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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 -i- 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 -ii- 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 -iii- 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, -2- 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. -3- 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. -4- 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 -5- 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 -6- 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. -7- §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 -8- 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 -9- 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. -10- §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 -11- 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 -12- 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 -13- 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, -14- 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 -15- 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 -16- 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 -17- 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. -18- §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 -19- 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 -20- 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 -21- 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 -22- 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. -23- 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 -24- 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 -25- 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. -26- 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 -27- 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. -28- 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. -29- 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. -30- §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. -31- §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. -32- §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. -34- §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. -36- 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