HomeMy WebLinkAboutOrdinance-1989-0816INTRODUCED BY COUNCILMEMBER SELSTAD
ORDINANCE NO.: 816
Series of 1989
TITLE: AN ORDINANCE GRANTING A FRANCHISE BY THE CITY OF WHEAT
RIDGE TO PUBLIC SERVICE COMPANY OF COLORADO, ITS
SUCCESSORS AND ASSIGNS, THE RIGHT TO FURNISH, SELL AND
DISTRIBUTE GAS AND ELECTRICITY 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 AND DISTRIBUTE GAS AND ELECTRICITY 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, SUCH GRANT BEING SUBJECT
TO APPROVAL BY THE ELECTORS OF THE CITY OF WHEAT RIDGE
AT A FRANCHISE ELECTION TO BE HELD AT A DATE AND TIME
ESTABLISHED BY THE CITY COUNCIL, SAID ORDINANCE TO TAKE
EFFECT AFTER APPROVAL BY THE VOTES OF THE CITY AT SAID
SPECIAL ELECTION.
WHEREAS, Section 15.6 of the Home Rule Charter of the City
of Wheat Ridge provides that "no franchise shall be granted
except upon approval by the majority of electors voting thereon";
and,
WHEREAS, Public Service Company of Colorado desires to
obtain the right, by franchise, to, among other things, furnish,
sell, and distribute gas and electricity to the City of Wheat
Ridge and all residents therein; and,
WHEREAS, the City and Public Service Company of Colorado
have negotiated the terms and conditions of said franchise as
contained herein; and,
WHEREAS, it is the desire of the City Council of the City of
Wheat Ridge to adopt said Ordinance and thereafter to submit the
question of approval of the grant of franchise to Public Service
Company of Colorado, subject to the terms and conditions set
forth herein, to the electors of the City of Wheat Ridge as
required by the Charter provision above set forth.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF WHEAT RIDGE, COLORADO, THAT:
Section 1. The Code of Laws of the City of Wheat Ridge is
hereby amended by adding thereto the following Chapter, Utility
Franchises, as follows:
CONTENTS
1. DEFINITIONS 1
2. GRANT OF FRANCHISE 5
§2.1 Grant of Franchise 5
§2.2 Street Lighting Service 5
§2.3 Term of Franchise 6
3. FRANCHISE FEE 6
§3.1 Franchise Fee 6
§3.2 Payment Schedule 7
§3.3 Change of Franchise Fee and
Other Franchise Terms 8
§3.4 Company to Report 8
§3.5 Franchise Fee Payment in Lieu of Other Fees 9
§3.6 Contract Obligation 9
4. SUPPLY, CONSTRUCTION AND DESIGN 10
§4.1 Supply of Gas and Electricity 10
§4.2 Restoration of Service 10
§4.3 Obligations Regarding Company Facilities 11
§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 13
§4.8 Technological Improvements 14
5. COMPLIANCE 14
§5.1 City Regulation 14
§5.2
Compliance
with City Requirements
15
§5.3
City Review of Construction and Design............
15
§5.4
Compliance
with PUC Regulations
16
§5.5
Compliance
With Air & Water Pollution Laws
16
§5.6
Inspection
17
6. REPORTS TO CITY 17
§6.1 Reports on Company Operations 17
§6.2 Copies of Tariffs, All PUC Filings 19
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7. CITY USE OF COMPANY FACILITIES 19
§7.1 City Use 19
§7.2 Underground Conduit 20
8. INDEMNIFICATION OF THE CITY 20
§8.1 City Held Harmless 20
§8.2 Payment of Expenses Incurred by City
in Relation to Ordinance 21
9. UNDERGROUND CONSTRUCTION AND OVERHEAD CONVERSION 22
§9.1 Underground Electrical Distribution Lines
in New Areas 22
§9.2 Overhead Conversion at Expense of Company 22
§9.3 Review of Undergrounding Program 24
§9.4 Cooperation With Other Utilities 24
10.
TRANSFER OF FRANCHISE
25
§10.1
Consent of City Required
25
§10.2
Transfer Fee
25
11.
PURCHASE OR CONDEMNATION
26
§11.1
City's Right to Purchase or Condemn
26
§11.2
Continued Cooperation by Company
26
§11.3
Negotiated Purchase Price or Condemnation Award...
27
12.
REMOVAL OF COMPANY FACILITIES AT END OF FRANCHISE
27
§12.1
Limitations on Company Removal
27
13.
TRANSPORTATION OF GAS
29
§13.1
Transportation of Gas
29
14.
SMALL
POWER PRODUCTION AND COGENERATION
29
§14.1
Company to Purchase
29
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15. FORFEITURE 30
§15.1 Forfeiture 30
§15.2 Judicial Review 30
§15.3 Other Legal Remedies 31
§15.4 Continued Obligations 31
16. AMENDMENTS 31
§16.1 Amendments to Franchise 31
§16.2 Changing Conditions 32
17. MISCELLANEOUS 32
§17.1 Successors and Assigns 32
§17.2 Third Parties 33
§17.3 Representatives 33
§17.4 Severability 33
§17.5 Entire Agreement 34
§17.6 Reimbursement of City Costs 34
18. APPROVAL 34
§18.1 Voter Approval 34
§18.2 Company Approval 35
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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 the City of Wheat Ridge, Jefferson County,
Colorado and includes the territory as currently is or may
in the future be included within the boundaries of the City
of Wheat Ridge.
1.2 "City Administrator" means the chief operating officer
of the City as defined in Section 3.4 of the Home Rule
Charter of the City of Wheat Ridge, or his designee.
1.3 "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.
1.4 "Council" or "City Council" refers to and is the
legislative body of the City.
1.5 "Director" or "Director of Public Works" means the
Director of Public Works of the City of Wheat Ridge as
appointed by the City Administrator, or the designee of the
Director of Public Works.
1.6 "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.
1.7 "Facilities" refer to and are all facilities reasonably
necessary to provide gas and electricity into, within and
through the City and include plants, works, systems, sub-
stations, transmission and distribution structures, lines,
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equipment, pipes, mains, conduit, transformers, underground
lines, gas compressors, meters, wires, cables and poles.
1.8 "Franchise" means the rights granted by this Ordinance
as well as all rights associated therewith pursuant to the
laws of the State of Colorado.
1.9 "Gas" or "Natural Gas" refers to and is such gaseous
fuels as natural, artificial, synthetic, liquefied natural,
liquefied petroleum, manufactured, or any mixture thereof.
1.10 "Mayor" means the duly elected Mayor of the City of
Wheat Ridge, as specified in Section 3.1 of the Home Rule
Charter of the City of Wheat Ridge, or his designee.
1.11 "Public Streets and Other Public Places" means streets,
alleys, boulevards, viaducts, bridges, roads and lanes that
are dedicated to, conveyed to or acquired by the City and
are used as routes for transportation by the public and all
other Public Places within the City.
1.12 "Public Easements" refer to and are public and dedicat-
ed easements created and available for use by inves-
tor-owned, or other public utilities for their facilities.
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1.13 "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.
1.14 "Residents" refers to and includes all persons, busi-
nesses, industry, governmental agencies, and any other
entity whatsoever, presently located or to be hereinafter
located, in whole or in part, within the territorial bound-
aries of the City.
1.15 "Revenues" refer to and are those amounts of money
which the Company receives from its customers within the
City from the sale and transportation of gas and from the
sale of electricity under rates authorized by the Public
Utilities Commission and represents amounts billed under
such rates as adjusted for refunds, the net write-off of
uncollectible accounts, corrections or other regulatory
adjustments, as well as money received by the Company from
the use by others of its overhead utility facilities within
the City.
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ARTICLE 2
GRANT OF FRANCHISE
§2.1 Grant of Franchise. The City of Wheat Ridge hereby
grants to Public Service 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 and distribute
gas and electricity 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 and distrib-
ute gas and electricity within and through the City and a
non-exclusive right to make reasonable use of the public streets
and other public places and public easements 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.
§2.2 Street Lighting Service. The rights granted in this
franchise encompass the non-exclusive franchise to provide street
lighting service to the City and the provisions of this franchise
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apply with full and equal force to the street lighting service
provided by the Company. Wherever reference is made to the sale
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 fran-
chise, this reference shall be deemed to include Company-owned
street lighting facilities, equipment, system and plant.
§2.3 Term of Franchise. This franchise shall take effect on
February 28, 1990. The term of this franchise shall be for
twenty (20) years, beginning with said effective date of this
franchise and expiring on February 27, 2010.
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 from the sale and transpor-
tation of gas and from the sale of electricity within the City
and three percent (3%) of the revenues received by the Company
for the use by others of its overhead utility facilities within
the City, so long as said three percent (3%) of such revenues is
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greater than the amount of One Thousand Dollars per calendar
year.
§3.2 Payment Schedule. For the franchise fee owed on
revenues received after the effective date of this franchise from
the sale and transportation of gas and the sale of electricity,
payment shall be made in monthly installments not more than
thirty days following the close of the month for which payment is
to be made. For the franchise fee owed on revenues received from
the use by others of the Company's overhead utility facilities,
payment, if required under Section 3.1, shall be made within
ninety (90) days following the close of the calendar year for
which they are due. Initial and final payments shall be prorated
for the portions of the months at the beginning and end of the
term of this ordinance. All payments shall be made to the City
Treasurer's office. The City Treasurer, or other authorized rep-
resentatives, shall have access to the books of the Company for
the purpose of auditing or checking to ascertain that the fran-
chi se fee has been correctly computed and paid.
In the event an error by the Company results in an
overpayment of the franchise fee to the City and said overpayment
is 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.
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§3.3 Change 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, may
review and change the franchise fee and other significant finan-
cial benefit the City may be entitled to receive as a part of the
franchise. The Council may change the franchise fee payments, or
other provision of this franchise to cause the City to receive a
franchise fee, or other significant financial benefit, under this
franchise equivalent to the franchise fee or other significant
financial benefit that the Company may pay to (or obligate itself
for) any other city or town in any other franchise under which
the Company renders any gas or electric service in Colorado.
§3.4 Company to Report. The Company shall report to the
City within 60 days of execution, the terms of any franchise or
of any change of franchise in any other municipality that may be
greater than or different from the franchise fee or other signif-
icant financial benefit to the City contained in this franchise.
If the City Council decides the franchise fee or other signifi-
cant financial benefit should be changed or incorporated into the
franchise, it shall provide for such change by Ordinance; provid-
ed, however, that any changed franchise fee or other significant
financial benefit shall not be higher than the highest franchise
fee or other significant financial benefit paid by the Company to
any municipality within the State of Colorado. Any such change
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of franchise fee or other significant financial benefit shall not
be considered an amendment, renewal or enlargement of this
franchise.
§3.5 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 occupancy tax, license tax, permit charge, inspection
fee, or similar tax 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 busi-
nesses.
§3.6 Contract Obligation. The franchise ordinance consti-
tutes 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 equal
to the amount which would have been paid as a franchise fee. In
the alternative, if the franchise fee is so declared invalid, the
City shall have the right to impose occupation and licensing fees
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and permit charges reasonably equivalent on an annual rate to
said franchise fee. If the Company fails to fulfill any substan-
tial obligation under this ordinance, the City will have a breach
of contract claim against the Company, in addition to any other
remedy provided by law.
ARTICLE 4
SUPPLY, CONSTRUCTION AND DESIGN
§4.1 Supply of Gas and Electricity. The Company shall take
all reasonable and necessary steps to 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 should be interrupted, the
Company shall take all necessary and reasonable actions to
restore such supply within the shortest practicable time.
§4.2 Restoration of Service. In the event the Company's
electric or 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.
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§4.3 Obligations Regarding Company Facilities. The Company
shall install, maintain, repair, renovate and replace its facil-
ities 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 and electric service to the
City and its residents. Company facilities shall not interfere
with any existing City telecommunications facilities, traffic
signal lights or with water mains, sewer mains or other municipal
use of public 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 A. Excavation and Construction. All excavation and
construction work done by the Company shall be done in a timely
and expeditious manner which minimizes the inconvenience to the
public and individuals. All public and private property 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 condi-
tion.
B. Repair of Damage. The Company shall promptly repair
any and all damage caused by Company activities or facilities.
If such damage poses a threat to health, safety or welfare of the
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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.
C. Inspection. All work is subject to inspection by the
City pursuant to the City's ordinances. The Company shall
promptly perform reasonable remedial action required by the City
pursuant to said inspection.
D. Contractors. The Company and any and all contractors
thereof shall comply with all City ordinances and regulations.
All contractors of the Company working in public streets and
public places shall hold the necessary contracting licenses
required by a City ordinance.
§4.5 Relocation of Company Facilities. Any relocation of
the Company's facilities in any public street or other public
place required, caused or occasioned by any City project shall be
at the cost of the Company. The Company shall use its best
efforts to complete any such relocation within 90 calendar days
from the date when the City makes its request, such time to be
established by the Company as soon as possible after the City's
request. The Company shall be granted an extension of time of
completion equivalent to any delay caused by conditions not under
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its control provided that the Company proceeds with due diligence
at all times.
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.
Following relocation, all property affected by such relo-
cation shall be restored to substantially its former condition by
the Company at its sole expense. Nothing herein contained shall
be construed to impose any obligation upon the City to make any
payment for any relocation of the Company's 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. Service to the expanded area shall be in accordance with
the terms of this franchise agreement, including payment of
franchise fees.
§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 and electric
service to the City for municipal uses within the City limits or
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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 general-
ly introduce and install, as soon as practicable, gas and elec-
trical energy technological advances in its equipment and service
within the City when such advances are technically and econom-
ically feasible and are safe and beneficial to the City and its
residents. Upon request by the City, the Company shall review
and promptly report advances which have occurred in the gas or
electric utility industry that have been incorporated into the
Company's operations in the City in the previous year or will be
so incorporated in the six months following the City's request.
In no event shall this section be construed to authorize the
installation of fiber optic facilities, not related to gas or
electric utility service provided by the Company.
ARTICLE 5
COMPLIANCE
§5.1 City Regulation. The City expressly reserves, and the
Company expressly recognizes, the City's right and duty to adopt,
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from time to time, in addition to the provisions herein con-
tained, such charter provisions, ordinances and rules and regu-
lations 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. The Company shall comply with all
adopted local laws, rules and regulations, provided, however,
that nothing herein contained shall waive the Company's right to
challenge the validity of such law, rule or regulation.
§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.
If requested 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 within 30 days after
issuance. Except for emergencies, the City may require that all
installations be coordinated with the City's street improvement
programs. The City Director of Public Works shall be the City's
agent for inspection and for compliance with City ordinances and
regulations on any such projects.
§5.3 City Review of Construction and Design. When known, no
less than 60 days prior to construction of any significant gas
facilities above ground or, for electrical energy, any
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transmission lines or generating plant, building, substation, or
similar structure within the City, the Company shall advise the
Director of Public Works of such planned construction, and, if
requested by the City, the Company shall furnish to the City the
plans for such facilities. In addition, 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 ascertain, inter alia, (1) that all applicable laws
including building and zoning codes and air and water pollution
regulations are complied with, (2) that aesthetic and good
planning principles have been given due consideration and (3)
that adverse impact on the environment has been minimized.
§5.4 Compliance with PUC Regulations. The gas and elec-
trical energy which the Company distributes shall conform with
the standards promulgated by the Colorado Public Utilities
Commission in the Rules Regulating the Service of Gas and Elec-
tric Utilities and with the tariff provisions of the Company
setting standards, as the same may be amended from time to time.
§5.5 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 Federal and State air and water pollution laws. Upon
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the City's request, the Company will provide the City with a
status report of such measures.
§5.6 Inspection. All work and any portion of the Company's
system used to serve the City and its residents is subject to
inspection by the Mayor or his designee. The Company shall
promptly perform reasonable remedial action required by the City
pursuant to said inspection. 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 discrep-
ancies affecting the City's interest in a prompt and efficient
manner.
ARTICLE 6
REPORTS TO CITY
§6.1 Reports on Company Operations. The Company shall
submit reasonable financial and other necessary reports contain-
ing or based on information available from the Company's books
and records as the City may from time to time request with
respect to the operations of the Company under this franchise,
provided that such information can be provided at a reasonable
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cost. Such reports may be changed from time to time as may be
mutually agreeable between the City and the Company. Initially
the City requests the following reports on, or before, May 1 of
each year:
(1) On an annual basis the return earned by the Company on
operations and the rate base used for calculation of such return
as is currently provided or as may in the future be provided to
the Public Utilities Commission in conjunction with various
adjustment clause provisions.
(2) A list of all real property and leasehold interests in
real property owned by the Company within the municipal bound-
aries of Wheat Ridge as the same may be changed from time to
time, 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.
(3) Short term (less than three years) and long range (over
three years) plans for all capital improvements, construction and
excavation within the City or affecting service to the City and
its residents.
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§6.2 Copies of Tariffs, All PUC Filings. The Company shall
keep on file in its nearest Company office, all tariffs, rules,
regulations and policies approved by the Colorado Public Util-
ities Commission ("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 filings affecting
said service which it makes with the Colorado PUC.
ARTICLE 7
CITY USE OF COMPANY FACILITIES
§7.1 City Use. The City shall have the right, for the purpose of
stringing wires, to use all poles and suitable overhead struc-
tures constructed by the Company within the City, which use shall
not include the distribution or transmission of electricity.
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 from
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
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such a manner as not to constitute a safety hazard or to inter-
fere unnecessarily with the Company's use of same.
§7.2 Underground Conduit. If the Company installs new electric
underground conduit or opens a trench or replaces such conduit,
the Company shall provide adequate advance notice to permit
additional installation of similar conduit and pull wire for the
City. If the City wants additional similar conduit and pull wire
installed, it will so notify the Company and provide similar
conduit and pull wire at its expense to the Company which will
install it without further expense to the City provided that such
action by the City will not unnecessarily interfere with the
Company's facilities or delay the accomplishment of the project.
ARTICLE 8
INDEMNIFICATION OF THE CITY
§8.1 City Held Harmless. The Company shall construct, maintain
and operate its facilities in a manner which provides reasonable
protection against injury or damage to persons or property;
provided, however, said obligation of the Company hereunder shall
not increase or decrease its liability on third party claims; and
provided further that the Company's obligation to the City
hereunder shall not be diminished by said exception. The Company
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shall save the City harmless and indemnify the City from and
against all lawsuits, liability, damage, claims, demands, judg-
ments and losses whatsoever in nature, and reimburse the City for
all its reasonable expenses, arising cut of the operations of the
Company within the City and the securing of and the exercise by
the Company of the franchise rights granted in this Ordinance,
including any third party claims, administrative hearings and
litigation. None of the City expenses reimbursed by the Company
under this Section shall be surcharged. Nothing herein contained
shall obligate the Company to save the City harmless and indemni-
fy the City to the extent any lawsuits, liability, damage,
claims, demands, judgments and loses 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 act or failure to act of the City or of its
officers, agents or employees. The parties specifically acknowl-
edge and agree that the Company, in exercising its rights and
obligations under this franchise, is an independent entity and is
not an entity controlled by or subject to the control of the City
for the purposes of C.R.S. §24-91-103.5.
§8.2 Payment of Expenses Incurred by City in Relation to
Ordinance. At the City's option, the Company shall pay in
advance or reimburse the City for expenses incurred in publica-
tion of notices and ordinances and for photocopying of documents
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arising out of the negotiations or process for obtaining the
franchise. None of the City expenses reimbursed by the Company
under this section shall be surcharged against the Wheat Ridge
rate payers.
ARTICLE 9
UNDERGROUND CONSTRUCTION AND OVERHEAD CONVERSION
§9.1 Underground Electrical Distribution Lines in New Areas. The
Company will place newly constructed electrical distribution
lines underground to serve new residential subdivision areas in
accordance with the Company's tariffs and City subdivision
regulations.
§9.2 Overhead Conversion at Expense of Company.
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 electric distribution facilities located in
public streets and other public places in the City underground,
provided that the undergrounding shall extend for a minimum
distance of one block or 750 feet.
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
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amounts to be available for up to 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 "matching" purposes with state or
federal monies.
D. If the Public Utilities Commission authorizes a sys-
tem-wide program or programs of undergrounding electric dis-
tribution facilities, the Company will allocate to the program of
undergrounding in the City such amount as is authorized by the
Public Utilities Commission, 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.
F. The City acknowledges that the establishment of this
undergrounding fund creates no vested right in the City to the
undergrounding monies. Further, if such monies are not expended
pursuant to the conditions hereof, the fund is not convertible to
cash or available for any other purposes.
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G. The City and the Company shall mutually plan in advance
the undergrounding projects which shall be undertaken according
to the provisions of this section. The Company shall not with-
hold approval of the plans of the City except where reasonably
necessary for safety or to protect the operating integrity of the
Company's electric system.
§9.3 Review of Undergrounding Program. Representatives of both
the City and the Company shall meet periodically to review the
Company's undergrounding program. This review shall include:
(a) Undergrounding programs, including conversions and
replacements which have been accomplished or are underway by
the Company, together with the Company's plans for addition-
al undergrounding;
(b) Undergrounding projects anticipated by the City.
Such meetings shall be held to achieve a continuing
program for the orderly undergrounding of electrical lines in the
City.
§9.4 Cooperation With Other Utilities. When undertaking a
project of undergrounding, the City and the Company shall work
with other utilities or companies which have their lines overhead
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to attempt to have all lines undergrounded as part of the same
project. When other utilities or companies are placing their
lines underground, the Company shall cooperate with these util-
ities and companies and undertake to underground Company facil-
ities as part of the same project where feasible. The Company
shall not be required to pay the costs of any other utility or
company in connection with work under this section.
ARTICLE 10
TRANSFER OF FRANCHISE
§10.1 Consent of City Required. The Company shall not
transfer or assign any rights under this franchise to a third
party, excepting only corporate reorganizations of the Company
not including a third party, unless the City shall approve in
writing such transfer or assignment. Approval of the transfer or
assignment shall not be unreasonably withheld.
§10.2 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 shall be subject to the conditions that
the transferee shall promptly pay to Wheat Ridge a pro rata share
of one million dollars, which pro rata amount of one million
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dollars shall be calculated by multiplying one million dollars
times a fraction of which the then population of Wheat Ridge 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 electric or gas rates of customers in Wheat Ridge
or by surcharge by the transferee or the Company.
ARTICLE 11
PURCHASE OR CONDEMNATION
§11.1 City's Right to Purchase or Condemn. The right of the
City to construct, purchase or condemn any public utility works
or ways, and the rights of the Company in connection therewith,
as provided by the Colorado Constitution and statutes, are hereby
expressly reserved.
§11.2 Continued Cooperation by Company. In the event the
City exercises its option to purchase or condemn, the Company
agrees that, at the City's request, it will continue to supply
any service it supplies under this franchise, for the duration of
the term of this franchise pursuant to terms and conditions
negotiated for such continued operation.
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11.3 Negotiated Purchase Price or Condemnation Award. Upon
the exercise of the City's option to purchase, the parties shall
negotiate in good faith to determine a mutually acceptable
purchase price. No value shall be given to the franchise or to
public rights-of-way. If the City and Company cannot reach
agreement as to the purchase price or acceptable payment terms
within ninety (90) days after commencement of negotiations, the
City may commence condemnation proceedings, and each party shall
have the rights provided by law relating to condemnation; provid-
ed, however, no award shall be made for the value of the fran-
chise or public rights-of-way.
ARTICLE 12
REMOVAL OF COMPANY FACILITIES AT END OF FRANCHISE
§12.1 Limitations on Company Removal. In the event this
franchise is not renewed at the expiration of its term or the
Company terminates any service provided herein for any reason
whatsoever, and the City has not purchased or condemned the
system and has not provided for alternative gas or electrical
service, the Company shall have no right to remove said system
pending resolution of the disposition of the system. The Company
further agrees it will not withhold any temporary services
necessary to protect the public and shall be entitled only to
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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 stating that the City has adequate alternative gas and
electrical energy sources to provide for the people of the City
shall the Company be entitled to remove any or all of said
systems in use under the terms of this franchise.
Upon such notice from the City and within a reasonable time,
the Company, at its sole expense, shall remove from the public
streets and public easements all overhead distribution facil-
ities belonging to the Company which are not purchased 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 gas and electricity distribution facilities which
are not so purchased within a reasonable time after the receipt
by the Company of a written notice from the City that said
underground distribution facilities constitute a hazardous
condition or interfere with a public use of the subsurface of
said public streets and public places. All property affected by
such removal shall be restored by the Company to substantially
its former condition after said removal. The Company need not
remove any property from said public streets and public easements
which property the Company shall continue to use and maintain
pursuant to contractual arrangements with the City.
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ARTICLE 13
TRANSPORTATION OF GAS
§13.1 Transportation of Gas. The City expressly reserves the
right to obtain or produce gas. The Company shall transport
natural gas purchased by the City for use in City facilities
pursuant to separate contracts 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 with similarly situated customers.
ARTICLE 14
SMALL POWER PRODUCTION AND COGENERATION
§14.1 Company to Purchase. The City expressly reserves the
right to engage in the production of electricity. The Company
agrees to negotiate for the purchase of City-generated power in
accordance with its tariffs and applicable Public Utilities
Commission Rules and Regulations.
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ARTICLE 15
FORFEITURE
§15.1 Forfeiture. 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 circum-
stances beyond the Company's control. 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 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 hearing, that such failure is of a
substantial nature. Upon receiving notice of such determination,
the Company shall have a reasonable time not to exceed 180 days
in which to remedy the violations, 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, shall determine whether any or all rights
and privileges granted the Company under this ordinance shall be
forfeited.
§15.2 Judicial Review. Any such declaration of forfeiture
shall be subject to judicial review as provided by law.
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§15.3 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.
§15.4 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 alterna-
tive arrangements for such service. If the Company fails to
provide continued service, it shall be liable for damages to the
City.
ARTICLE 16
AMENDMENTS
§16.1 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 30
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 amend-
ment(s). The word "amendment" as used in this section does not
include a change authorized in §3.3.
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§16.2 Changing Conditions. The Company and the City recog-
nize that many aspects of the gas and electric utility busi-
nesses are currently the subject of discussion, examination and
inquiry by different segments of 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
the 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 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 satisfac-
tory arrangements to effect a proper accommodation of any such
developments.
ARTICLE 17
MISCELLANEOUS
§17.1 Successors and Assigns. The rights, privileges,
franchises and obligations granted and contained in this ordi-
nance shall inure to the benefit of and be binding upon Public
Service Company, its successors and assigns.
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§17.2 Third Parties. Nothing contained in this franchise
shall be construed to provide rights to third parties.
§17.3 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 shall be sent
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 Administrator and to the Company's
North Metropolitan Regional Manager. Currently the addresses are
as follows:
For the City of Wheat Ridge:
7500 West 29th Avenue
Wheat Ridge, Colorado 80033
For the Company:
5460 West 60th Avenue
Arvada, Colorado 80003
§17.4 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,
-33-
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.
§17.5 Entire Agreement. This franchise constitutes the
entire agreement of the parties. There have been no representa-
tions made other than those contained in this franchise.
§17.6 Reimbursement of City Costs. In the event the City
institutes litigation against the Company for a breach of this
Ordinance or for an interpretation of the Ordinance, and the City
is the prevailing party, the Company shall reimburse the City for
all costs related thereto, including reasonable attorneys' fees.
ARTICLE 18
APPROVAL
§18.1 Voter Approval. This grant of franchise shall not
become effective unless approved by a majority vote of the
qualified electors of the City voting thereon at a Special
Municipal Election to be held on a date to be hereinafter estab-
lished by the City Council.
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§18.2 Company Approval. The Company shall file with the City
Clerk its written acceptance of this franchise and of all of its
terms and provisions at least ten (10) days prior to the Special
Municipal Election. The Company shall file with the City Clerk
its written ratification thereof no later than ten (10) days
after the approval of this franchise by the qualified electors of
the City at said Special Election. The acceptance and ratifica-
tion shall be in form and content approved by the City Attorney.
If the Company shall fail to timely file its written acceptance
as herein provided, this franchise shall be and become null and
void.
Section 2. Severability. If any clause, sentence, para-
graph, or part of this ordinance or the application thereof to
any person or circumstances shall for any reason be adjudged by a
court of competent jurisdiction invalid, such judgment shall not
affect application to other persons or circumstances.
Section 3. Safety Clause. The City Council hereby finds,
determines, and declares that this ordinance is promulgated under
the general police power of the City of Wheat Ridge, that it is
promulgated for the health, safety, and welfare of the public,
and that this ordinance is necessary for the preservation of
health and The City Council further determines that the ordinance
-35-
bears a rational relation to the property legislative object
sought to be attained.
Section 4. This ordinance shall take effect upon approval
by the registered electors of the City of Wheat Ridge at a
special election held pursuant to the provisions of Section 15.6
of the Home Charter of the City of Wheat Ridge, said election to
be called and held pursuant to the provisions of the Home Rule
Charter of the City of Wheat Ridge.
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INTRODUCED, READ AND ADOPTED on first reading by a vote of
7 to 1 on this 27th day of November 1989,
ordered published in full in a newspaper of general circulation
in the City of Wheat Ridge and Public Hearing and consideration
on final passage set for December 11 19 89 at 7:30 o'clock
p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat
Ridge, Colorado.
READ, ADOPTED AND ORDERED PUBLISHED on second and final
reading by a vote of 8 to 0 this 11th day of
December , 19 89
SIGNED by the Mayor on this 12tlday of December , 19 89
ATTEST:
- rL~IL ~.aa c c7-•-~~
Wanda Sang, City Cl
Mayor
APPROVED AS TO FORM BY
OFFICE OFITY TTORNE
John E Hayes, City &Vtorney
First Publication: November 30, 1989
Second Publication: December 14, 1989
Wheat Ridge Sentinel:
Effective Date: Election will be held on February 13, 1990
-37-
lAN g~ (Decision No. C91-27)
BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO
w w w
THE APPLICATION OF PUBLIC SERVICE )
COMPANY OF COLORADO FOR AN ORDER ) DOCKET NO. 9OA-821F
GRANTING TO IT A CERTIFICATE OF )
PUBLIC CONVENIENCE AND NECESSITY TO ) DECISION GRANTING APPLICATION
EXERCISE FRANCHISE RIGHTS IN THE ) TO EXERCISE FRANCHISE RIGHTS
CITY OF WHEAT RIDGE, COLORADO. )
January 9, 1991
STATEMENT, FINDINGS OF FACT, AND CONCLUSIONS
BY THE COMMISSION:
On November 29, 1990, Public Service Company of Colorado (Public
Service) filed Docket No. 90A-821F seeking a Commission order granting to
it a Certificate of Public Convenience and Necessity to Exercise
Franchise Rights in the City of Wheat Ridge, Colorado. Notice of the
application was given by the Commission on 'December 5, 1990, to all
interested persons, firms, and corporations. No motions to intervene or
protests have been filed to date, and the application is unopposed and
uncontested. Accordingly, the application may be determined without the
necessity of a formal oral hearing, in accordance with S 40-6-109(5),
C.R.S., and Rule 24 of the Commission's Rules of Practice and Procedure.
Public Service is a Colorado corporation operating as a public
utility subject to the jurisdiction of the Commission and is engaged in,
inter alia, the generation, transmission, purchase, distribution,
transportation, and sale of natural gas in various areas in the State of
Colorado. All operations to be conducted by Public Service under the
certificate of public convenience and necessity sought in its application
shall be conducted under the name of Public Service.
Public Service requests that the Commission issue an order
granting to it a certificate of public convenience and necessity to
exercise franchise rights in the City of Wheat Ridge, Colorado, in
accordance with Ordinance No. 816-1989 passed and adopted by the City
Council of Wheat Ridge on December 11, 1989, and submitted to a vote of
the electorate of Wheat Ridge. At the election held on February 13,
1990, the franchise was approved.
f%istributsd by Ci t, )"!--inistrato!
%ity 2roag, i:e iic,ada:~
Othe r: Zi-C.
Public Service has been providing gas and electric service to
Wheat Ridge and its inhabitants pursuant to the terms and conditions of a
gas and electric franchise granted by Ordinance No. 19-1969, adopted on
January 27, 1970. Authority to operate under the franchise was granted
by the Commission in Decision No. 74652 issued April 6, 19700 in
Application No. 24188.
Public Service seeks in its application to continue the gas and
electric service for the benefit of its customers in Wheat Ridge, the
continuation of which will serve the public interest. The public
convenience and necessity require granting approval for the exercise of
the franchise rights granted by Wheat Ridge.
Public Service obtains natural gas, through sale and
transportation, for service under the franchise from Western Gas Supply
Company, an intrastate natural gas pipeline company under the
jurisdiction of the Commission and a wholly-owned subsidiary of Public
Service, and from Colorado Interstate Gas Company, an interstate natural
gas pipeline company, under the jurisdiction of the Federal Energy
Regulatory Commission. Public Service obtains electricity for service
under the franchise from its own electric generation facilities and from
various power purchase agreements and transmits it to Wheat Ridge through
its interconnected electric system. Public Service's tariffs under
Colorado P.U.C. No. 5 Gas and Colorado P.U.C. No. 6 Electric, currently
on file with the Commission, will be used for service under the
application. There is no other public utility authorized to service
gaseous fuel or electricity in Wheat-Ridge.
Public Service has the financial ability and is qualified and
competent to conduct the utility operations sought under its application.
The Commission, based upon its review of the application, and
being fully advised in the premises, concludes that the application is in
the public interest and should be granted.
THEREFORE THE COMMISSION ORDERS THAT:
Public Service Company of Colorado is authorized to exercise
franchise rights in the City of Wheat Ridge, Colorado, in accordance with
Ordinance No. 816-1989 passed and adopted by the City Council of Wheat
Ridge on December 11, 1989, and approved by the electorate of Wheat Ridge
on February 13, 1990. This Decision shall be a certificate of public
convenience and necessity therefor.
2