the Company may possess. 16.5 SEVERABILITY. Should any one or more provisions of this Franchise be detenuined 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 tenn that will achieve the original intent of the parties hereunder. ARTICLE 17 APPROVAL 17.1 VOI'ER APPROVAL. This Franchise shall not become effective unless approved by a majority vote of the registered electors of the City voting thereon at a special municipal election to be held on Tuesday, June 21, 1988. 17.2 COMPANY APPROVAL. The Company shall file with the City Clerk its written offer of this Franchise and of the terms and provisions herein which written offer shall be submitted to the City at least ten days prior to the special municipal election, which offer shall not be revoked by the Company prior to the election. The favorable vote of the electors of the City of Englewood on the issue of this Franchise, shall constitute the City's granting of this Franchise. Section 4. Safety Clause. The City Council hereby finds, determines, and declares that this Ordinance is necessary for the preservation of the public health, safety and welfare. Section 5. The proper officials of the City of Englewood shall give notice of said special municipal election, which notice shall be published in the manner and for the length of time required by law, and the ballots cast at such election shall be canvassed and the result ascertained, determined, and certified as required by law. Introduced, read in full, and passed on first reading on the 18th of April, 1988. -17 - Published as a Bill for an Ordinance on the 20th day of April, 1988. Read by title and passed on final reading on the 2nd day of May, 1988. Published by title as Ordinance No./:!!.., Series of 1988, on the 4th day of May, 1988. ATI'EST: ~-1--. . 0/ I (i 1 -.;:vt,,,u::teL-bN V _,IU«. Patricia H. Crow, City Clerk I, Patricia H. Crow, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by title as Ordinance No. J..!i.., Series of 1988. ~~Jj_(/4,J Patricia H. Crow -18 - I C O U N C I L C O M M U N I C A T I O N DATE April 14, 1988 AGENDA ITEM ) I h~ A SUBJECT . Franchise Agreement with Public Service Company City Manager I/. YW \J IN I TIA TED BY ______ __,f'--'J_ · _______________ _ ACT I ON p RO PO SED ___ R_ec_o_m_m_en_d_a_t_i o_n_t_o .,...a_d_o_pt_a_B ,_· l_l_fo_r_a_n _o_r_d_i n_a_n_c_e ___ _ providing for a 25-year franchise agreement with the Public Service Company and for the establishment of an election on June 21, 1988. BACKGROUND The current franchise with the Public Service Company terminated on March 12, 1988. A new franchise will be required which will necessitate a public vote. The recom- mended date for the vote is June 21, 1988. Over the past year, a staff committee has been engaged in negotiating a new agree- ment with Public Service Company. A draft of that new agreement was submitted to Council two weeks ago and is attached once again herein as a Bill for an Ordinance. Council has also approved Resolution No. 16 which extends the terms and conditions of the previous franchise until the effective date of the new franchise which is Jul y 1 , 1988 . CURRENT STATUS The bill is quite lengthy, and therefore, I will attempt to summarize the key provi- sions for· Council: Article 2.3 Article 3.1 Article 3.2 The franchise is for 25 years commencing July 1, 1988 and ter- minating June 30, 2113. The current franchise is also for a 25- year term. Article XIV, Section 130 of the Charter restricts the period of time for a franchise to a maximum of 25 years. New franchise requires a three percent (3%) fee on the gross revenues from the sale of both gas and electricity within the City limits. The old franchise provided for a two percent (2%) fee on the gross revenue from the sale of gas and a three percent (3%) fee on the gross revenue from the sale of electricity. This article is a most-favored-nations type clause in which the city may, once each year, change the consideration paid to the City to equal the amount paid to any other municipality in Article 4.4 Article 7.1 Article 8.1 Article 9.1 Article 9.2 Article 10.1 Article 17.1 RECOMMENDATION Colorado. In addition, the Company must notify the city if any other municipality receives greater consideration for a similar franchise. Provides that Public Service Company shall restore both public and private property to its former condition when such property is used for excavation and construction. City has the right to determine compliance, to take steps to restore property to its former condition when the company fails to do so, and to be reim- bursed for any costs therefore. Allows City to use all poles and other suitable overhead struc- tures constructed by the Company at no cost. Indemnifies City for all Company activities. Provides that newly constructed electrical distribution facili- ties shall be placed underground. Provides a revenue pool of one percent (1%) of preceding calendar years electrical revenues for converting overhead electrical dis- tribution facilities to underground. Current franchise does not include this provision. Provides that the rights under this franchise cannot be sold, transferred or assigned to another entity without City Council approval. Requires an election on the date of June 21, 1988. It is recommended that Council approved a Bill for an Ordinance providing for a 25- year franchise agreement with the Public Service Company and for the establishment of an election on June 21, 1988. MEMO TO: FROM: DATE: RE: Andy Mccown, City Manager Nancy Reid, Assistant City Attorney April 4, 1988 Public Service I have a verbal ok from Tom O'Donnell that this draft is the draft which will go as far as his company is concerned. Therefore, I believe it is ready to go to City Council. bb