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HomeMy WebLinkAboutordinance.council.011-98 CITY OF ASPEN ORDINANCE NO. ~f (Series of 1998) AN ORDINANCE OF THE CITY OF ASPEN, COLORADO, GRANTING A FRANCHISE TO HOLY CROSS ELECTRIC ASSOCIATION, INC., ITS SUCCESSORS AND ASSIGNS, TO LOCATE, BUILD, INSTALL, CONSTRUCT, ACQUIRE, PURCHASE, EXTEND, MAINTAIN AND OPERATE INTO, WITHIN AND THROUGH .A PORTION OF THE CITY OF ASPEN ALL NECESSARY AND CONVENIENT FACILITIES FOR THE PURCHASE, GENERATION, TRANSMISSION AND DISTRIBUTION OF ELECTRICAL ENERGY, AND TO. FURNISH, SELL AND DISTRIBUTE SAID ELECTRICAL ENERGY TO THE RESIDENTS THEREOF FOR LIGHT, HEAT, POWER AND OTHER PURPOSES BY MEANS OF CONDUITS, CABLES, POLES AND WIRES STRUNG THEREON, OR OTHERWISE ON, OVER, UNDER, ALONG, ACROSS AND THROUGH ALL STREETS, ALLEYS, VIADUCTS, BRIDGES, ROADS, LANES AND OTHER PUBLIC WAYS AND PLACES THEREIN, ALL IN PITKIN COUNTY, COLORADO, AND HXING THE TERMS AND CONDITIONS THEREOF. WHEREAS, the City staff and Holy Cross have negotiated an agreement providing for a grant .of franchise subject to approval by the City Council of the City of Aspen .and the electors of the City of Aspen; and WHEREAS, the. City Council has determined that the grant of franchise is in the best interests of the citizens of the City of Aspen. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1. Subject to approval by a majority of the electors of the City of Aspen voting thereon in accordance with Section 11.4 of the Home Rule Charter of the City of Aspen, the following franchise agreement is hereby approved by the City Council: ARTICLE 1 SHORT TITLE 1.1 This Ordinance shall be known and may be cited as the "Holy Cross Electric Association, Inc. FranChise Ordinance." ARTICLE 2 DEFINITIONS For the purposes of this Ordinance, the following terms shall have the meanings given herein: 2.1 "Municipal Service Area" refers to a specific tract of land within the municipal boundaries of the City of Aspen described as follows: Beginning at a point lying easterly of Block 40 in the East Aspen Townsite, where the easterly extension of the center of Dean Street intersects the center of the Roaring Fork River; thence westerly along the center of Dean Street to the center of South Monarch Street; thence northerly along the center of South Monarch Street to the center of Durant Avenue; thence westerly along the center of Durant Avenue to the center of South Garmisch Street; thence northerly along the center of South Garmisch Street to the center of Cooper Avenue; thence westerly along the center of Cooper Avenue to its intersection with the boundary of the Original Aspen Townsite; thence northwesterly along the boundary of the Original Aspen Townsite to the center of South Fifth Street; thence northerly along the center of South Fifth Street to the center of West Hopkins Avenue; thence westerly along the center of West Hopkins Avenue to the center of South Seventh Street; thence northerly along the center of South Seventh Street to the center of Main Street; thence westerly to the southeast comer of the Villa Annexation, filed August 18, 1972, in Plat Book 4 at Page 270, Pitkin 2 County, Public Records; thence westerly along the southerly boundary of the Villa Annexation to the southwest comer thereof, thence noxtherly along the westerly boundary of the Villa annexation to the northwest comer thereof, thence easterly along the northerly boundary of the Villa Annexation to its intersection with the boundary of the Original Aspen Townsite; thence northerly along the boundary of the Original Aspen Townsite to the center of West Smuggler Street; thence easterly along the center of West Smuggler Street to its intersection with the boundary of the Original Aspen Townsite; thence southeasterly along the boundary of the Original Aspen Townsite to its intersection with the boundary of the Treeman Neighborhood Commercial PrOject, filed April 8, 1977, in Plat Book 5, at Pages 70 through 75 inclusive, of the Pitldn County, Colorado, Public Records; thence northeasterly along the boundary of the Treeman Neighborhood Commercial Project to its intersection with the center of Puppy Smith Street; thence southeasterly along the center of Puppy Smith Street to the intersection of Puppy Smith Street projected with the easterly right-of-way of Mill Street; thence southerly along the easterly fight-of-way of Mill Street a distance of 63 feet, more or less, to the intersection of the easterly right-of- way of Mill Street with the southwest comer of a tract of land described in Book 193 at Page 278, Pitkin County, Colorado, Public Records; thence southeasterly along the boundary of the said Tract of land described in said Book 193 at Page 278 a distance of 120 feet, more or less; thence northeasterly along the southeasterly boundary line of said Tract of land described in Book 193 at Page 278 to the intersection of said southeasterly boundary line projected with the center of the Roaring Fork River; thence easterly and southerly along the center of the Roaring Fork River to the point of beginning. 2.2 "Aspen Franchise Area" refers to all land inside the municipal boundaries of the City of Aspen, except for the Municipal Service Area, as of the date of enactment of the Ordinance, and all land annexed within such boundaries hereafter. 2.3 "City" is the City of Aspen, Pitldn County, Colorado, the home role municipal corporation which is the grantor of rights under this franchise, and its successors. 2.4 "Company" refers to Holy Cross Electric Association, Inc., a Colorado corporation, the grantee of rights under this franchise, its successors and assigns. 2.5 "Council" refers to the legislative body of the City, known as the City Council of the City of Aspen, Colorado. 2.6 "Facilities" refers to all overhead and underground electric facilities, buildings, and structures necessary to provide electricity into, within and through the Aspen FranchiSe Area including, but not limited to, such essential apparatus, appliances, plants, systems, substations, works, transmission and distribution lines and structures, anchors, cabinets, cables, conduits, guy posts and guy wires, meters, microwave and communication facilities, overhead and underground lines, pedestals, poles, regulators, sectionalizers, switchgears, transformers, various pad mounted and pole mounted equipment, vaults, wires, and all other related electrical equipment required for the distribution, generation, maintenance, operation, purchase, and transmission of electrical energy. 2.7 "Public Easements" refers to easements created and available for use by any public utility for its facilities. 2.8 "Private Easements" refers to easements created and available only for use by the Company for its Facilities, or by the Company and other selected users or utilities. 2.9 "Residents" refers to and includes all persons, businesses, industry, governmental agencies, and any other entity whatsoever, presently maintaining a residence or location in, or to be hereinafter located within, in whole or in part, the municipal boundaries of the Aspen Franchise Area. 2.10 "Revenues" unless otherwise specified refers to and are the gross amounts of money that the Company receives from its customers within the Aspen Franchise Area from the sale of bundled electrical energy, or the transportation, distribution, or sales of electric energy if unbundled, for any particular period of time. 2.11 "Streets and Other Public Places" refers to streets, alleys, viaducts, bridges, roads, lanes and other public ways and places in the Aspen Franchise Area, subject to limitations stated herein. ARTICLE 3 GRANT OF FRANCHISE 3.1 Grant of Right to Serve. Subject to the conditions, terms and provisions contained in this franchise, the City of Aspen hereby grants to the Company the right, privilege and authority to locate, build, install, construct, acquire, purchase, extend, maintain and operate into, within and through all of the Aspen Franchise Area all necessary and convenient Facilities for the purchase, generation, transmission, and distribution of electrical energy, together with the right and privilege for the period of this franchise, upon the terms and conditions herein specified to fumish, sell, and distribute said electrical energy to the Residents of the Aspen Franchise Area for light, heat and power or other purposes. Customers whose property straddles the Aspen Franchise Area and the Municipal Service Area shall continue to be served by the utility serving such customers at the time this Franchise Ordinance is enacted. In addition, the Company shall have the non-exclusive right, by agreement with the City, to locate Facilities within the Municipal Service Area which are necessary to serve customers within the Aspen Franchise Area. Consent is hereby reaffirmed for such Facilities already within the Municipal Service Area. 3.2 Scope of Grant. Such grant includes the right to furnish electrical energy either overhead, on poles and wires, or underground, or otherwise, on, over, under, along 4 across and through any and all Streets and Other Public Places, and on, over, under, along, across and through any extension, connection with, or continuation of, the same and/or on, over, under, along, across and through any and all such new Streets and Other Public Places as may be hereafter laid out, opened, located, or constructed within the municipal boundaries now or hereafter described as the Aspen Franchise Area. The Company is further granted the right, privilege and authority to excavate in, occupy and use any and all Streets and Other Public Places described herein under the supervision of the properly constituted authority of the City for the purpose of bringing electrical energy into, within and through the Aspen Franchise Area and supplying electrical energy to the Residents thereof; subject, however, to the City's usual and customary permitting process for said construction activity. 3.3 Service to City Facilities. The City hereby grants to the Company the non-exclusive right, privilege, and authority to provide street and security lighting to the Aspen Franchise Area, and to serve all municipally owned or operated structures, plants, equipment, or City apparatus and facilities, including the right, privilege, and authority to furnish, sell, and distribute electrical energy necessary for such. Notwithstanding any provision to the contrary herein, the City reserves the right to provide electric service to the Castle Creek Water Plant from the proposed Castle Creek Hydro Plant, provided the Company shall not be required to wheel electricity from the Hydro Plant to the Water Plant. ARTICLE 4 SPECIFIC ELEMENTS OF GRANT 4.1 Recreational Areas. The Company shall not have the right to locate, build, or construct Facilities under, across, or through public parks or recreational areas located within the Aspen Franchise Area without prior written approval granted by the City Council. Said approval shall not be unreasonably withheld. '4.2 Trees and Shrubs. The Company shall have the right to control the growth of trees and shrubs as may be reasonably necessary to protect its Facilities. The Company may use machinery or other lawful methods to control such growth, but shall not use chemicals for such purpose. Annually, on a date mutually agreed to by both parties, representatives of each party shall meet and/or consult to discuss problems related to the means and methods of controlling such growth. Prior to cutting down or removing any tree, the Company shall consult with a representative of the City for the purpose of determining whether such cutting or removal is the only reasonable and cost effective means of protecting the Company's Facilities. 4.3Location of Coml~any's Facilities. Wherever reasonable and practicable, the Company will endeavor to install its Facilities within Public Easements. The Company shall locate its Facilities within the Aspen Franchise Area so as to cause minimum interference with the City's water mains, sewer mains, storm drains, and the proper use of streets, alleys, and other public ways and places and so as to cause minimum interference with the rights or reasonable convenience of property owners whose property adjoins any of the said streets, alleys or public ways and places. 4.4 Restoration of Public and Private Improvements. Should it become necessary for the Company, in exercising its rights and performing its duties hereunder, to interfere with any sidewalk, pavement, water main, sewer, storm drain, or any other public or private improvement, the Company shall at its own expense and in a workmanlike manner, rapair or cause to be repaired and restored to its original condition such sidewalk, groveled or paved street, road, alley, water main, sewer, storm draln~ or other public or private improvement after the installation of its Facilities, provided, however, that upon failure of the Company to do Such required rapairs within a reasonable time and in a workmanlike manner, the City may perform the required work and charge the Company for all masonable costs thereof. Nothing hereinabove shall be construed to obligate the Company to pay for the removal and relocation of its Facilities where such is at the request or demand of a person, or a public or private entity under cimumstances which require the party requesting or demanding such to pay for the mlocation under other provisions hereof, or under the provisions of the Company's Line Extension Policy or Underground Conversion Policy (See Article 12). 4.5 Use of Facilities. The Company shall have the right to make such use of its Facilities and other property, other than the uses contemplated in the Ordinance as it deems proper so long as such other use does not interfere with its ability to supply electrical energy. 4.6 Changed Conditions. If at any time it shall be necessary to change the position of any pole, conduit or service connection of the Company to permit the City to lay, make or change street grades, pavements, sewers, water mains, or other City works, such changes shall be made by the Company at its own expense, after reasonable notice from the City. 4.7 Coml~liance with City Requirements. The Company shall 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 thirty (30) days after issuance or request. 4.8 City Review of Construction and Design. Prior to construction of any significant Facilities within the Aspen Franchise Area, if requested by the City, the Company shall furnish to the City the plans for such proposed construction. 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. 4.9 Capital Improvement Projects. The Company and the City shall endeavor to inform one another of any capital improvement projects anticipated within the Aspen Franchise Area. The party proposing such capital improvements shall inform the other party of the nature of such improvements within a reasonable time after plans for such improvements have been substantially formulated. Each party shall cooperate in the timely exchange of all necessary information, design data; drawings, and reports to prope~y assess and evaluate the potential impacts of said improvements. 4.10 Maintenance of Facilities. The Company shall install, maintain, repair, replace, and upgrade its Facilities to ensure both the adequacy of, and quality of, electric service to the Aspen Franchise Area. All excavation and construction work done by or under the authority of the Company shall be done in a timely and expeditious manner which minimizes the inconvenience to the Residents. 4.11 City Not Required to Advance Funds. Upon receipt from the City of an authorization to proceed, and a promise to pay for construction, the Company shall extend its Facilities to the Aspen Franchise Area for municipal uses therein or for any municipal facility outside the municipal boundaries of the Aspen Franchise Area and within the Company's certificated service area, without requiring the City to advance funds prior to construction. 4.12 Scheduled Interruptions. The Company shall, when reasonable and practical, give notice, either oral or written, to the City and its affected Residents, of planned service intenuptions of significant duration. ARTICLE 5 RATES, REGULATIONS, UNIFORMITY OF SERVICE, AND UPGRADES 5.1 Fumishin~ Electrical Ener~,v. The Company shall furnish electrical energy within the Aspen Franchise Area to the Residents thereof at the applicable and effective rates and under the terms and conditions set forth in the Rate Schedules, Standards for Service, Rules and Regulations, and Service Connection and Extension Policies, adopted by and on file with the Company~ subject only to regulation thereof as is provided by law. The Company shall not, as to rates, charges, service, facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any resident, or subject any resident to any disadvantage or prejudice, provided that nothing in this grant shall be taken to prohibit the establishment from time to time of a graduated scale of charges and classified rate schedules to which any customer coming within an established classification would be entitled. 5.2 Facility Upgrades. The Company will, from time to time, during the term of this franchise make such improvements, enlargements and extensions of its Facilities incorporating, when reasonable and practical, technological advances within the industry as the business of the Company and the growth of the Aspen Franchise Area justify, in accordance with its Standards for Service, Rules and Regulations, and Service Connection and Extension Policies for electric service concurrently in effect and on file with the Company, subject only to regulations thereof as is provided by law. 5.3 Reliable Supply of Electricity. The Company shall take all reasonable and necessary steps to provide an adequate supply of electricity to its customers at the lowest reasonable cost consistent with long-term reliable supplies. If the supply of 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. 5.4 Chan~es in Rates and Service. The Company, from time to time, may promulgate such roles, regulations, terms and conditions governing the conduct of its business, including the use of electrical energy and payment therefor, and the interference with, or alteration of any of the Company's property upon the premises of its customers, as shall be necessary to ensure a continuous and uninterrupted service to each and all of its customers and the proper measurement thereof and payment therefor. 5.5 Maps and Regulations. The Company shall, submit copies of its Standards for Service, Service Connection and EXtension Policies, Rules and Regulations, and maps of its Facilities within the City boundaries to the City Clerk. All changes in such maps, Standards for Service, Rules and Regulations, and policies, shall be submitted to the City as the same may from time to time occur. 5.6 Subdivision Review. The Company shall analyze any subdivision plats or planned unit development plans submitted to it by the City and ~espond to any request by the City for information regarding the adequacy of its Facilities necessary to serve such proposed plat or plan and answer any other questions posed to the Company by the City regarding said plat or plan as are within the knowledge of the Company. The Company shall respond to said requests or questions within reasonable time limits set by the City' s Subdivision Regulations. 5.7 Compliance with Laws. The Company agrees to abide by all ordinances of the City, unless and except to the extent that this Franchise Ordinance shall relieve the Company of the obligation to comply with terms and conditions of such other ordinances or any other provisions thereof. The Company shall also comply with all County, State or Federal laws, rules and regulations, ordinances or resolutions related to the subject matter hereof. 8 ARTICLE 6 USE OF COMPANY FACILITIES 6.1 Use of Poles by City. The City shall have the right, without cost, to jointly use all poles and suitable overhead structures within the Aspen Franchise Area for the purpose of stringing wires thereon for any reasonable City authorized use; which use shall not include the distribution or transmission of electricity; provided, however, that the Company shall assume no liability, nor shall it be put to any additional expense, in connection therewith, and said use shall not interfere in any unreasonable manner with the Company's use of same, or the use thereof by the Company's permittees, licensees, or other then existing users of such Facilities. Use of Facilities hereunder by the City shall not apply to th~ City's licensees and assignees. The Company agrees to permit City licensees and franchisees, except those holding an electric utility franchise or license from the City, to use its Facilities upon reasonable terms and conditions to be contractually agreed upon with the Company, in writing. ARTICLE 7 INDEMNIFICATION AND POLICE POWER 7.1 City Held Harmless. The Company shall indemnify, defend and save the City, its officers and employees, harmless from and against all liability or damage and all claims or demands whatsoever in nature arising out of the operations of the Company within the Aspen Franchise Area pursuant to this franchise, and the securing of, and the exercise by the Company of, the franchise rights granted in this ordinance and shall pay all reasonable expenses arising therefrom. The City will provide prompt written notice to the Company of the pendency of any claim or action against the City arising out of the exercise by the Company of its franchise rights. The Company will be permitted, at its own expense, to appear and defend or to assist in defense of such claim. In the event a claim or claims for injury or damage is brought against the Company, and such shall include a claim of responsibility against the City, both paxties shall defend the respective claim or claims brought against each, and each shall be responsible for its own attomey's fees during the pendency and continuation of any such action or proceeding. At the conclusion of the litigation or proceeding, whether by settlement, dismissal, order of court or administrative agency, or otherwise, if a determination is made that the City is in no way responsible for the claim or claims, or that the Company is solely responsible, the Company shall promptly reimburse the City for its attorneys fees and costs incurred in defending such claim or claims. 7.2 Police Power Reserved. The right is hereby reserved to the City to adopt from time to time, in addition to the provisions herein contained, such Ordinances as may be deemed necessary in the exercise of its police power, provided that such regulations shall be reasonable and not destructive of the fights herein granted, and shall not be in conflict with the agreements herein made, and not in conflict with the laws of the State of Colorado, or with orders of other authorities having jurisdiction in the premises. ARTICLE 8 FRANCHISE FEE 8.1 Franchise Fee. As a further consideration for this franchise, and accepted by the City in lieu of all occupancy and license taxes and all other special taxes, assessments, fees, or excises upon the Facilities or other property of the Company, or other levies that might be imposed, either as a franchise tax, occupation tax, occupancy tax, or license tax, permit charge or fee, or contractor' s license fees for work contracted to be performed under contract with the Company, or for the inspection of Facilities, or other property, and charges which would otherwise be chargeable to the Company, or otherwise, the Company shall pay to the City a sum equal to three percent (3%) of its quarterly gross Revenues collected within the Aspen Franchise Area. Electric Revenues received from City facilities will not be assessed a 3% fee under this section nor will the City be paid/he 3% fee from such Revenues collected from City facilities. 8.2 Payment. Payment shall be made on or before thirty (30) days after the end of each quarter of each calendar year for the three (3) month period next previous, but shall be adjusted for the portions of the calendar quarters at the beginning and at the end of this franchise. All payments shall be made to the City Clerk. 8.3 Revenue Audit. For the purpose of ascertaining or auditing the qorrect amount to be paid under the provisions of this Article, the Company shall file with the City Clerk, or such other official as shall be designated by the City from time to time, a statement, in such reasonable form as the City may require, showing the total gross receipts received by the Company within the municipal boundaries of the Aspen Franchise Area within the preceding three (3) month period. The City Clerk or any official appointed by the Board shall have access to the books of said Company for the purpose of continuing the quarterly gross Revenues received from operations within the Aspen Franchise Area. 8.4 Correction of Underpayment/Overpayment. Should either the Company or the City discover either an underpayment or overpayment of the quarterly franchise fee, the party making such discovery shall inform the other party within a masonable time. If the error is substantiated as an underpayment, the Company shall make payment of the deficiency within thirty (30) days of the date the error was substantiated. If the error is substantiated as an overpayment, a credit equal to the overpayment will be applied to the next quarterly franchise payment due the City. 8.5 Occupancy Tax Alternative. In the event the said franchise fee levied herein should be declared invalid and/or shall be set aside by a Court of competent jurisdiction, then; and in such event, and in lieu thereof, the City may thereafter levy an occupancy 10 tax upon the Company, not to exceed in any one calendar year three percent (3%) of the gross Revenues collected within the Aspen Franchise Area for that calendar year. In the event the one percent (1%) community enhancement fee shall also be declared invalid and/or shall be set aside by a court of competent jurisdiction, then the occupancy tax levied upon the Company by the City shall be four percent (4%) instead of three percent (3%). Such occupancy tax shall be adjusted for any franchise fees or enhancement fees previously paid to the City in such calendar year. In the event the City shall enact such an occupancy tax, in lieu of the franchise fee and/or enhancement fee levied hereunder, all of the remaining terms, conditions and provisions of this Ordinance shall remain in full force and effect for the period stated herein. 8.6 Franchise Fee Payment in Lieu of Other Fees. As indicated in Section 8.1, above, the franchise fee paid 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 business. 8.7 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 publication of notices and ordinances and for photocopying of documents arising out of the negotiations or process of obtaining this franchise and the proportional share of the cost of an el~ection seeking the approval of a majority of the City electors voting thereon. ARTICLE 9 REPORTING AND CHANGE IN FRANCHISE FEE 9.1 Reports. The Company shall submit reasonable and necessary reports containing, or based upon, information readily obtainable from the Company' s books and records as the City may request with respect to the operations of the Company under this franchise, and shall, if requested, provide the City with a list of real property within the Aspen Franchise Area which is owned by the Company. 9.2 Chan~e of Franchise Fee. The Company shall, upon request from the City, notify the Council of any changes in the franchise fee percentage made in other municipalities served by the Company under a franchise within the State of Colorado. If the Council decides the franchise fee percentage charges hereunder shall be changed, it shall provide for such change by Ordinance; provided, however, that any change in the franchise fee shall then be surcharged by the Company to the Residents of the Aspen Franchise Area. 11 9.3 Copies of Tariffs. Upon request, the Company shall furnish the City with copies of any tariffs currently in use. ARTICLE 10 ADMINISTRATION 10.1 Duration of Franchise. This Ordinance shall be in full force and effect from and after its passage as by law required and the terms, conditions and covenants hereof shall remain in full fome and effect for a period of one (1) year from and after such enactment. This Ordinance shall automatically be renewed, without notice, for four (4) additional one (1) year terms; provided, however, that the City may give notice of termination of the Ordinance to the Company, in writing, by certified mail, roturn receipt requested, delivered to the Company at least six (6) months prior to any anniversary date of its commencement. 10.2 Amendments. At any time during the term of this franchise, the City through its Council, or the Company, may propose amendments to this franchise by giving thirty (30) days written notice to the other party of the proposed amendment(s) desired, and both parties thereafter, through their designated representatives, shall within a reasonable time, negotiate in good faith in an effort to agree upon a mutually satisfactory amendment(s). No amendment(s) to this franchise shall be effective until mutually agreed upon by the City and the Company and until all public notice requirements pursuant to Colorado statutes, and ordinance requirements of the City, have been met. This section shall not apply to franchise fee changes under Article 9. 10.3 Revocation of Privileges. This franchise Ordinance does not limit the eminent domain fights, powers, authority, or defenses of either party under the laws and Constitution of the State of Colorado. 10.4 Compliance Impaired. Both the Company and the City recognize them may be circumstances whereby compliance with the provisions of this franchise is impossible or is delayed because of circumstances beyond the Company's or City's control. In those instances, the Company or City shall use its best efforts to comply in a timely manner and to the extent possible. 10.5 Companv's Failure to Perform. It is agreed that in case of the failure of the Company to perform and carry out any of' the stipulations, terms, conditions, and agreements heroin set forth in any substantial particular, wherein such failure is within the Company's control and with respect to which redress is not otherwise heroin provided, the City, acting through its Council, may, after heating, determine such substantial failure; and, thereupon, after notice given the Company of such failure, the Company may have a reasonable time, not less than sixty (60) days and not to exceed six (6) months, in which to remedy the conditions respecting which such notice shall have been given. After the expiration of such time and the failure to correct such conditions, the Council shall determine whether any or all rights and privileges 12 granted the Company under this ordinance shall be forfeited and may declare this franchise null and void. 10.6 Ownership of Facilities. All Facilities used or placed by the Company within the municipal boundaries of the Aspen Franchise Area shall be and remain the property of the Company. 10.7 Transfer of Rights. The Company shall not transfer or assign any fights 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. 10.8 Removal of Facilities. Upon the expiration of this franchise, if thereafter the Company Facilities shall not be used for electric, telephone, or cable TV purposes for a period of twelve (12) successive months, and the City shall thereafter give written notice to the Company directing it to remove such Facilities, the Company shall forthwith remove the same no later than six (6) months after the date of such notice. Any Facilities, either underground or overhead, remaining after such time shall be deemed to have been abandoned. Any liability associated with Facilities abandoned by the Company and claimed by the City shall become the liability of the City. 10.9 Non-renewal of Franchise; Alternative Electric Service. If this franchise is not renewed, or if it is declared null and void, or the Company terminates any service provided for heroin for any reason, and the City has not provided for alternative electric service to the Residents of the Aspen Franchise Area, the Company shall not remove its Facilities and shall be obligated to continue electric service to the Residents until alternative' electric service is provided. The Company will not withhold any temporary services necessary to protect the public. ARTICLE 11 COMMUNITY ENHANCEMENT FUND 11.1 Purpose. The Company is committed to programs designed to make a difference in people's lives and the communities in which they reside. The Company will voluntarily make monetary resources available to the City for such programs and/or activities. Programs for which such funds shall be spent shall be limited to: (1) Beautification projects; (2) Energy conservation projects; (3)Equipment and technology upgrades for schools; (4) Scholarship funds; (5) Acquisition of open space and/or park land and development thereof; (6) Sponsorship of special community events; (7) Undergrounding of overhead electric and other utility lines. Funds made available under this Article may be spent for other purposes only with the express written consent of the Company. This program has been initiated solely by the Company; the City has not made the program a requirement for this franchise. 13 Funding for this program is not a cost of doing business but is a voluntary contribution by the Company. 11.2 Payments to the Fund. Within thirty (30) days after enactment of this Ordinance, the Company will establish an initial fund amount of $2,000.00. Whenever a full calendar year has transpired after the inception date of this franchise, the Company shall then pay to the City for the fund an amount equal to one pement (1%) of the gross Revenues collected within the Aspen Franchise Area for such calendar year plus any partial calendar year that transpired after the inception of the franchise ordinance. Thereafter, the Company shall make annual payments to the fund equal to one percent (1%) of its prior year's gross Revenues, or $2,000.00, whichever amount is greater. Said payments shall be made into the fund no later than February 15th of. the year subsequent to the calendar year in which the gross Revenues are received by the Company. 11.3 The Fund.' The Fund established by the Company shall be maintained in a bank account in the name of the City, but shall be maintained separately from all other funds and accounts held by the City. 11.4 Payments from the Fund. All payments from the fund shall be for projects described in Section 11.i hereof. Prior to any such expenditure, authorization to withdraw from the fund shall be given by resolution or ordinance duly enacted by the Council, and such resolution or ordinance shall clearly describe the nature and purpose of the project for which the expenditure is made. 11.5 Audits. The City may audit the Company's books related to gross Revenues collected within the Aspen Franchise Area at any reasonable time and with masonable prior notice. The Company may audit the fund account, expenditures from the fund, and resolutions and ordinances authorizing such expenditures at any reasonable time and with masonable prior notice. 11.6 Forfeiture of Enhancement Funds. The Company shall have the express right to temporarily suspend or terminate in full its annual contributions to the Enhancement Fund if it is determined that funds allocated and paid to the City are being, or have been, misappropriated, administered with bias or discrimination, or for other- inappropriate actions. ARTICLE 12 UNDERGROUNDING 12.1 At Consumer's Request. If a customer or consumer within the Aspen Franchise Area should request that new Facilities be installed underground, or for the conversion of existing overhead Facilities to underground Facilities, or if City ordinances or resolutions require a customer or customers to install Facilities underground, the Company shall proceed in accordance with its Line Extension 14 Policy, Advice Letter Number 8, dated July 30, 1976 (herein "Line Extension Policy") and in accordance with its Policy Statement, Conversion From Overhead to Underground Facilities, June 15, 1988 (herein "Underground Conversion Policy"), as each may from time to time be amended. 12.2 City Requested Under~roundin~. Except for the Company's contributions to the Community Enhancement Fund, which may be used by the City to pay for the undergrounding of the Company's Facilities, any request, requirement imposed by resolution or ordinance, or other communication from the City to the Company, asking, or requiring the Company to underground new Facilities or existing overhead Facilities, or move or remove existing underground Facilities, shall be responded to in accordance with the provisions of the Company's Line Extension Policy and Underground Conversion Policy. The City acknowledges receipt of a copy of both policies. No provision contained in this franchise Ordinance, or the Company's Line Extension Policy, or Underground Conversion Policy, shall relieve the Company of its obligations as prescribed by the laws of the State of Colorado relating to undergrounding of the Company' s overhead Facilities. ARTICLE 13 MISCELLANEOUS 13.1 Chan~es in Utility Regulation. The parties hereto acknowledge that regulatory and legislative changes in the electric utility, gas utility and other energy industries are currently being discussed nationwide and statewide; that some changes in utility industry sectors have already been implemented; and that other changes may be made in the future, during the term of this franchise. One likely scenario is the implementation of open access to electric customers, and other energy customers, making such customers available to all utilities, thus eliminating or limiting territorial protections. Under this scenario one utility may contract to sell a type of energy to a customer, while another utility transports ~he energy to the customer for a fee charged to the other utility or the customer. The parties agree, that insofar as future changes in the utility laws will allow, the company shall always retain the right to bill customers for utility transportation services and energy sales within the Aspen Franchise Area if it is the provider of either the energy product or the transportation of such product. The parties agree that this will provide the most efficient and convenient utility service to the Residents of the Aspen Franchise Area and provide assurance to the City of franchise fee collection for each component charged for the sale and delivery of energy products within the Aspen Franchise Area. 13.2 Successors and Assigns. The fights, privileges, franchises and obligations granted and contained in this Ordinance shall inure to the benefit of and be binding upon Holy Cross Electric Association, Inc., its successors and assigns. 15 13.3 Representatives. Both parties shall designate from time to time in writing representatives to act as franchise agents for the Company and the City. Such 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 mall 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. Until any such change shall hereafter be made, notices shall be sent to the City's Mayor and to the Company's General Manager. Currently the addresses for each are as follows: For the City: City Manager 130 S. Galena St. Aspen, Colorado 81611 FOr the Company: Mr. Kent Benham Holy Cross Electric Association, Inc. P O Drawer 2150 Glenwood Springs, CO 81602 13.4 Entire Agreement. This franchise constitutes the entire agreement of the parties. There have been no representations made other than those contained in this franchise. ARTICLE 14 APPROVAL 14.1 City Approval. This grant of franchise shall not become effective until approved by the City in accordance with its ordinances and the statutes of the State of Colorado. 14.2 Company Approval. The Company shall file with the City Clerk its written acceptance of this franchise and of all its terms and provisions within fifteen (15) days after the final adoption of this franchise by the City. The acceptance shall be in the form and content approved by the City Attorney. If the Company shall fall to timely file its written acceptance as herein provided, this franchise shall become null and void. Section 2. That if any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. 16 A public hearing on the ordinance shall be held on the/! day of/~22~; 1998, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City CoUncil of the City of Aspen on the ,~4~Z: day of ~ ~ , 1998. -A~TT-ES.T: Ka~ S~ K2~lerk ' ' · ~AI l X adopted, p~sed ~d approved ~is/[ day of ~~ ,1998. John S .~, M~~ ATTEST: C~ , C~W er ~W-05/08/98-G:Xjo~XwordXordS~c-fr$4.doe 17