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HomeMy WebLinkAboutordinance.council.005-61 ORDINANCE NO. 5 (Series of !96]_) AN ORDINANCE GRANTING A FP, AI~CHISE BY TH~ CITY OF ASPEN, COLORADO, TO THE ROCKY 190UNTAIN NATURAL GAS GOMPAi~Y, INCORPORATED, A COLORADO CORPORATION, ITS SUCCESSORS AND ASSIGNS, TO LOCATE, BUILD, CONSTRUCT, ACQUIRE, PURCHASE, EXTEND, MAINTAIN AND OPERATE INTO, WITHIN AND THROUGH THE CITY OF ASPEN, PI~IN COUNTY, COLORADO, A PLANT OR PLANTS, AiqD WORKS, FOR T~E PURCHASE, MANUFACTURE, TRANS- MISSION 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 MF2~IS OF PIPES, MAINS, OR OTHERWISE, OVER, UNDER, ALONG, ACROSS AND THROUGH ANY AND ALL STREETS, ALLEYS, VIADUCTS, BRIDGES, ROADS, LANES, AND OTHER PUBLIC WAYS AND PLACES IN SAID CITY OF ASPEN, AND FIXING THE TERMS AND CONDITIONS THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, PITKIN COUNTY, COLORADO: Section 1. Short Title. This Ordinance shall be known and may be cited as the "Rocky Mountain Natural Gas Company Franchise Ordinance." Section 2. Definitions. For the purpose of this Ordinance, the follow- ing terms shall have the meaning given herein: "City" is the City of Aspen, Pitkin County, Colorado, the grantor of rights under this franchise. "Company" is the Rocky Mountain Natural Gas Company, Inc., the grantee of rights under this franchise. "Council" is the City Council of the City of Aspen, Colorado. "Person" is any person, firm, partnership, association, corporation, company or organization of any kind. Section 3. Grant of Authority. There is hereby granted to the Company the right, privilege and authority to locate, build, construct, acquire, purchase, extend, maintain and operate into, within, and through said City a plant or plants and works, for the purchase, manufacture, transmission and distribution of gas, either natural, artificial or mixed, with the right and privilege for the period and upon the terms and conditions hereinafter specified to furnish, sell and distribute gas to the City, and the inhabi- tants thereof, for heating, cooking or other purposes, by means of pipes, mains, or otherwise, over, under, along, across and through any and all streets, alleys, viaducts, bridges, roads, lanes, and oth~ public ways and places 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 other public ways and places as may be hereafter laid out, opened, located or constructed within the territory now or hereafter included in the boundaries of said City. Section 4. The Company is further granted the right, privilege and authority to excavate in, occupy and use any and all streets, alleys, viaducts, bridges, roads, lanes, parkways, 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 of Aspen, Colorado, and supplying gas to said City and the inhabitants thereof and in the territory adjacent there- to, provided, however, that the Company shall so locate its plants, works, transmission and distribution structures, equipment, mains and pipes within said City in a manner to meet with the approval of the City and further in locating said facilities 8hall do so in such manner as to cause minimum inter- ference 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 Company, 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 Company shall repair in a workmanlike manner subject to the approval by the City, such sidewalk, graveled or paved street, road, alley, or other improvement after the installation of its pipes or other structures. The Company shall use due care not to interfere with or damage any water mains, sewers, or other structures now in or which may hereafter be placed in said streets, alleys or other public places, and said Company shall, at its own expense repair in a workmanlike manner sub- ject to the approval of the City, any of such water mains, sewers, or other structures which are damaged through the negligence of the Company, provided, however, that the City may make such repairs and charge the reason- able cost thereof to the Company. Section 5. The Company shall so maintain its structures, apparatus, mains, pipe and other equipment as to afford all reasonable protection against injury or damage to persons or property therefrom, and the Company shall save the City harmless from all liability or damage and all reaso~le expenses necessarily accruing against the City arising out of the negligent exercise by the Company of the rights and privileges hereby granted; and for this purpose the Company shall maintain public liability insurance in an amount not less than $500,000 and shall furnish a certificate to the City so showing. Provided, that the Company shall have had notice of the pendency of any action against the City arising out of such exercise by the Company of said rights and privileges and be permitted at its own expense to appear and defend or assist in the defense of the same. Section 6. If at any time it shall be necessary to change the position of any gas main 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. Section 7. 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. Section 8. Service Standards. The Company shall maintain and operate its plant and system and render efficient service in accordance with the rules and regulations of the Public Utilities Commission of the State of Colorado and the terms and conditions or,his ordinance, including specif- ically, but without limitation the following requirements: a. Heating Value. Gas sold, supplied, and delivered under this fran- chise shall be maintained at a monthly average of not less than 950 British Thermal Units of heat value per cubic foot. A cubic foot of gas means that amount of gas which when saturated with water vapor at a temperature of sixty degrees (60°) Fahrenheit and subject to an absolute pressure equal to thirty inches (30") of mercury, at thirty-two degrees (32°) Fahrenheit (14.73 pounds per square inch) occupies a volume of one (1) cubic foot. Gas sold under this franchise shall be accurately measured utilizing metering equipment of a type approved by the Public Utilities Co-~,ission of the State of Colorado, which shall also be subject to approval of the City. b. Calorimeter Test Required. The company shall equip itself with a complete standard calorimeter and shall determine the heat value of the gas weekly. The tests may be made at any point within the limits of the distri- bution system or at any point on the pipeline or at the Glenwood Springs border station, at the option of the Company. The monthly average heating value of the gas shall be obtained by averaging the heat value found as a result of the weekly calorimeter tests as provided hereunder. c. Gas Pressure. Gas pressure, as measured at the outlet of the Company's service to any consumer, shall conform with the requirement of the Public Utilities Commission of the State of Colorado. The Company shall -2- maintain a graphic recording pressure gauge at a point in the distribution system to be designated by the City as typical of average pressure. The Company shall also keep and maintain a portable graphic recording gauge which shall be used on the request of the City or any customer of the Company within the limits of the City to test the pressure at any point in the distribution system where it connects with the service of a customer. d. Natural Gas. Natural gas shall be furnished to the City in its natural state as it is produced at the wells, without dilution, e~cept that the Company shall remove such noxious gases therefrom and add such odorizing agents as may be required by law or regulations of proper authorities. e. Expense of Adjustment. If, after natural gas has been made available, it should later be necessary to revert to manufactured, artificial, or other suitable, or mixed gas, the Company shall defray all necessary expenses incident to the adjustment of domestic appliances, including the changing or redrilling of orifices and burners. f. Maintenance of System. The Company shall maintain its gas plant equipment and distribution system in good condition and repair at all times. g. Maps. Before commencement of' installation of pipes in City streets and alleys, the company shall prepare and submit to the City Council a map showing the location of its distribution system, showing location, size and depth of lines, locations of shutoff valves and gates, and all appurtenances incident to the distribution system, so far as such facilities can reason- ably be projected. In addition, the company 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 approval of said map and plan by the City. Thereafter, the map shall be kept current by addition of the information hereby required as the system is extended or revised. If the company fails to keep such map current and provide the required information, the City can cause such work to be done, and charge all costs thereof to the Company. h. Copies of all calorimeter tests, pressure gauge recordings shall be filed with the City Clerk monthly. i. In making installation of its natural gas distribution system, the Company shall make adequate provision for providing service to customers,, and it shall be the responsibility of the company at the company's cost to extend gas service lines to the property lines of customers who have ordered gas. Section~. If during the term of this franchise there occurs a failure or partial failure of the supply of natural gas available to the Company because of the depletion of such supply, the Company shall take all reason- able steps to obtain an additional natural gas supply from other sources to be delivered to the Company, and if unable to procure same it is hereby authorized to supply artificial or mixed gas for the unexpired term of this franchise. If Company within a reasonable period after the 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~. The Company shall furnish gas within the corporate limits of the City or any addition thereto, t~ the City and to the inhabitants there- of, and to any person or persons or coporation doing business in the City or any addition thereto, at the 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, filed with or fixed by the Public Utilities Commission of the State of Colorado, or by any other competent authority having jurisdiction in the premises. -3- Section 11. The Company shall not, as to rates, charges, services, facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any corporation or person or subject any corpora- tion or person to any prejudice or disadvantage, 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. Section 12. The rates to be charged by said Company for industrial gas used in said City may be lower and different from those charged for gas used for other purposes, provided that contracts for industrial gas contain a "cut-off" clause which recognizes the preferred right of the other uses over industrial uses. Section 13. Company shall from time to time during the term of this franchise make such enlargements and extensions of its distribution system as the business of the Company and the growth of the City justify, in ac- cordance with its Standards for Service, Rules and Regulations, and Service Connection and Extension Policies for gas service concurrently in effect and on file with the Public Utilities Commission of the State of Colorado or other competent authority having jurisdiction in the premises. Section 14. The Company from time to time may promulgate such rules, regulations, terms and conditions governing the conduct of its business, including the utilization of gas 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 insure a continuous and uninterrupted service to each and all of its customers and the proper measurement thereof and payment thereof, provided that the Company shall keep on file in the office of the City Clerk of the City and in its office in Denver, Colorado, available to the public, copies of its Rate Schedules, Standards for Service, Rules and Regulations, and Service Connection and Extension Policies con- currently in effect and as filed with the Public Utilities Com~ission of the State of Colorado or other competent authority having jurisdiction in the premises. Section 15. As a further consideration for this franchise, and ac- cepted by the City in lieu of all occupancy and license taxes and all other special taxes, assessments or excises upon the pipes, mains, meters, or other property of the Company, or other levies that might be imposed, either as a franchise tax, occupancy tax, license tax, permit, charge, or for the inspection of pipes, mains, meters, or other property of the Company, or otherwise, the Company shall pay to the City a sum equal to two per cent (2%) of its annual gross revenue derived from the sale of gas within the corporate limits of the City, excluding the revenue received from the sale of industrial gas, and excluding the amount received from the City itself for gas service furnished it and other adjustment for the net write-off of uncollectible accounts and corrections of bills theretofore rendered, pro- vided, however, that the City may after the initial construction of the distribution system, require the payment of a reasonable permit charge for the opening of streets, alleys or other public ways and places, and a reason- able fee for the inspection of repairs thereto. Payments of the franchise tax shall be made on or before the first day of March of each year for the calendar year next previous. For the purpose of ascertaining or auditing the correct amount to be paid under the provisions of this paragraph, the City Clerk and/or any committee appointed by the City Council shall have access to the books of said Company for the purpose of checking the gross income received from operations within said City. Section 16. After the expiration of five years from the completion of the initial distribution system and not before, the City shall have the right, option and privilege of purchasing the Company's entire plant and distribu- tion system operating in said City and, at the option of the City, in the immediate environs of the City, for the following purchase price: The actual cost of constructing the system (the entire system shall include all addtions and extensions to the original system), including as a part of -4- the cost thereof all engineering costs, legal costs, interest during con- struction, the administrative cost incident to construction~ plus ten (10%) per cent of the total cost of the system as a bonus for development of the system. (The ten (10%) per cent bonus referred to shall be reduced proportion- ately after the five-year period to the end of the franchise period). In no event shall the value of the franchise or right of way be included in computing cost of the system. Section 17. The purchase price of the system herein set forth is a method of acquisition of the system by the City, which is alternative to any other lawful means of acquiring title to the system by the City, and said right and privilege of purchasing the Company's entire system shall be in addition to all of the rights and privileges granted and reserved to the City by the laws of the State of Colorado in all matters relating to franchises. Section 18. In the event that the City shall acquire the distribution system of the Company under any lawful method of acquisition, than the Company agrees to supply and the City agrees to purchase natural gas at the City limit gate from the pipeline of the Company, for the balance of the unexpired terms of the franchise, at a price to be fixed by the Public Utilities Com- mission of the State of Colorado. Section 19. This Ordinance shall be in full force and effect, from and after its passage, approval and publication, as by law required, upon ac- ceptance thereof in w-fi~ing by the Company within 30 days after final passage, and the terms, conditions and covenants hereof shall r-r, ain in full force and effect for a period of twenty-five (25) years from and after the effective date following final passage. Section 20. Upon the expiration of this franchise, if the Company shall not have acquired an extension or renewal thereof and accept same, it may have, and it 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 re~ving therefrom 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 Company 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. Section 21. Rates. Rates charged by the Company for service hereunder shall be fair and reasonable and designed to meet all necessary costs of service, including a fair rate of return on the net valuation of its proper- ties devoted thereto, under efficient and economical management. The Company agrees that it shall be subject to all authority now or hereafter possessed by any regulatory body having jurisdiction, to fix just, reasonable, and compensatory gas rates. The Company further agrees that the system shall be so designed, constructed and sources of gas utilized as to provide the most economic development and favorable rate structure possible, taking into account deliverability of gas, reserves and other pertinent conditions. Section 22. Assisnment. The Company shall not assign this franchise, or the rights granted hereunder, without first obtaining written consent of the City. Provided, however, the consent to assignment shall not be unreason- ably withheld, and further that this condition shall not be construed to restrict or prevent the issuance of bonds, debentures, or other evidence of indebtedness, or the issue of additional stock, needed or useful for the purpose of financing the system or any portion thereof. Section 23. The Company will proceed as rapidly as possible and with due diligence to do all things necessary to provide natural gas to the in- habitants of the City of Aspen, and in the event natural gas is not2 made -5- available to the inhabitants of the City in accordance with the provisions of this ordinance within eighteen (18) months from the effective date hereof, or in the event at any time within said eighteen (15) months it shall be finally determined that the Company cannot secure a Certificate of Public Convenience and Necessity for said system from the Public Utilities Commission of the State of Colorado, and appeal rights have expired, then the City shall have the right to terminate and cancel this franchise. Provided that at least thirty (30) days notice in writing shall be given the Company before effective date of termination or cancellation. Section 24. Bond. Within 15 days after the Public Utilities Commission of the State of Colorado has granted to the Company a certificate of public convenience and necessity and after appeal rights have expired, the Company shall deposit with the City Clerk a bond in the penal sum of Ten Thousand Dollars ($10,000.00) executed by the Company with surety to be approved by the City, conditioned upon compliance %zith the terms and conditions of this Ordinance and further conditioned that the Company and its surety shall pay to the City all costs, expenses and d,mages resulting to the City from the failure of the Company to comply with the terms and conditions of this Ordinance, and further conditioned that the City shall recover all costs and expenses incurred in enforcing collection of said bond. Such bond shall be maintained in full force and effect during the period of this franchise, and additional security may be required from time to time, or security raay be adjusted, revised or substituted upon consent of the City. Section 25. Forfeiture. The City reserves the right to declare a ~omfe~ture of this franchise for the breach of a substantial and material provision thereof. No forfeiture shall be declared until the Company shall have had an opportunity to be heard and to correct the alleged breach. Upon failure of the Company to exercise reasonable diligence to correct such con- dition, the City may declare this franchise forfeited. In the event that this franchise is forfeited, then the Company agrees to continue to render service as theretofore, for a period of six (6) months to give the City time to decide upon its course of action. Section 26. Separability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or un- constitutional by any court of competent ]urlsdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the r~mmining portions thereof. Section 27. The right is hereby reserved to the City to adopt, from time to time, in addition to the provisions herein contained, such ordinances as raay be deemed necessary in the exercise of its police power, provided that such regulations shall be reasonable and not destructive of the rights 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. Section 28. The City Council of the City of Aspen, Colorado hereby finds, determines and declares that since said City and its inhabitants are not supplied or served with natural gas, an emergency is declared to exist and this Ordinance is declared necessary to the i~ediate preservation of the public peace, health and safety. A. D. 1961. ~i ATTEST: -6- Finally adopted and approved this f~>~//day of .<~/6~L~,. 1961. ~/, '~r ' / ATTEST: /city ~.~ k STATE OF COLORADO ss. COUNTY OF PIPKIN ) ... , city ci.rkof the City of A.p.n Colorado, do hereby certify that the above and foregoing ordinance was introduced, read in full and passed first reading at a regular meeting of the City Council held on ~e /~//day of ?~ , 1961, and was published in the Aspen Times, a weekly newspaper of general circulation, published in the City of Aspen, Colorado, in its issues of ~.~. ~ ~! /J ~/ , and /'~ ~¢ /~ ~ , 1961, and was finally adopted / / and approved by affirmative vote of three-fourths of the m~bers of the City ~uncil at a special meetin~ held on~ ~ ~ .~/~ and ordered published as Ordi~nce No. 5~ Series of 1961, of said City as provided by law. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of . said City at Aspen, Colorado, th~s ~/~tay of ~-z~d/~ , 1961. (SEAL)