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HomeMy WebLinkAboutordinance.council.024-12 ORDINANCE NO. Series of 2012 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, GRANTING A NON-EXCLUSIVE FRANCHISE TO SOURCEGAS DISTRIBUTION LLC, ITS SUCCESSORS AND ASSIGNS, TO LOCATE, BUILD, CONSTRUCT, ACQUIRE, PURCHASE, EXTEND, MAINTAIN AND OPERATE INTO, WITHIN AND THROUGH THE PRESENT AND FUTURE CORPORATE LIMITS OF THE CITY OF ASPEN, PITKIN COUNTY, COLORADO, A GAS SYSTEM AND WORKS FOR THE PURCHASE, PROCESSING, TRANSMISSION AND DISTRIBUTION OF GAS, EITHER NATURAL, ARTIFICIAL OR MIXED, AND TO FURNISH, SELL AND DISTRIBUTE SAID GAS TO THE CITY OF ASPEN AND THE INHABITANTS THEREOF, FOR HEATING, COOKING OR OTHER PURPOSES, BY MEANS OF PIPES, MAINS, CONDUITS, SERVICES OR OTHERWISE, OVER, UNDER, ALONG, ACROSS AND THROUGH ANY AND ALL STREETS, OTHER PUBLIC WAYS AND PLACES IN SAID CITY OF ASPEN, FIXING THE TERMS AND CONDITIONS THEREOF AND REPEALING ORDINANCE NO. 14, SERIES OF 1986. WHEREAS, the City staff and SourceGas Distribution LLC 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, AS FOLLOWS: SECTION 1. SHORT TITLE. This Ordinance shall be known and may be cited as the SourceGas Distribution LLC Franchise Ordinance. SECTION 2. DEFINITIONS. For the purpose of this Ordinance, the following terms shall have the meaning given herein: "City" is the City of Aspen, Pitkin County, Colorado, the grantor of rights under this franchise. "Grantee" is SourceGas Distribution LLC, its successors and assigns, the grantee of rights under this franchise. "Council" is the City Council of the City of Aspen, Colorado. 1 "Person" is any person, firm, partnership, association, corporation, company or organization of any kind. SECTION 3. GRANT OF AUTHORITY. A. There is hereby granted to the Grantee the right, privilege and authority to locate, build, construct, acquire, purchase, extend, maintain and operate into, within and through said City as the same now exists or may hereafter be extended, a gas system and works, for the purchase, processing, transmission and distribution of gas, either natural, artificial or mixed, and, for the period and upon the terms and conditions hereinafter specified, to furnish, sell and distribute said gas to the City and the inhabitants thereof, for heating, cooking or other purposes, by means of pipes, mains, conduits, services or otherwise, over, under, along, across and through any and all streets, alleys, viaducts, bridges, roads, lanes and gas easements in said City and over, under, along, across and through any extension, connection with or continuation of the same and/or over, under, along, across and through any and all such new streets, alleys, viaducts, bridges, roads, lanes and gas easements as may be hereafter laid out, opened, located or constructed within the territory now or hereafter included in the boundaries of said City. B. This franchise and the right to use and occupy said streets, alleys, public ways and places shall not be exclusive, and the City reserves the right to grant the use of said streets, alleys, public ways and places, to any person during the period of this franchise. C. This franchise constitutes a valid and binding contract between the Grantee and the City. The City has exercised its proprietary authority in granting this franchise. In the event that a franchise fee specified herein is declared illegal, unconstitutional, or unenforceable by any court of competent jurisdiction, the Grantee agrees to cooperate with the City in modifying the franchise to assure that the Grantee collects and the City receives an amount in franchise fees or some other form that is the same amount of franchise fees collected by the Grantee and paid to the City as of the date of such declaration, to the extent permitted by law. SECTION 4. GENERAL CONDITIONS. The Grantee is further granted the right, privilege and authority to excavate in, occupy and use any and all streets, alleys, viaducts, bridges, roads, lanes, and other public ways and places under the supervision of the properly constituted authority for the purpose of bringing gas into, within and through the City, and supplying gas to said City and the inhabitants thereof and in the territory adjacent thereto, provided however, that the Grantee shall so locate its works, transmission and distribution structures, equipment, mains, pipes, conduits, services or other appurtenances within said City in a manner to meet with the approval of the City and further in locating said facilities shall do so in such manner as to cause minimum interference with the proper use of streets, alleys and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners whose property adjoins any of the said streets, alleys, or other public ways and places. Should it become necessary for the Grantee, in exercising its rights and performing its duties hereunder,to interfere with any sidewalk, graveled or paved streets, roads or alleys, or any other public or private improvement, the Grantee shall repair at its own expense in a workmanlike manner subject to the approval by the City and in accordance with the 2 provisions of the City Municipal Code, such sidewalk, graveled or paved street, road, alley, or other improvement after the installation of its pipes or other structures. The Grantee shall use due care not to interfere with or damage any water mains, sewers, or other structures now in place or which may hereafter be placed in said streets, alleys, or other public places, and said Grantee shall, at its own expense, repair in a workmanlike manner subject to the approval of the City and in accordance with the provisions of the City Municipal Code, any such water mains, sewers, or other structures which are damaged through the action of Grantee, provided, however, that the City may make such repairs and charge the reasonable cost thereof to the Grantee. SECTION 5. INDEMNIFICATION, INSURANCE and BONDS or OTHER SURETY. A. General Indemnification. The Grantee agrees to indemnify, save and hold harmless, and defend the City, its officers, elected or appointed officials, employees, agents, boards and employees, from any action or claim, including third party claims, for injury, damage, loss, liability, cost or expense, including administrative hearing, court and appeal costs and attorneys' and expert witness fees and expenses, arising from any casualty, accident, injury or loss to person or property, including, without limitation, copyright infringement and defamation, and all other damages in any way arising out of, or by reason of, any construction, excavation, operation, maintenance, or reconstruction of the Grantee within the City and the securing of and exercise by the Grantee of the rights granted in this franchise, or any act done under or in connection with this franchise by or for the Grantee, its agents, or its employees by reason of any negligence or other fault of the Grantee. B. Additional Circumstances. The Grantee shall also indemnify, defend and hold the City harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and attorneys' and expert witness fees or expenses in any way arising out of- (i) The action of the City in granting this franchise; (ii) Damages arising out of any failure by the Grantee to secure consents from the owners, authorized distributors or licensees, licensors of programs to be delivered by Grantee, whether or not any act or omission complained of is authorized, allowed or prohibited by this franchise. C. Procedures and Defense. The City may participate in the defense of a claim. The Grantee may settle any claims affecting the City without the City's approval, or the Grantee may relieve itself of all duty to defend and indemnify the City by paying to the City that sum which the claimant has offered to accept and which the Grantee would have paid but for the City's objection, but in any such case, only if such settlement or payment would fully discharge and satisfy all claims against the City arising from or related to such claim. 3 D. Non-Waiver. The fact that the Grantee carries out any activities under this franchise through independent contractors shall not constitute an avoidance of or defense to the Grantee's duty to defend and indemnify under this section. E. Notice to Grantee. The City shall provide prompt written notice to the Grantee of the pendency of any claim or action against the City arising out of the exercise by the Grantee of its franchise rights. The Grantee shall be permitted, at its own expense, to appear and defend or to assist in defense of such claim. F. The obligations under Paragraphs 5A-D shall not extend to any injury, loss or damages to the extent it is caused by the act, omission, error, professional error, mistake, negligence, or other fault of the City, elected or appointed officials, its officers, agents, boards or its employees. G. Insurance. The Grantee shall maintain in full force and effect, at its own cost and expense, during the term of this franchise, Comprehensive General Liability Insurance in the amount of not less than $1,000,000 combined single limit for bodily injury, and property damage for the City, its officers, employees and insurers. The insurance shall provide coverage at all times for not less than the amounts set forth at Section 24-10-114, C.R.S., as limitations on judgments, as amended from time to time. Said insurance shall designate the City as an additional insured and loss payee, as applicable. Such insurance shall be non-cancellable except upon thirty (30) days' notice to the City. Grantee, upon request, shall furnish a certificate of insurance to the City for said insurance. Grantee shall procure and maintain the minimum insurance coverages identified or referenced above. The insurance limits hereunder shall be revised upward in the event the statutory maximums applicable to local governments in Colorado, as provided in the Governmental Immunity Act, are raised during the term of this franchise, upon sixty (60) days advance written notice to the Grantee by the City. The Grantee shall have had notice of the pendency of any action against the City arising out of such exercise by the Grantee of said rights and privileges and be permitted at its own expense to appear and defend or assist in the defense of the same. H. Bonds or Other Surety. Except as expressly provided herein, the Grantee shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the franchise or continuing its existence. The City acknowledges that the legal, financial, and technical qualifications of the Grantee are currently sufficient to afford compliance with the terms of the franchise and the enforcement thereof. The Grantee and the City recognize that the costs associated with bonds and other surety may ultimately be borne by Grantee's customers in the form of increased rates. In order to minimize such costs, the City agrees to require bonds and other surety in accordance with the provisions of the City Municipal Code and only in such amounts and during such times as there is a reasonably demonstrated need therefore. Initially, no bond or other surety will be required. In the event that one is required in the future, the City agrees to give the Grantee at least sixty (60) days prior written notice thereof stating the reason for the requirement. Such reason must demonstrate a change in technical, legal or financial qualifications which would materially prohibit or impair Grantee's ability to comply with the terms of the franchise or afford compliance therewith, or may be based upon the Grantee's 4 demonstrated failure to comply with the terms of this franchise in a timely manner or in a manner that poses a substantial risk to the health, safety and welfare of the City's inhabitants. I. Grantee hereby waives any claim for damages to its property within streets, alleys and gas easements against the City, its officers and employees, except for damages caused by the negligence, recklessness, or the specific intent of the City, elected or appointed officials, its officers, agents, boards or its employees. SECTION 6. RELOCATION OF FACILITIES. A. The City may undertake City projects including, but not limited to,the change of grade, new construction, installation or repair of sewers, storm sewers, drainages, waterlines, power lines or any government-owned communication system, public work or improvement, or any government-owned utility or public right-of-way vacation. City projects, by definition, are not emergency situations. If at any time it shall be necessary for Grantee to change the position of any gas main or service connection to permit the City to undertake such a City project or as a result of an emergency situation, the Grantee shall do so at its own expense. During the preliminary stages of planning and engineering of any City project which may require the Grantee to relocate its facilities and at any time at which the City determines that it may materially modify such City project, the City shall provide notice to Grantee of such City project or material modification of such City project and offer to meet and confer with Grantee on date(s) and at time(s) and location(s) that are mutually acceptable to the City and Grantee. The purpose of such meeting(s) is to seek Grantee's input and explore means of reducing the costs to the Grantee and to provide the City with a timetable within which the involved Grantee facilities will be relocated, including anticipated start date, so as to facilitate coordination with the timetable to be established by the City for completion of the City project. The City shall make reasonable efforts to mitigate the financial impact of any such project on the Grantee. If the City does not meet and confer with the Grantee prior to finalizing the planning and engineering and any subsequent material modification of any City project which may require the Grantee to relocate its facilities, the City shall pay the Grantee relocation and restoration expenses incremental to the expenses that Grantee would have incurred if the City had met and conferred with the Grantee in such manner. The City will not be required to pay relocation or restoration costs in those circumstances in which the City could not have reasonably known that there would be a potential impact to Grantee facilities. B. If the City and the Grantee meet and confer and agree on a facilities relocation plan, the Grantee shall complete such relocations by the deadline agreed upon in the facilities relocation plan; except that the Grantee may be granted an extension of time for completion equivalent to any delay caused by conditions not under its control. However, if the City and the Grantee meet and confer but do not agree on a facilities relocation plan, the Grantee may request a review by the Aspen City Manager. Upon review, the decision by the Aspen City Manager shall be final and subject to judicial review, and Grantee shall fully comply with the conditions set forth in the final facilities relocation plan absent judicial review. 5 C. Following relocation conducted at Grantee's expense, all property identified in the facilities relocation plan shall be restored by the Grantee to substantially its former condition, in accordance with the then existing City municipal ordinances, laws, and regulations. Such restoration work shall be performed at the Grantee's expense, except as otherwise provided in paragraph 6A. D. Relocation of underground facilities shall be undergrounded in similar fashion and in accordance with the provisions of the City Municipal Code, unless otherwise agreed to by the City and the Grantee in a facilities relocation plan. Relocated above ground facilities shall be above ground in similar fashion and in accordance with the provisions of the City Municipal Code, unless otherwise agreed to by the City and the Grantee in a facilities relocation plan. E. There is no requirement that the City intervene in proceedings before the Public Utilities Commission of the State of Colorado ("PUC") in which the Grantee requests recovery of costs that the Grantee has incurred in complying herewith. If the City is considering whether to intervene in any such proceeding, it first shall meet and discuss its interests with the Grantee prior to filing any request to intervene. SECTION 7. SERVICE STANDARDS. A. Reliability. 1. The Grantee shall maintain and operate its structures, apparatus, mains, pipe and other equipment and render efficient service in accordance with the rules and regulations of the PUC and the terms and conditions of City codes and State Statutes as revised from time to time. 2. Grantee shall provide to the City telephone numbers and e-mail addresses of the Grantee's management personnel responsible for utility service in the City and shall, upon request, provide the City with status reports on a twenty-four hour basis concerning interruptions of the supply of utility service in any portion of the City. B. Inspections and As-Built of Work. 1. Work performed by Grantee may be subject to municipal ordinances requiring inspections of work to ensure that the work has been performed in accordance with the requirements of the laws, ordinances, and regulations of the City. Such inspection may include, but not be limited to, the following matters: location of facilities in streets; cutting and trimming of trees and shrubs; disturbance of pavements, sidewalks, and surfaces of streets. Grantee shall promptly perform reasonable remedial action required by the City pursuant to said inspections. 2. It shall be a condition of the City's approval that, for any major facility installed, renovated, or replaced after the effective date of this franchise, Grantee shall provide 6 the City with as-built drawings of each such facility in such formats and providing such details as reasonably requested by the City. C. Maps. Grantee shall prepare and submit to the City a map showing the location of its distribution system, showing location and size, as applicable, of lines, valves, gates and all appurtenances incident to the distribution system, so far as the location of such facilities can reasonably be projected. The map shall be kept current and filed with the City Clerk's office by May 1 of each year. D. Installation, Extension,Relocation, or Modification of Grantee Facilities. Before commencement of the installation, extension, relocation or modification of Grantee facilities in City streets and alleys, the Grantee shall prepare and submit to the City for review and approval by the Aspen City Manager or designee a map showing the location and size, as applicable, of lines, valves, gates and all appurtenances incident to the distribution system, so far as the location of such facilities can reasonably be projected, as well as show the location of other pertinent facilities and surface features as deemed necessary by the Aspen City Manager to evaluate such plan. The Aspen City Manager may require Grantee to pothole location of identified facilities to confirm depth, clearance, or other information in the due course of review prior to approval. In addition, the Grantee shall submit a construction plan indicating a construction schedule, showing the streets and alleys where excavations will be simultaneously open at any given time, making provision for traffic routing in the event of interruption, setting forth the places where pavement cuts are expected, and where underground boring will occur for pipe installation. Construction may then proceed upon timely review and approval of said map and plan by the Aspen City Manager. E. Access to Premises. To the extent allowed by law, Grantee shall have the right to enter the premises of its customers at reasonable times for the purpose of reading meters, inspecting gas appliances, pipes and equipment and for the purpose of ascertaining loads, making necessary tests and installing, disconnecting or removing meters. F. Permits. Grantee shall be responsible for obtaining all applicable permits, including any excavation or tree cut permits, in the manner required by the laws, ordinances, and regulations of the City, except as expressly stated in Section 9 of this Ordinance. G. Extensions of Service. 7 Grantee shall make such reasonable extensions of its mains from time to time as may be required to furnish service within the City to consumer(s) making application therefor; but Grantee shall not be required to make any extension for the purpose of serving any consumer(s) if Grantee is, for any reason, unable to obtain an adequate supply of gas to warrant the construction of said extension or if such extension would be inconsistent with its tariff approved by the PUC. Service to such consumer(s) shall be in accordance with the terms of this franchise, including payment of franchise fees. SECTION 8. SUPPLY OF GAS. If during the term of this franchise, there occurs a failure or partial failure of the supply of natural gas available to the Grantee because of depletion of such supply, the Grantee shall take all reasonable steps to obtain an additional natural gas supply from other sources to be delivered to the Grantee, and if unable to procure same, it is hereby authorized to supply artificial or mixed gas for the unexpired term of this franchise. If Grantee, within a reasonable period after failure of the supply of natural gas, shall fail to supply to its customers artificial and/or mixed gas, the franchise rights granted herein shall terminate. SECTION 9. FRANCHISE FEES. In consideration of the rights and privileges herein granted, the Grantee shall assess, effective the first billing cycle after this franchise becomes effective, to residential and commercial customers of Grantee within the City of Aspen, Colorado, a franchise fee or fee equivalent to 2 percent(%) of annual gross revenue derived from gas sales service within the corporate limits of the City that is billed by the Grantee, including the revenue received from the sale of industrial gas, and a franchise fee equivalent to $0.0174 per therm for gas transportation service within the corporate limits of the City that is billed by the Grantee, and excluding the amount received from the City itself for gas service furnished it and after adjustment for the net write-off of uncollectable amounts and corrections of bills theretofore rendered. Payments to the City shall be made quarterly within 60 days of each calendar quarter and each such payment shall be accompanied by a statement supporting the payment. The City may on each five (5) year anniversary of this franchise request review and adjustment of the franchise fees consistent with the amounts charged to other utilities that have a franchise with the City or with the amounts charged to Grantee by other Colorado municipalities with which Grantee has a franchise. The City must provide 60 days' written notice to the Grantee prior to any such anniversary of such request for review and adjustment. If 60-days' written notice is not provided by the City to Grantee, the franchise fees in effect shall continue. Such payment shall be in lieu of any and all other fees, charges, licenses, taxes or assessments which said City may impose for the rights and privileges herein granted or for the privilege of doing business within said City and, for the use of the rights of way, and in the event any such fee, charge, license, tax or assessment shall be imposed by said City, the payment to be made in accordance with the provisions of this section shall be refunded in an amount equal to the annual burden of such fee, charge, license tax or assessment imposed upon the Grantee. Ad Valorem property taxes imposed generally upon all real and personal property within said City shall not be deemed to affect the obligation of the Grantee under this section. If at any time during the term of this franchise the manner in which a franchise fee specified herein is calculated, collected or paid is changed, whether by action of the Grantee, the 8 PUC, or any entity having jurisdiction thereof, the Grantee agrees to cooperate with the City in modifying the franchise to assure that the Grantee collects and the City receives an amount in franchise fees or some other form that is the same amount of franchise fees collected by the Grantee and paid to the City as of the date of such change and required modification, to the extent permitted by law. SECTION 10. PURCHASE OF SYSTEM. The City's rights and privilege of purchasing or condemning the Grantee's system subject to this franchise shall be governed by the laws of the State of Colorado. SECTION 11. TERM. This franchise and the rights, privileges, and franchises hereby granted shall be and remain in full force and effect for a period of twenty (20) years from the effective date of this franchise as set forth below. SECTION 12. TERMINATION OF FRANCHISE. Upon the termination of this franchise if the Grantee shall not have acquired an extension or renewal thereof and accepted same, Grantee may have and is hereby granted the right to enter upon the streets, alleys, bridges, viaducts, roads, lanes and other public places of the City, for the purpose of removing there from any or all of its plants, structures, pipes, mains or equipment pertaining thereto, at any time after the City has had ample time and opportunity to purchase, condemn or replace them. In so removing said pipes, mains or other property, the Grantee shall, at its own expense and in a workmanlike manner, refill any excavations that shall be made by it in the graveled or paved streets, alleys, bridges, viaducts, roads, lanes and other public places after the removal of its mains, pipes or other structures, and repair all surfaces to the condition prior to such removal. SECTION 13. ASSIGNMENT. The Grantee may assign this franchise, or the rights granted hereunder by providing prior written notice to the City Manager, but without first obtaining the written consent of the City, except in the circumstance the Grantee offers to sell or enters into a contract to sell only the system subject to this franchise. The City's consent to such an assignment shall not be unreasonably withheld, and this section shall not be construed to restrict or prevent the issuance of bonds, debentures, or other evidence of indebtedness, needed or useful for the purpose of financing the system or any portion thereof. SECTION 14. FORFEITURE. The City reserves the right to declare a forfeiture of this franchise for the breach of a substantial and material provision thereof. In the event that the City believes that the Grantee has not complied with any term of the franchise, it shall notify the Grantee in writing in reasonable detail of the nature of the alleged noncompliance. No forfeiture shall be declared until the Grantee shall have had an opportunity to be heard and to correct the alleged breach. Upon failure of the Grantee to exercise reasonable diligence to correct such condition, or to demonstrate that remedying the breach is legally proscribed,the City may take action to correct such condition, the cost of which the Grantee shall promptly reimburse, or may declare this franchise forfeited and notify Grantee in writing. In the event that this franchise is forfeited, then the Grantee agrees to continue to render service as theretofore until the City makes alternative arrangements 9 for such service. In addition to the remedies set forth above in this section, if the City prevails in any judicial action to enforce any of the terms or conditions of this franchise, the City shall be entitled to recover all of its costs and expenses, including reasonable attorney's fees, incurred in such action; provided, however, if the City does not prevail in any such judicial action, the Grantee shall be entitled to recover from the City all of the Grantee's costs and expenses, including reasonable attorney's fees, incurred in such action. SECTION 15. ORDINANCE REPEALED. Ordinance No. 14, Series of 1986, passed under date of April 28, 1986, is hereby repealed and of no further force or effect. SECTION 16. RESERVED RIGHTS. The right is hereby reserved by 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 rights and benefits herein granted, and not in conflict with the laws of the State of Colorado, or with orders of other authorities having jurisdiction in the premises, except, if applicable, as permitted in the exercise of the City's home rule powers granted by Article XX of the Colorado Constitution. The Grantee shall comply with the requirements of all municipal building and zoning codes, and requirements regarding curb and pavement cuts, excavating, digging, and other construction activities, except as expressly stated in Section 9 of this Ordinance. This franchise shall be subject to all valid and effective provisions of the City Charter whether enumerated herein or not. SECTION 17. MISCELLANEOUS PROVISIONS. A. No Waiver of GIA. Nothing herein shall be in any way construed as a waiver on behalf of the City of any of the protections or provisions of the Colorado Governmental Immunity Act. B. Consent Not Unreasonably Withheld. In any action by the City or authorized representative thereof mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld. C. Captions. The captions to Sections contained herein are intended solely to facilitate the reading hereof. Such captions shall not affect the meaning or interpretation of the text herein. D. Continuiniz Jurisdiction. This franchise and the ordinance approving the same and the respective rights and obligations of the parties hereunder are subject to all present and future valid governmental legislation or regulation, whether federal or state, of duly constituted authorities which have jurisdiction over this franchise, one or both of the parties, or any transaction hereunder. E. Venue. Venue for all judicial actions shall be in Pitkin County, Colorado. 10 F. No Waiver. Neither the City nor Grantee shall be excused from complying with any of the terms and conditions of this franchise by any failure of the other, or any of its officers, employees, or agents, upon one or more occasions, to insist upon or to seek compliance with any terms and conditions. G. Representatives. Both parties shall designate from time to time in writing representatives for the Grantee and the City who will be persons to whom notices shall be sent regarding any action to be taken under this franchise. Notices shall be in writing and forwarded by certified mail or hand delivered to the person and address stated, unless the person and address are changed at the written request of either party, delivered in person or by certified mail. Until such change shall hereafter be made, notices shall be sent as follows: To the City: The City of Aspen City Manager 130 S. Galena Street Aspen, CO 81611 To the Grantee: Manager—Division Operations 0096 County Rd 160 Glenwood Springs, CO 81601 H. Severability. Should any one or more provisions of this franchise be held to be illegal or unenforceable by any court of competent jurisdiction, such holding shall not affect the validity of all other provisions; provided, however, the parties shall forthwith enter into good faith negotiations and proceed with due diligence to draft a substitute term for each such provision held to be illegal or unenforceable that will achieve the original intent of the parties hereunder. I. Payment of Expenses Incurred by City in relation to Voter Approval Election of this Franchise Agreement. At the City's option, Grantee shall pay in advance or reimburse the City for expenses incurred in voter approval election, publication of notices, publication of ordinances, photocopying of documents, and staff and consulting expenses arising for the negotiations, voter approval and implementation of this franchise agreement. SECTION 18. EFFECTIVE DATE. This franchise shall become effective and be in full force and effect from and after final passage of the ordinance approving the same by the Aspen City Council, the ordinance's publication as by law required, upon written acceptance and ratification by Grantee and voter approval as set forth herein below. SECTION 19. APPROVALS. 11 A. City Approval. This grant of franchise shall not become effective unless approved by a majority of the electors of the City of Aspen voting thereon in accordance with Section 11.4 of the City of Aspen Home Rule Charter. B. Grantee Approval. Grantee shall file with the City Clerk of the City of Aspen its written support of this franchise and all of its terms and conditions prior to public hearings set for consideration of the franchise by the City of Aspen City Council. Within sixty (60) days of the approval of the ordinance by the Aspen City Council, Grantee shall file a written acceptance and ratification of the franchise with the City Clerk. The acceptance and ratification shall, in the form and content, be approved by the City Attorney. This franchise shall not become effective for any purpose until written acceptance and ratification has been filed. INTRODUCED AND ORDERED PUBLISHED on first reading this.4kt day of nI2012. 4W 4*110' Michael C. Ireland, Mayor ATT ST: City Clerk PASSED, ADOPTED AND APPROVED on second and final reading this day of 2012. Michael C. Irel4WA V ATT ST: �� ms' s 40,JL City Clerk 12 ACCEPTED AND EXECUTED by SourceGas Distribution LLC this day of 2012. SOURCE AS DISTRIBUTION LLC Title: ATATE : � Secretary 13 CERTIFICATE State of Colorado ) City of Aspen ) ss County of Pitkin ) A City Clerk of the City of Aspen, Colo ado do hereby certify that t e foregoin is a full, true and correct copy of Ordinance No. of said City, granting a franchise by tie City of Aspen, Colorado, to SourceGas Distribution LLC, duly passed and published in the manner provided by law. IN WITNESS WHEREOF, I bave hereunto s scribed y name and affixed the seal of the City of Aspen, Colorado, this day of ' , 2012. XCity Clerk (SEAL) 14 SourceGas Distribution LLC �� 600 Suite!92 1i Street Source Gas uitF!300 Golden,CO 80401 1 800 563 0012 303 243 3400 303 243 3603 Fax www.SourceGas.corn October 16, 2012 Mr. Steve Barwick, City Manager City of Aspen City Hall 130 S. Galena St Aspen, CO 81611 Re: Letter Agreement- SourceGas Distribution LLC and the City of Aspen Dear Mr. Barwick: This Letter Agreement memorializes the following two items agreed by and between SourceGas Distribution LLC and the City of Aspen (respectively, "SourceGas"and the"City"; collectively,the"Parties"). Data Reporting for City Climate Action Program and Greenhouse Gas Inventory The Parties agree that SourceGas will provide,via email or password-protected website, all monthly natural gas usage data by account number for all City-owned or leased facilities and buildings. SourceGas will provide such data to a designated City staff member in a Microsoft Excel file on a quarterly basis such that each year, October-December data are made available in January, January-March. data are made available in April,April-June data are made available in July, and July-September data are made available in October. Each spreadsheet provided to the designated City staff member by SourceGas will include month, City account number, account description,facility or building name and address, and natural gas usage in therms. Additionally, SourceGas will provide each October the altitude-appropriate carbon factor used to calculate CO2 equivalent for natural gas emissions in the prior twelve-month period. Energy Efficiency/Conservation/Demand Side Management Program The City recognizes the need to conserve energy resources and engages in and offers demand side management programs and projects to its persons. Pursuant to the Public Utilities Law of the State of Colorado, C.R.S. § 40-3.2-103, and the Rules Regulating Gas Utilities and Pipeline Operators of the Public Utilities Commission of the State of Colorado ("PUC"), 4 Code of Colorado Regulations (CCR)723-4, SourceGas is operating under its PUC-approved Demand Side Management Plan applicable to all SourceGas customers in Colorado (the"Plan"). SourceGas agrees to continue to work cooperatively with the City as to SourceGas's operation of the Plan in the City. To signify your agreement to and acceptance of this Letter Agreement,please sign and date below. ely, Douglas D. Whitefoot Senior Vice President, ations Mr. S eve Barwick, City Manager Dated () 12- LEGAL NOTICE Ad Name: 8408579A ORDINANCE#24,2012 PUBLIC HEARING Ordinance#24,Series of 2012,was adopted on Customer: Aspen (LEGALS) City of first reading at the City Council meeting Septem- ber 24,2012. This ordinance,if adopted,will ap- Your account number: 1013028 prove grant a twenty year non-exclusive franchise to SourceGas,if approved by the electorate in No- vember 2012. The public hearing on this ordi- nance is scheduled for October 9,2012 at 5 PM, City hall,130 South Galena. PROOF OF PUBLICATION To see the entire text,go to the city's legal notice website httoWwww.aspenpitkin.com/Departments/C/e rk/ Legal-Notices/ If you would like a copy FAXed or e-mailed to you, call the city clerk's office,429-2686. Published in the Aspen Times Weekly on Septem- ber 27,2012. [8408579] STATE OF COLORADO, COUNTY OF PITKIN I,Jim Morgan, do solemnly swear that I am General Manager of the ASPEN TIMES WEEKLY, that the same weekly newspaper printed, in whole or in part and published in the County of Pitkin, State of Colorado,and has a general circulation therein;that said newspaper has been published continuously and uninterruptedly in said County of Pitkin for a period of more than fifty-two consecutive weeks next prior to the first publication of the annexed legal notice or advertisement. The Aspen Times is an accepted legal advertising medium, only for jurisdictions operating under Colorado's Home Rule provision. That the annexed legal notice or advertisement was published in the regular and entire issue of every number of said daily newspaper for the period of 1 consecutive insertions;and that the first publication / of said notice was in the issue of said newspaper dated 9/27/2012 and that the last publication of said notice was in the issue of said newspaper dated 9/27/2012. In witness whereof,I have here unto set my hand this 10/01/2012. Jim Morgan,General Manager Subscribed and sworn to before me,a notary public in and for the County of Garfield,State of Colorado this 10/01/2012. Mary E.Borkenhagen,Notary Public Commission expires:September 12,2015 60R/C, P Z- = 9•. DBLIC ? m "",Exu#ay 0g.1 t r Decision No. C13-0090 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO DOCKET NO. 12A-1283FG IN THE MATTER OF THE APPLICATION OF SOURCEGAS DISTRIBUTION LLC FOR AN ORDER GRANTING A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY TO EXERCISE FRANCHISE RIGHTS IN THE CITY OF ASPEN, COLORADO. ORDER DEEMING APPLICATION COMPLETE AND GRANTING THE APPLICATION Mailed Date: February 4, 2013 Adopted Date: January 30, 2013 I. BY THE COMMISSION A. Statement 1. This matter comes before the Commission for consideration of an application filed by SourceGas Distribution LLC (SourceGas Distribution or Company) on December 18, 2012, for a Certificate of Public Convenience and Necessity (CPCN) to exercise franchise rights in the City of Aspen, in Pitkin County, Colorado (Aspen or the City). 2. The Commission provided notice of this application on December 20, 2012 to all interested persons, firms, and corporations. SourceGas Distribution noticed this application by publication in the Aspen Times Weekly, a newspaper circulated within all areas that would be impacted by the application, on January 3, 2013. No petition to intervene or notice of intervention has been filed and thus the application is uncontested. Accordingly, the application will be determined without a formal hearing in accordance with § 40-6-109(5), C.R.S., and Rule 1403 of the Rules of Practice and Procedure, 4 Code of Colorado Regulations (CCR) 723-1. Before the Public Utilities Commission of the State of Colorado Decision No. C13-0090 DOCKET NO. 12A-1283FG B. Finding and Conclusions 3. SourceGas Distribution is engaged in, inter alia, the generation, transmission, purchase, distribution, and sale of natural gas service in its certificated areas in the State of Colorado. Aspen is located within one such certificated area. 4. SourceGas Distribution requests the Commission issue an Order granting it a CPCN to exercise franchise rights in the City. Pursuant to Ordinance No. 24, Series 2012, adopted October 9, 2012, the City granted SourceGas Distribution a 20-year franchise to provide natural gas service within Aspen, that took effect December 13, 2012 and expiries on December 13, 2032. 5. On June 30, 1961, the City granted SourceGas Distribution predesessor, Rocky Mountain Natural Gas Company Inc. (RMNG), a 25-year franchise to provide natural gas service to the City in Ordinance No. 5, Series 1961. On July 21, 1961, the Commission, in Decision No. 56857, Application No. 18469, granted RMNG, a CPCN to exercise franchise rights as described in Ordinance No. 5, Series 1961. 6. On April 28, 1986, the City granted SourceGas Distribution predesessor, K N Energy, Inc. (KN), a 20-year franchise to provide natural gas service to the City in Ordinance No. 14, Series 1986. On April 15, 1987, the Commission, in Decision No. C87-503, Application No. 38343 granted KN, a CPCN to exercise franchise rights as described in Ordinance No. 14, Series 1986. 7. A utility wishing to exercise any franchise agreement or privileges entered with a municipality must obtain a CPCN from the Commission pursuant to § 40-5-102, C.R.S. When the municipality and a utility enter into a franchise agreement, that agreement must be submitted to the Commission for approval. See § 40-5-102, C.R.S. Such applications allow the 2 c r Before the Public Utilities Commission of the State of Colorado Decision No. C13-0090 DOCKET NO. 12A-1283FG Commission to review franchise agreements to ensure that the terms are reasonable and in the public interest. 8. The Commission understands the utility and the municipality may want to revise the terms established in a franchise agreement at some point in the future and that existing franchise agreements have scheduled expiration dates. Upon negotiation of a new or amended franchise agreement, the utility shall return to the Commission in a timely manner to obtain authorization to implement the provisions of the new franchise agreement. In the event that this franchise is not renewed at the expiration of its term or is terminated for any reason, the Company is directed to notify the Commission in a timely manner. 9. Pursuant to the franchise agreement presented in this application, as consideration for the franchise rights granted and in recognition of SourceGas Distribution's right to use the City streets, the City requires that SourceGas Distribution shall collect and remit to the City a franchise fee equal to 2 percent of annual gross revenue derived from gas sales service within the corporate limits of the City that is billed by the Company, including the revenue received from the sale of industrial gas, and a franchise fee equivalent to $0.0174 per therm for gas transportation service within the corporate limits of the City that is billed by the Company, excluding revenues received from the City for gas service furnished and after adjustment for net write-off of uncollectable amounts and corrections of bills before rendered. The Company can begin collecting the additional franchise fee equivalent to $0.0174 per therm for gas transportation service with the effective date of this Order. 10. No other utility is authorized to provide natural gas utility service within the area for which SourceGas Distribution seeks a certificate in this application. 3 Before the Public Utilities Commission of the State of Colorado Decision No. C13-0090 DOCKET NO. 12A-1283FG 11. We find the franchise is required by public convenience and necessity and the terms of the franchise agreement are just, reasonable, and in the public interest. However, in the event that issues of revenue requirement, cost allocation, and rate design are implicated by any provision of the franchise agreement, those issues will be analyzed in an appropriate Commission docket. Approval of the franchise agreement does not constitute approval of, or precedent regarding any principle or issue in revenue requirement, cost allocation, or rate design in any natural gas adjustment,refund, or rate case dockets. 12. SourceGas Distribution, through its predecessors, RMNG and KN, has provided natural gas service in the City since 1961, subject to a franchise agreement. Because the area encompassed by the Aspen franchise was previously served by SourceGas Distribution, the Company is not required to provide a feasibility study as set forth in Rule 4100(b)(VI) of the Rules Regulating Gas Utilities and Pipeline Operators, 4 CCR 723-4. 13. We find SourceGas Distribution has the financial ability and is qualified and competent to conduct the utility operations sought under its application. 14. SourceGas Distribution's natural gas service tariffs, currently on file with the Commission, will be used for service under this application. 15. Providing uninterrupted service to the residents of Aspen is in the public interest. Therefore, the Commission finds that the application is in the public interest and should be granted. II. ORDER A. The Commission Orders That: 1. The application filed by SourceGas Distribution LLC (SourceGas Distribution), for a Certificate of Public Convenience and Necessity (CPCN) to exercise franchise rights 4 i Before the Public Utilities Commission of the State of Colorado Decision No. C13-0090 DOCKET NO. 12A-1283FG pursuant to Ordinance No. 24, Series 2012, in the City of Aspen, Colorado is deemed complete and granted. 2. The grant of the CPCN to operate under the terms of this franchise agreement is in the public interest and in accordance with the terms of§ 40-5-102, C.R.S. 3. The franchise fee as described above is approved by the Commission as of the effective date of this Order. 4. The franchise agreement between SourceGas Distribution and the City of Aspen and the rights and obligations associated therewith are scheduled to expire on December 13, 2032. 5. The 20-day time period provided by § 40-6-114, C.R.S., to file an application for rehearing, reargument, or reconsideration shall begin on the first day after the Commission mails this Order. 6. This Order is effective upon its Mailed Date. 5 Before the Public Utilities Commission of the State of Colorado Decision No. C13-0090 DOCKET NO. 12A-1283FG B. ADOPTED IN COMMISSIONERS'WEEKLY MEETING January 30,2013. (S E A L) THE PUBLIC UTILITIES COMMISSION Of CpZ,a" OF THE STATE OF COLORADO JOSHUA B. EPEL JAMES K. TARPEY ATTEST: A TRUE COPY PAMELA J. PATTON Commissioners Doug Dean, Director 6 ftt, 4f000 t_ahowood. C-,'Q March 29, 2010 City of Aspen, Colorado Attn: Scott Miller 130 South Galena Street Aspen, CO 81611 501A��.� SourceAGas ARE: CONTRACT TRANSMITTAL Request for Distribution Transportation Service and Distribution Transportation Agreement for SourceGas Distribution LLC and Rocky Mountain Natural Gas LLC Agency Agreement Y' t u ti. SIGNATURE REQUESTED — Enclosed please find two (2) copies of the subject agreement. Please have both copies executed on behalf of your organization and return both signed co ies to us at the letterhead address. We will have both copies executed on behalf of SourceGas Distribution LLC and will return one fully executed copy to you for your records. X FOR YOUR RECORDS -- Enclosed is one (1) fully executed set of original contracts for your records. SourceGas Distribution LLC has retained a fully executed original set for its records. You will notice some changes may have been made in blue pen to the premise ID number for each meter. These changes are system related, and this new information was likely not communicated to your agent until after these forms were completed. If you have any questions on this matter, please do not hesitate to contact me at (303) 243-3529. Respectfully, Ini Sargent Contracts Analyst SourceGas Distribution LLC Colo. PUC No, 7 First Revised Sheet No. 95 Cancels Original Sheet No. 95 FORM OF REQUEST FOR DISTRIBUTION TRANSPORTATION SERVICE AND DISTRIBUTION TRANSPORTATION AGREEMENT Page 1 ofj Z CUSTOMER INFORMATION Contract Number:� Date: 12J01 /09 Complete Legal Name of Customer: City of Aspen, Colorado State of Incorporation: Address: 130 South Galena Street For Billing: Same Aspenco sas» Phone: 970-920-5085 Phone: Fax: For Notices: Contact Name: Same Alternate Contact: Address: Alternate Address: Phone: Alternate Phone: Customer Service Type: Existing Service (Check one): Requested Service (Check One): OResidential OResidential Transportation Service OSmall Commercial OSmall Commercial Transportation Service *Large Commercial *Large Commercial Transportation Service OSeasonal OSeasonal Transportation Service ONone OIrrigation and/or Crop Drying Transportation Service Requested Date of Distribution Transportation Service to Begin: 11/01/09 Initial Term of Agreement: 12 Months Renewal Term of Agreement: ,A, June 30, 2011 an bu'i annualfy thereafter `i Advice Letter No. 238 Decision or Authority No, R09-1146 Bentley W. Breland Issuing Officer Executive Vice President Title Issue Date: October 29, 2009 Effective Date: November 1, 2009 C SourceGas Distribution LLC Colo. PUC No. 7 First Revised Sheet No. 96 Cancels Original Sheet No. 96 FORM OF REQUEST FOR DISTRIBUTION TRANSPORTATION SERVICE AND DISTRIBUTION TRANSPORTATION AGREEMENT Page 2 of 3 End User Delivery Point Information: Facility Service Address Premise Affiliate Name or Legal Location ID# Information City of Aspen 861 Maroon Creek Rd, Aspen -4066 a 151o,LL4ala a City of Aspen 320 E Hyman Ave, Aspen City of Aspen 1080 Power Plant Rd, Aspen -4e5.3&51 g33 Aspen Pitkin Housing 39551 W Hwy 82, Aspen 44%" 16 j 34950 Aspen Pitkin County 100 Marott Place, Aspen 4Q83+S)() J This Agreement and all its rates, terms and conditions as set out in this agreement and as set out in the tariff provisions which are incorporated into this agreement by reference, shall at all times be subject to modification by order of the Commission upon notice and hearing and a finding of good cause therefore. In the event that any party to this agreement requests the Commission to take any action which could cause a modification in the conditions of this agreement, the party shall provide written notice to the other parties at the time of filing the request with the Commission. If the end -use Customer uses a marketing broker for nomination, gas purchases and balancing, the end -use Customer shall provide the Company with an Agency Agreement. For Customers in the Company's Western Slope Colorado Rate Area, submittal of this Request affirms approval of Customer for Rocky Mountain Natural Gas LLC to obtain any and all necessary customer records from SourceGas Distribution LLC for provision of transportation service on Rocky Mountain Natural Gas LLC. Submitted by: Name: Title: b Date: 17J 0 Approved by: Title:-l�c/C�% i (t pGrS1 &I Date: Advice Letter Letter No. 238 Decision or Authority No. R09-1146 Bentley W. Breland Issuing Officer Executive Vice President Title Issue Date: October 29, 2009 Effective Date: November 1, 2009 N Rocky Mountain Natural Gas LLC Colo. PUC No. 3 First Revised Sheet No. 126 Cancels Original Sheet No. 126 ' FORM OF REQUEST FOR FIRM TRANSPORTATION SERVICE ATTACHMENT A FORM OF AGENCY AGREEMENT The undersigned, by and on behalf of City of ASperl, Colorado (Principal), having a mailing address of 130 South Galena Street Aspen, CO 81611 , hereby designates A M Gas Transfer Corp. (Principal's Agent), having a mailing address of P 4 Box 7941, Aspen, CO 81612-7941 , as its Agent, with full authority to act on its behalf in managing gas transportation on Rocky Mountain Natural Gas LLC (Company), as specified below, for the transportation of gas supplies from Company's Receipt Points to the Primary Delivery Point(s) as shown in the Request for Firm Transportation Service Form. Principal authorizes Principal's Agent to act on its behalf in managing gas transportation on Company's system, arranging for the delivery of gas quantities to Company's Receipt Point(s) for Principal including submitting all nominations therefor, managing gas transportation Imbalances incurred on behalf of Principal, receiving invoices from Company and paying all applicable charges for gas transportation service provided by Company to Principal at the above Delivery Point(s). Principal also authorizes Principal's Agent to obtain Principal's usage and billing history from SourceGas Distribution LLC for provision of transportation service on Rocky Mountain Natural Gas LLC. Principal's Agent and Principal acknowledge that all service provided by Company is for the benefit of Principal. Principal and its Agent acting on its behalf shall be subject to the Rate Schedules and General Terms and Conditions of the Company's Tariff for Natural Gas Service. In the event that Principal's Agent or Principal fails to make timely payment for service provided by Company, or otherwise is in default under the provisions of Company's Tariff for Natural Gas Service, this Agency Agreement may be revoked by Company and all service provided shall be subject to termination in accordance with Company's Tariff for Natural Gas Service. If such termination of service is a result of Principal's Agent's failure to make payment, Principal shall not be entitled to continued service, regardless of whether Principal has made payment to Principal's Agent, until Company receives full and complete payment or satisfactory payment arrangements between Principal and Company are made as determined by Company. Principal's Agent and Principal shall be jointly and severally liable for all payments due and owing Company for all services provided. As of the effective date below, Principal's Agent shall be authorized to act on Principal's behalf in managing gas transportation on Company's system. This Agency Agreement shall become effective as of 11/01/09 This Agency Agreement is made and entered into this Z day of f 4ol , 201. /(Prince al) O(Principal Agent) 40,t �' % _ Barton J. Levin (print name) (print name) President Title: C - T /`Z �*-- Title: A M Gas Transfer Corp. CltyotAspe< Colorado Advice Letter No. 67 Decision or Authority No. R09-1146 Bentley W. Breland Issuing Officer Executive Vice President Title Issue Date: October 29, 2009 Effective Date: November 1, 2009 C Rocky Mountain Natural Gas LLC FORM OF REQUEST FOR FIRM TRANSPORTATION SERVICE Pagel of 2 Colo. PUC No. 3 First Revised Sheet No, 124 Cancels Original Sheet No. 124 SHIPPER INFORMATION Date: 12/01 /09 Complete Legal Name of Shipper 1/. A M Gas Transfer Corp. State of Incorporation: CO Address: P O Box 7 441 For Billing: Same Aspen, CO 81612-7941 Phone: 970-920-3323 Phone: Fax: 303-484-3395 For Notices: Contact Name: Barton J. Levin Alternate Contact: Kathleen Salak Address: P O Box 7941 Alternate Address: Aspen, CO 81612-7941 Phone: 970-920-3323 _ Alternate Phone: 402-763-8517 End -Use Party (if applicable and different from above) Name: City of Aspen, Colorado Contact Name: Scott Miller Address: 130 South Galena Street Asnen.gBQ 161t - Phone: 970-920-5085 Fax: Existing Service (Check one): Requested Service (Check One): •Residential OResidential Transportation Service •Small Commercial 0Small Commercial Transportation Service *Large Commercial •Large Commercial Transportation Service O Seasonal 0 Seasonal Transportation Service ONone •Off -System Firm Transportation Service Requested Date of Transportation Service to Begin: 11 /01 /09 Notes: I/ If Shipper is Agent of an End -Use Party, Shipper must include written authorization to act on End -Use Party's behalf. Advice Letter No. 67 Decision or Authority No. R09-1146 Bentley W. Breland Issuing Officer Executive Vice President Title Issue Date: October 29, 2009 Effective Date: November 1, 2009 C U M N N C O .o U 4) . �0 CA a El f!? Th 0 MA ,n v v 000 ni 9 w a cn 9 U] O t� b 4 Pq E-4 �1 to CD � a Y p� H Lqo P., r co � cu c a) m Q cot...� p a' c 45 Y tV � a U 4 � a n. ts.t ca U a 0 rn o �4 rn 00 a a o o a O U �a c A A4 d w o o to � CA to �+ CD a Jd P4�oa u'''r •d '� U rn � al m CL r QU (V aZ co o o P� N N N � 0 O ° Z ai 'A cn Ga W cd a W W w d- M f'4 `kit o . i - f ,fl �OA) Q Ate;. M N N 6 —4 U Z Z 41 a3 a� A� U f�i Q U fLc � V Cd 0 w U a El 2 Cl) 0) rn 0 O •it U y H' Q d o w 4 r ` o 0 � 4 U z o •° E+o N � a x LO ©€5� P4v 1 cl '�a A o� A to o .Cls1 4 CL b ai ca cr 164 O �o.4 E '.� (DQ c 0,4 a O Q 4 oG c� CaO U co a- aU 4 5 Zi "5 4 m to In Uzz �COcn o .� U,�.� 4Q W a cat z U V 00 o co O > Y � o p vCL ,aLo c� WRi t7 pt�. G zo ao 00 o ©En o zN G tow O ,Q At p CD CY 0 Icn cu P-4i4 �. C 'd ..�-� 4-4 ' O r i� in d W O m Q to sOCo � f� O 0 � 34 O. � M W) v'1 O ,N-+ .N-+ Uzz o 4CIO 60 V 8 asi 'G C�+ o U W c�� V v OA i A U � r� O Q pa F+ H H 0 00o N 4) o 9 45 O cx, a 0 v O O H A� LO co Ln � � 0� Y Ela r- un co c . 03 co b� <0 = N LO C! LO m G E O � z C Q Q Cl.NN z�'~ a4 C)zz 00 C/) O `c7 cad �O i W U A� ,a . M y c' N col U ) V W P� _� a U z PQ o 'at F1 a OZ CA P LO o 0Wr�i� o co 00 0 U cq O A y oCU cn CA Q' ` ~ �} O ad U H o "Cy p f1. ,�, •� � v p U ' vCF N U �CL a� OK Q ri Facilities Agreement, . Electronic Flow Measurement This Facilities Agreement - Electronic Flow Measurement ("Agreement") is entered into this 25th'day of September, 2001,1i Morgan Inc. ("KM") and City of Aspen, Colorado, the Customer/Transporter (Customer). Witnesseth that: WHEREAS, KM has a tariff requirement that all transport customers install electronic flow measurement (`EFM') equipment on each meter to be designated as a transport meter; and WHEREAS, Customer chooses to designate those accounts/meters set forth below in this 'Agreement as transport account/meters. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties enter into the provisions set forth below to effect the transport designation. Section 1 - Electronic Flow -Measurement Equipment 1.1 As required by K.M's tariff requirements, EFM is required at all transportation service delivery points. if EFM does not exist at any transportation delivery point requested by Customer, KM shall have no obligation to provide transportation service to that point unless and until Customer agrees to the KM's installation of EFM at such delivery point and to Customer's reimbursement of KM for all of its costs related to the installation and operation of EFM at such point. 1.2 Customer agrees to pay for the electronic flow measurement equipment, including charges related to income tax gross -up, to be chosen, installed, owned and approved by KM for each meter Customer chooses to designate as transport, as set forth below. Customer shall be responsible for all ongoing costs, costs for software and if so desired, shall filrnish their own communication hardware necessary to run the software. Customer shall be responsible for the cost of the power supply and phone line dedicated solely for the equipment and monthly costs associated with. those services. If such phone and power.supply have not been installed within sixty (60) days after signing this Agreement, then KN1 shall. have the right to refuse transportation service to Customer. The Customer will reimburse the Company for all reimbursable costs, either in lump sum payment when service is initiated, or over the life of the initial transportation agreement. with interest at a Colorado Public Utilities Commission approved interest rate. If Customer fails to timely make any payments to reimburse the Company for any reimbursable costs related to EFM installed at a delivery point under any transportation service agreement with Customer; the Company may, upon thirty (30) days notice, terminate service to Customer under such ' agreement, in addition. to, and without limitation upon, any other legal or equitable. remedies KM may have. Customer will be provided the ability to monitor the volume collected by the EFM via the DART PLUS electronic information system. However, the KM measurement at the custody transfer point will be the official custody transfer measurement. 1.3 Customer understands and agrees that by electing to transport, Customer- will be responsible to obtain such upstream. capacity for delivery of supply on Customer's behalf.and to comply with the upstream pipeline requirements, including balancing. 1.4 The cost for the EFM facilities for small volume transportation customers will be no more than .$2500 per meter. This cost excludes costs for a dedicated phone line and power supply. This price does not include EFM equipment for customers whose maximum hourly consumption exceeds 100 MMBtus. Section -2 - Equipment Outage. 2.0 The Customer will maintain the communication line and the power supply and cause any. interruption in service over the corn.munication or power supply to be repaired as soon as possible. In the event that there is a communication or power supply failure Customer shall immediately notify KM, of such failure and the parties shall work together to obtain EFM data until such failure is colTected, by calling 1-800-563-0012, and ask for Retail Dispatch. Further, if interruption of service occurs on the communication line, the Customer will receive an additional twenty-four (24) hours, up to three (3) business days, to bring actual receipts or deliveries and nominations more closely into alignment. -If the communication line. is. not repaired within three (3) business days, KM will cease to accept transportation nominations from the Customer. Section 3 - Overpressure Protection 3.1 KM .may install regulation and relief devices where applicable, as determined by K-M, to meet the regulatory obligations of its own pipeline facilities.. These pressure devices should not be relied on by the Customer for operation of its pipeline facilities. KM will provide its overpressure protection calculation data, upon written request, to the Customer. This data will be provided as a courtesy only, and Customer acknowledges and agrees that KM's voluntary provision of such data to Customer is not intended to, nor should it be construed as; K.Ws acceptance to provide overpressure protection to the Customer's :facilities or impose upon KM any obligation whatsoever to provide any overpressure protection to the Customer's facilities. By acceptance of this Agreement, Customer acknowledges and agrees that overpressure protection for any facilities downstream of the custody transfer point is Customer's sole responsibility. 3.2 Customer acknowledges and agrees that KM shall not be liable for losses, claims or damages of :any kind whatsoever, foreseeable 'or unforeseeable, that arise frorn or relate to the content of the overpressure protection data, provided as a courtesy, or errors, omissions, misinterpretations, or delays associated with the data. Section 4 -Term. 4.0 This Agreement shall continue fora primary term contemporaneous with the term of the Customer's corresponding distribution agreement with K.M. Upon tennination of this Agreement KM may elect to relocate the EFM equipment to other points on its system at its discretion. Section 5 -- Miscellaneous 5.1 THE PARTIES HEREBY AGREE THIS AGREEMENT SHALL BE GOVERNED BY AND -CONSTRUED IN ACCORDANCE WITH THE .LAWS OF THE STATE OF COL,ORAD07 EXCLUDING, HOWEVER, ANY PROVISION OF COLORADO LAW WHICH WOULD OTHERWISE REQUIRE THE APPLICATION. OF THE LAW OF A DIFFERENT JURISDICTION. 5.2 This Agreement may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to. be an original, and. all of which together shall constitute one and the same instrument. 5.3 ' If any provision of this Agreement is held invalid, the remainder of the Agreement shall not be affected thereby unless the effect would be to materially alter the burdens or benefits intended by the parties by the express language of this Agreement. Section 6 - list of Meters and Account Numbers 6.0 380472 285646-6 340499 289017-6 326781 283823-3 310695 284173-2 Section 7 — Customer Contact Information 7.0 Customer Contact: Name (Print) Phone Number 4 Fax Number In WITNESS WHEREOF, the duly authorized representatives of the respective parties hereto have hereunder signed these presents of the dates respectively indicated. Kinder Morgan., Inc , , Kathryn Lynne McCoy Date Sept 25, 2001 Customer Signature Date Customer Name (Print) City of Aspen, Colorado Customer Address 130 South Gdlena Street, Aspen, CO 81611 5 Kinder Morgan, Inc Distribution Trans ortation Service.A reement Confirmation of Renewal Contract Number: 718528 Renewal Date: September 25, 20:01 Buyer: City of'Aspen, Colorado Renewal Term:' Twenty (20) months. Effective Date: October 1, 20�01 List of Meters: Same as DTSA on file. All other terms and provisions:of the above referenced contract shall remain in full force an&'effect through the renewal term. 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P CD W Q3 Cn O CD CA W -� CU Ut N W .0 O -t V M bo 6 W N fV Cn , 6 O O CD (D N 4 -I N W CJ t N W tt7 C3ti Oo 69 -(p9 69 69 164 .-64 -69 69 69 EA Ffl Eta NWNNN)NNN-���N N 0 N yN 6R 69 69 N N W 696g69{� J O� M N CO Cn m w 0 C n -4 -4 N A CD CA CD V W .A " Ut U1 CD. W `.! �Im0 NNO--4 . W co 69 <0 69 69 .-.. /Qq 69 69 69 69 j ..� ..a P.b�ERNNN-*fR�A.A.O W O co .s N Cn .p .p N CA O N C.n •A cD 0 W -h Cn- O OD 07 .A W W CO 0 Z7 G7 0 � CO @ --I � � D ~a = z o D .0 p D cn (n --� � D 0 m = 0 N p n 0 -nn � 01 Q 3E K D CD ( �_ Q 0 a z ro C) m "n KINDER "MORGAN INC July 26, 3001 Bill Efling City of Aspen 130 S. Galena St. Aspen, CO 81611 Dear Mr. Efling: 'Recently, you received a letter from Kinder Morgan, Inc., ("Kinder Morgan") concerning new tariff provisions for Distribution Transportation Service that have been approved by the Colorado Public Utilities Commission with an effective date of May 4, 2001 and May 7, 2001. In accordance with the approved tariff provisions, ­the letter informed customers that existing Firm Distribution Transportation Service contracts as of May 4, 2001 will be allowed to continue until the contract expiration date. Firm Distribution Transportation Service contracts executed thereafter will be for a period of one year or more. Also, the letter provided that electronic flow measurement (EFM) equipment is required to be installed at each delivery point. The letter stated that customers sign and return the enclosed Distribution Transportation Service Agreement and Facilities Agreement on or before July 31, 2001. If a customer elected not to execute a one (1) year transportation service agreement and a facilities agreement, his distribution transportation service.will terminate effective August 1, 2001. Since that time, Kinder Morgan has been researching the possibility of alternatives with respect to acceptable.-EFM .equipment. that -will suit: its needs_ai a lower; cost per installation,.:to.distribution transportation service customers. We are working on the possibility of 'customized software and a creative approach that may enable us to reduce costs,: but which,will require some time to develop and test. In the meantime, Kinder Morgan filed with the Commission a request to revise its tariff so that (1) distribution transportation customers will have an extra month, until September 1, 2001, to;execute facilities agreements for the installation of EFM equipment; and (2) Kinder , Morgan will not be required. to terminate service to customers that have not executed facilities agreement by. September 1 if the EFM equipment and customized software costs have not been determined by Kinder Morgan. On July 201, the Commission approved Kinder Morgan's revised tariff request. Therefore, distribution customers now havq until September 1, 2001 to execute their facilities agreements and enter into new distribution contracts. Once Kinder Morgan has determined whether there is a less costly alternative for the EFM equipment, Kinder Morgan will contact customers and provide them with adequate time to evaluate a cost. estimate before signing the facilities agreement and a new distribution agreement. If you have. additional, questions,.please contact Teri Dobrinsld:at 3.03-763-361 I or. Kathy McCoy at 303 70-::3484:... Sincerely, Kathyrn L. McCoy. Director 370 Van Gordon Street P.O. Box 281304 Lakewood, CO 80228-8304 (303) 989-1740