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