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Home My WebLink AboutPACKET Light and Power 1992-09-10AGENDA Light and Power Committee September 10, 1992 10:00 a.m., Board Room 1. Fall River Hydro Plant Review of Proposals and Authorization to Negotiate Contract for Services 2. Public Service Co. Gas Franchise Review of Proposed Franchise Agreement 3. Reports A. Financial Report B. Project Updates C. Platte River Power Authority â‚¬ (2. t.0, 1,~_ hthi C /4 / ) P 3 3-0 E- NOTE: The Light and Power Committee reserves the right to consider other appropriate items not available at the time the agenda was prepared. TOWN OF ESTES PARK September 9, 1992 OFFICE MEMORANDUM TO: Light and Power Committee FROM: Richard E. Matzke~-29'- SUBJECT: Fall River Hydro Plant Review of Proposals and Authorization to Negotiate Contract for Services The Light and Power Department requested proposals from four firms for renovation and restoration of the Fail River Hydro Plant, as reported at the August 20, 1992 meeting of the Light and Power Committee. The requests were mailed on July 31, with proposals due on September 1. We received two "no bid" responses, one request for time extension, and one proposal from Jacobson/Coleman in Telluride, CO. We did not grant the request for an extension because all of the firms were asked if the September 1 .deadline would allow adequate time to prepare a proposal prior to mailing the requests and we were told there was no problem with the deadline. The attached proposal from Jacobson/Coleman estimates annual gross revenues to be between $15,390 and $94,435 and annual operating costs to_ be $63,000. The range in gross revenue is dependant on whether capacity revenue is based on average monthly output capacity or maximum hourly output capacity. Gross revenues are based on annual generation of 2,592,960 kWh. During the last five years of operation, the Fall River Hydro Plant averaged 933,384 kWh annual generation, however, during this period only one--of-the units_was-run-at-er-t-ime. At this-4eve-1-of-geneeation, (~ross annual> REE~fiRDwould range between $27,138 and $3?-p-9-21.D ff~- both uiTIEs coulc[<-4:De rlan=-simultan-eously during peclk-flow months, then the estimated generation may be more attainable. Mr. Jacobson proposes to enter into an interim lease agreement with the Town during which time he proposes to obtain a FERC ruling on licensing requirements and determine the extent of repairs needed 39 to place the plant in service. Upon completion of the proposed study, Mr. Jacobson proposes to enter into a final agreement to operate the plant and share profits with the Town. 1-1 2 Some of the issues which need to-addres-0-during the interim agreement are: 1. Term of agreement tuat -*b 09,41 ~~1 4-- 47-*Ef 2. Lease payment to the Town during interim 3. Availability of the property and facilities to the Town during the interim 7 + *~~*4Â»JU~ 4+u- _ ~~~644~JI~ ~ome of the issues to be addressed in the f inal agree~~4nht ~~~24~- < 1. Rate to be paid by the Town for electricity generated 1 2. Lease payments by operator Method of financing improvements 41\, Availability of the property and facilities to the Town 5. i,Preservation of historical features 6. 10*e-- of facilities and security during non-operating periods- The Light and Power Debattment requests au*heri-iiâ‚¬IBii-to negotiate an interim lease agreement-With Jacobso*toleman and ret~:<p to the committee for approval. We hoAthat_MFÂ· Frank Hix will)be able to participate in the negotiation proceRs as previously_~*iscussed. UZZ--==37-/ REM Â»14 *f 97 %/ U U. /4 , 3 91 42 4 1-2 !1 L !1Â· 'Wit.'.. 4.4 ' tr i t. 1. m k I 1 Â£ f f. " TOWN OF ESTES PARK I .j, r . I FALL RIVER HYDROELECTRIC FACILITY .., a I AUGUST, 1992 . itÂ·. 'I i It, Jacobson/Coleman Telluride, Colorado 7 k 66Â· 6 h#L. , 5,Â·''r . . I :Pl> f f . 0,1. M OUTLINE ,/Â·1 : I A. ..1 r, Location 1 f. B. History C. Machinery 441: d 1 D. Permits E. Hydraulics 4 ' ' F. Output t!Â· 4'.1 G. Gross Revenues 1. ! i H. Refurbishment Costs I. Operating Costs 4 Â· 2,4.1 J. Net Revenues K. Financing Options L. Lease Terms and Conditions M. Level of Assistance Needed from Town of Estes Park . L 4 1 . N. Outline of Experience J 0. Description of Involvement with Similar Projects .1, : P. List of Personnel .P.. .. , 4. A 4. : i 21 1 1 1 ! 1 - - â€¢ Â· tt, 1: . A. Location The Fall River Generating Station is owned by the town of Estes Park and is situated on the Fall River about 3 miles northwest of Iwt town. The plant outflow elevation is approximately 8,072 feet while the intake at Cascade Lake is at 8,472 feet, giving a gross head of 400 feet. Cascade Lake is connected to the powerhouse via about 5,300 feet of 30" welded steel pipeline. This conduit also provides raw water to the town's Fall River Filtration Plant which is situated on a site shared with the hydro plant. The filtration plant and pipeline are currently in service. There are also two powerplant operator's houses on the site. The Cascade Lake diversion works are partially surrounded by privately owned summer cabins and are within the boundary of Rocky Mountain National Park. t r B. History The powerstation was constructed in 1907 by Mr. F.O. Stanley to provide electricity to the Stanley Hotel which is situated about i one half mile east of Estes Park. The plant was later purchased by the town and the output was used by the municipal light and power system from then until 1982 when an upstream irrigation reservoir burst. In the ensuing flood, the wood-crib Cascade diversion dam was completely washed out and the powerplant damaged. The dam was replaced with a low concrete diversion structure and the pipeline repaired to provide raw water i. ' ' to the town f iltration plant. The powerplant was shovelled out and boarded up; it has not operated since the flood. , The plant is doubtlessly eligible for listing on the National Register of Historic Places due to its association with the Stanley t Brothers (of steam car fame) and its well preserved iron age interior. Generating unit #1 is also, in all likelihood, eligible for listing on the Historic American Engineering Record as this is 2 probably the only operable "Hug" turbine left in the world. Hug turbines were manufactured around the turn of the century in Denver Â¢ and used an odd concentric bucket impulse turbine wheel. 4 The other generating units are of a slightly later vintage (approximately 1920) and are of historic significance as well. , 1: Â¢ Appropriate historical listings are important for this plant as it would become eligible for Federal restoration funding if the town elects to repair it. If a private party were to restore the installation, about 20% of the restoration costs would be returned to the developer as Federal Income tax credits. State tax credits would also be available. i. : ? 2 C. Machinery 4 t The hydro plant has two water powered generating units and one diesel reciprocating unit. A 200 KW horizontal shaft "Western" r e generator directly coupled to a gear electric spear-valve regulated Hug impulse wheel with a belt drive exciter and governor constitutes unit #1 while unit #2 is composed of a single cylinder "Fairbanks-Morse" engine generator with a belt drive exciter. Unit #3 is a 680 KW "General Electric" generator directly coupled by means of a horizontal shaft to a 27" Francis turbine of .. "Worthington" manufacture. There is a direct coupled exciter and . a belt driven governor attached to this unit. Regulation is via a i hydraulically operated wicket gate arrangement. , A very old marble/slate switchboard controls the generating units. , There are four AC breakers suggesting that the plant at one time contained an additional generating unit (probably another oil- engine). Electrical regulation is completely manual. f. Nameplate generation is at 2,400 volt for units #2 and #3, while the nameplate generation at unit #1 was 6,600 volt single phase : (apparently this was subsequently altered to 2,400 volt 3-phase). 4. Water, silt and debris entered the oil galleries in the bearing stanchions on all three units. The water was drained out but significant quantities of dirt yet remain in the bearings. There was little rust and no apparent scouring of the shaft as the machines evidently tripped or stalled before the flood water reached the bearings. V ..r ... The only physical damage visible was in a lower stator coil on unit n1 r. #1. There is a good possibility that, with the exception of the above mentioned field coil, all three units would be operable following a thorough internal/external cleaning and oiling. Unit #3 would need a new draft-tube as no trace remains of the original. The powerhouse was heavily damaged on the upstream side; a temporary wall fills in the damaged sections of the building and appears to adequately protect the machinery for the time being. D. Permits The Cascade Diversion Weir was reconstructed after the 1982 flood under a Corps of Engineers 404 permit. In 1987 the Town of Estes Park entered into an agreement whereby the Town must maintain a minimum stream flow in the Fall River of 4 cfs from 1 April through 30 September and is limited to taking only 1.5 efs for the remainder of the year (effectively limiting the plant to a 6 months operating cycle). An additional 404 permit will be required for tail race repairs and embankment stabilization at the powerhouse and a 401 discharge 1 3 permit will probably also be required. Since the Town owns and would continue to own the plant, it is uncertain if the operation of the plant would constitute "interstate commerce" which would subject the installation to regulation by the Federal Energy Regulatory Commission. Other permits regarding dam safety etcetera are probably already held by the Town of Estes Park. A synopsis of State permit requirements is included in the Appendix. E. Hydraulics A stream gauging station was established in 1945 at a point about 2 miles below the plant. This station was in operation until 1953. After 1953, flows in the Fall River have been calculated as being a ratio of flows in the Big Thompson River. For the purposes of calculating the water available for power generation, the last 20 years of synthetic data for the Fall River (Table 1) were averaged (after deleting the highest 10% of the flows as being non-representative). To this, via a 3x weighted average, were entered the actual flow data from 1948 to 1953. This number was then reduced by 5% to account for high readings due to ice and debris. A further reduction of 0.829 was made because the Cascade Diversion structure has a 34 square mile drainage area as opposed to 41 square miles at the stream gauging station (Table 2). F. Output If we assume that there will be a 10% hydraulic friction loss in the pipeline, the dynamic head at the plant will be 360'. With each cubic foot of water weighing 62.4 lbs., there will be 360 x 62.4 = 22,464 ftilbs of energy. At a flow rate of 1 cfs, this will be 22,464 ftilbs/sec, or 40.8 horsepower. Since 1 horsepower is equal to 746 watts, the gross output per cfs would be 30.47 KW. Since these are older machines, the combined hydraulic/electrical efficiency would probably be around 80%. For the purposes of these preliminary calculations, it should thus be assumed that each cfs will produce 24.4 KW of output. If we take the average monthly flows from the preceding section and multiply them by 24.4 KW, we will get KW/month outputs for the plant. For the purposes of these calculations, a year-round 4 cfs minimum streamflow is left in the Fall River. The plant cannot utilize any flow over 36 cfs. The flows in the Fall River are too low to justify operating the plant from 30 September to 1 April. This operating plan is actually an obligation via the agreement between Estes Park and Rocky Mountain National Park; the 1.5 cfs which is usable for power generating is too small to be of consequence (36.5 KW). 4 1 . /1 . . L F 1 rom* Imo G m 10 00 00 01 83 0 N 10 01 0 -1-) CD Â·rl [13 0 4 .P ro Â·,-1 h tr) m N N m 00 \O 10 0 911 (1) 6* 0 Â¢ 1-1 mm*m,-1 1-1 0 ([1 A 1-1 1-1 1-1 0 4, O O Q C U 4-1 05 10 $ 4-) X m rom 1 0.10 rÂ·-1 00 'â€¢0 10 10 â€¢-14' 00 91' t- w 00 10 ([1 'Cl ............ 0 W 914 m m 40 0 10 0 0, O, F .,-1 (D fo ro .C rH r-l Ht- comr-1 a)>0001 .-1 3 4 -P Â·H o Q CO ki ) 0 .54 Z 44 W (D O $-t ro WN- 0 C) 01 00 t C â€¢r-1 > M Q) 01 0 01 v r-1 r-1 01 0 1-1 0 4' 1 â€¢r-1 41 â€¢r-1 01 1 - (11) M N -P U ev r- 4 m m 4, o r- 0, co ,-1 m 4 4-) 0 0 (0 rt ,-1 lD L.fl Ch O rt 4-)r-1 U] h C) 1-1 ,-1 C -1 M 0, 4 -P A (0 A 01 A Ul [1, 4-) Â·H g ro :nul /4 4 4 4 0 (0 - 0 04 m O 0 > tr, M Q Â« 0 4-) mLOLOWOO r--4 mLONOOLO Ma)1#Jo ............ P CorEl e w f m m q o co â€¢r t- m h r-1 moo (D &-1 ,-Imt-oomr-1 4 -1 DO â€¢r ec 4-) ,-1 m 0 01 n #4 4-1 0 -1 0 ro X ca C LO O e .rl 4 ....... .... C P > 0 CA 6-1 kl MIC r-| 01 04 0% 0 004)10 4)(6 04(0 gega) W 4-) E OZO'-OD=tÂ®KE b b<ca * 0 Table 2 Average Flow Rates for Fall River Hydrostation hted BUTBneb moiJ u~weiq.sdn sT 3.UPId se uojlonpea ge/9 10; 628 'O)x(STIqep pue eoT aol ctual 00021%:mr,48000 :6:82@89= >,/0 0, C 4 Z 0009!01828000 OO0~BA# ca I- 00 00 00 D Al 00000000000 36**~E **125!t= 000@ZEZZ@000 31*2222 00Â°85Eg@%10Â°Â° L {08Â£ ~C r-BAN-N %& 41 14 CZ #1 49 9! ~@@31**m '4 9:r'!r:NONOLALAM pr.~82&0444 00 N Al r N O N O F 141 0 AIN,noov#Orqt~uÂ·,râ€¢-1 0 4-1 C.O L L XCJ OC.+1> U 4222-2 3 3 331822 Month Average Flow Usable verage Maximum Average Ener Gross treamflow for Generation Ou:put Output Cap i 60 minute Generation Reve Revenues Diversion per NPS Agrmnt. Output Cap. w/avg. -del jndino anuenea HM>1 0 M>1 99 siD S.L SJ.0 9 TABLE 3 [E@] Monthly Outputs from the Fall River plant are enclosed as Table 3. G. Gross Revenues It is presumed that the Estes Park Municipal Light and Power Department will purchase the output of the hydro station at rates equal to what the Town is paying for as delivered Platte River Power Authority Generation. If the capacity payment is based on the maximum one-hour output of the Fall River Station (which might not coincide with the Town's , peak demand) the capacity payment would be $9,689 per month over the 6 month operating season. If the capacity payment is based upon the average output of the Fall River Station (which probably is a good measure of peak reduction) the capacity payment would vary from $1,124 to $9,689 per month over the 6 month operating season (Table 3). H. Estimated Refurbishment Costs The following (Table 4) are the estimated costs of returning the plant to service. The two unknowns are 1) If the generators actually require full rewinding and 2) If any sort of a FERC permit is required and just what sort of costs and additional regulatory constrictions might be imposed thereby. A more renumerative plan might well be to return only Unit #2 to service at the outset, and then work on returning #1 to service as time and revenues permit. 5 Table 4 Restoration Cost Estimates Powerhouse Building Shell Repairs $ 5,000 Foundation Repairs $ 2,000 Riprap and Embankment $ 1,000 Generator No. 1 Rewind $ 25,000 Generator No. 2 Rewind $ 25,000 Turbine No. 1 Repairs $ 2,500 Turbine No. 2 Repairs $ 2,500 No. 1 Hydraulics $ 5,000 No. 2 Hydraulics $ 5,000 Exciter No. 1 Repairs $ 1,000 Exciter No. 2 Repairs $ 1,000 New Premises Wiring $ 2,000 New Generation/Station Wiring $ 6,000 Refurbished-Used Relays Both Units $ 18,000 Refurbished Used Breakers Both Units $ 9,000 New Pipe to Treatment Plant $ 5,000 Refurbished Used Pump/Treatment Plant $ 4,000 New Pump Wiring $ 2,000 Used Transformers, Main $1 8,000 Miscellaneous & Contingency $ 15,000 $144,000 Permits FERC Exemption Including Legal, Engineering, and Environmental (Assumes no opposition) $ 25,000 National Register of Historic Places Survey $ 2,000 $ 27,000 Miscellaneous House Repairs Plumbing $ 1,500 Carpentry $ 2,500 Electrical $ 1,500 Tools $ 3,000 Vehicle $ 3,000 Other $ 5,000 $ 16,500 Grand Total $187,500 6 I. Estimated Operating Costs From the gross revenues should be subtracted estimated operating costs as per Table 5. Table 5 Capital Expense/Year $24,000 Contract Operator (6 mos./yr.) $15,000 Insurance $ 6,000 Consumables (6 mos./yr.) $ 2,000 Outside Contractors $ 8,000 Replacements (6 mos./yrs) $ 6,000 Legal, Engineering etc. $ 2,000 Total $63,000 3. Estimated Net Revenues By subtracting the operating costs in Article 1 from the Gross Revenues of Article G (Table 3), an estimate of the Net Revenues can be made (average capacity payments as opposed to maximum 1 hour payments are used for this calculation). Gross Operating Net Month Revenues Costs Revenues ($) January 0 3 ,334 (-3,334) February 0 3 ,334 (-3,334) March 0 3,334 (-3,334) April 2,166 7,166 (-5,000) May 16,622 7,166 9,456 June 18,683 7,166 11,517 July 18,683 7,166 11,517 August 14,056 7,166 6,890 September 5,180 7,166 (-1,986) October 0 3 ,334 (-3,334) November : 0 3,334 (-3,334) December 2 3,334 (-3,334) 75,390 63,000 12,390 If maximum 1 hour output capacity payments are made, an additional $19,050 in gross income will be seen. Since there would be no costs associated with this additional income, the net revenues would increase by a similar amount. K. Financing Options The costs of refurbishing the project have been assumed to be borne via borrowed funds at 7.8% with an additional 5% in principal 7 payments on a 10 year note - giving a capital cost of 12.8% of $187,500 or $24,000 per year. This is estimated to be about what the financing costs would be were the city to elect to restore the plant itself. If private capital was to be utilized, a significantly higher rate of return would be required. This would partially be offset via tax credits for the historic structure, depreciation losses, etc. If commercial capital was to be utilized (i.e. a bank loan) the effective capital cost would be about 16% (i.e. 11% interest and 5% in initial principal payments on a 10 year note). It is probable that commercial capital would require at least 20% in equity in this project. The equity participants would require at least as good a terms as the bank, plus the applicable tax credits. L. Lease Terms and Conditions The simplest lease would be a monthly fee tied to the delivered cost of Platte River wholesale power i.e.: a lease of $500/month would split the expected profits without lengthy cost approvals or accounting procedures. If the cost of wholesale power went up 5%, the lease would become $525. Since the revenues are rather slim to the developer while the capital account is in effect, the lease term needs to be long enough to reward him after the capital account is paid off i.e. at least 25 years. It would only be fair if Estes Park were to eventually share in this windfall; after 15 years it would be reasonable if the rent were to double. Estes Park would thus preserve its plant and water rights and eventually have a working plant returned to the Town. M. Level of Assistance Needed from Estes Park To examine the feasibility of a lease arrangement as outlined in Article L, an interim agreement with the Town would be entered into whereby the developer would have a protected time window in which to obtain a FERC ruling regarding the necessity of licensing the installation, as well as engineering data confirming whether full rewinding of the generators is required, or if localized repairs to the few visibly damaged winding would be adequate. The city would need to assist in providing copies of applicable permits which are in hand for the plant, engineering data for existing structures, and appropriate statements to FERC for the initial ruling. After a final cost and permit study was completed, a final lease agreement could be entered into which would effectively split the profits of the installation on some sort of an equitable basis. 8 N. Experience and Involvement with Similar Proiects Eric Jacobson has been involved with most of the significant independent power production facilities in Colorado. This includes the 80 MW American Atlas #1 Cogeneration facility in Rifle, Colorado (Online 1985), the 50 MW Brush Cogeneration Facility (Online 1990), the 68 MW Brush II Cogeneration Facility (Online 1993), the 2.5 MW Fallasborg Hydro project (Online 1986), the 500 KW Bridal Veil Powerstation (Online 1991), the 500 KW Ouray Hydrostation (Online 1993) and the Peach Queen Powerstation (Online 1994). The Bridal Veil Plant is very similar to the Fall River Generating Station in that is was built in 1907 and operated until 1954 when it was abandoned. Heavily vandalized, the plant was declared to be irreparable by Morrison/Knotsen in 1986. E. Jacobson acquired the plant late in 1988 and succeeded in returning the installation to service in 3 summers with a 3 man crew. The plant is presently running. The construction was on time and under budget. Jacobson redeveloped the plant with 100% personal funds - no debt is carried by the plant. The original machine is in service and the original building is on the National Register of Historic Places. Bridal Veil Powerstation is the personal residence of Eric Jacobson. Ouray Hydro station was built in 1904 and operates under 423 feet of head. It was shut down in 1985 after a catastrophic pipe burst and flood. It is presently undergoing restoration and will return to service in April 1993. No debt is carried by the plant. 0. List of Personnel ERIC R. JACOBSON 1974 - 1980 (Winters) Geology and Mining Engineering Western State College, Gunnison, Colorado Hope College, Holland, Michigan 1974 - 1980 (Summers) Rig Builder and Mechanic - Colorado, Texas, Oklahoma. Harris Drilling/Grand Junction, Western Air Drilling/Houston 1981 Soils Engineer (Dams and Large Buildings) Chen & Associates/Glenwood Springs, CO 1982 - 1983 Civil Engineer (Dams, Pipelines & Hydro Plants) Western Engineers/Grand Junction 9 1983 - Present Vice President, Engineering Cogeneration Technology & Development Co. Boulder, Colorado President Hydro-West, Inc. Telluride, Colorado Designed first cogeneration plant in Colorado, formed (in partnership with others) the entities which designed, permitted, developed, financed, constructed and operated the powerstations listed in Article N. A major shareholder and Director of each plant listed in Article N. ROBERT C. PIEKSMA 1978 - 1982 Mechanical Engineering University of California, San Diego 1982 - 1984 Cooling Tower Engineer GEA Power Cooling/Los Angeles 1984 - 1988 Combustion Turbine Engineer Solar Turbines/Los Angeles 1988 - 1991 Hydro Turbine Engineer Hydro-West/Telluride 1991 - Present Cooling Tower Engineer GEA Thermo Dynamics/Denver 1991 - Present Consultant Hydro-West/Telluride Planned and directed generator and turbine and control system refurbishment and upgrades at Bridal Veil Powerstation and Ouray Hydro Station. STEVEN CHIDESTER 1983 - 1987 Architecture & Wooden Boat Construction College of the Atlantic/Bar Harbor 1987 - Present Building Restoration Consultant Hydro-West/Telluride Planned and directed building refurbishment and upgrades at Bridal Veil Powerstation and Ouray Hydrostation. 10 . SUZANNE M. COLEMAN 1983 - 1987 Biology University of Colorado, Boulder 1988 - 1990 Office Coordinator Colorado Venture Management Boulder, Colorado 1990 - 1991 Office Manager Cogen Technology, Inc. Boulder, Colorado 1991 - Present Manager Hydro-West, Inc. Telluride, CO Coordinated billing and revenues at 80 MW powerplant. Coordinated funding, permitting and billing at 50 MW powerplant and assisted in development of 68 MW powerplant. Presently coordinates funding, permitting, billing, and expenditures for the various Western Slope hydro installations under Hydro-West. 11 TOWN OF ESTES PARK September 9, 1992 OFFICE MEMORANDUM TO: Light and Power Committee FROM: Richard E. Matzke 722.97- SUBJECT: Public Service Co. Gas Franchise Proposed Schedule for Consideration by Town Board Attached is a draft franchise agreement (and summary of changes) to operate a gas distribution system within public rights-of-way between the Town of Estes Park and Public Service Company of Colorado. The previous agreement expired on August 13, 1992. The major changes in the new agreement are: 1. Reducing the term from 25 years to 20 years 2. Increasing the franchise fee to the Town from 2% to 3% 3. Town has Right of First Refusal to Purchase if Public Service Co. elects to sell the gas system. Following is a proposed schedule for consideration of this agreement by the Town Board: ~~1, 1 Next LuP Review of final proposed ordinance granting Meeting franchise. 10/13/92 First reading of final proposed ordinance in its entirety at regular meeting of the Town Board. Notice of intent to apply for the franchise must be published three consecutive weeks prior to the meeting in the local newspaper. Public comment m*y 120' allowed at this meeting. No Board action required at this meeting other than decision to continue with process. 11/10/92 Second reading of ordinance at regular meeting of Town Board. The proposed ordinance must be published weekly in the local newspaper for two consecutive weeks prior to this meeting. Public comment may be allowed at this meeting. The Board may vote at this meeting whether or not to adopt this ordinance. Passage requires affirmative votes from four voting board members. The ordinance shall not become effective until thirty days after final pu-blieatÂ·ion-in the local newspaper after passage. - -I=, - 3-Z-*A,2 2-1 2 Following passage by the Town Board and acceptance by Public Service CO., Public Service must file an application for Certificate of Public Convenience and Necessity with the Public Utility Commission of Colorado for final approval of the franchise agreement. Public Service Co. will pay all publishing costs and attorney's fees incurred by the Town in granting of this franchise application. The Light and Power Department recommends that this agreement be forwarded to the Town Board for their consideration. REM 2-2 /2 1,} . , , I . ' t,Â·2 335< 1 .t 1 / Dll t BOARD BILL NO.: IN ORDINANCE NO.: 3., - AN ORDINANCE GRANTING A FRANCHISE BY THE TOWN OF ESTES PARK TO . PUBLIC SERVICE COMPANY OF COLORADO, ITS SUCCESSORS AND ASSIGNS, THE RIGHT TO FURNISH, SELL AND DISTRIBUTE GAS TO THE TOWN AND TO ALL il'. PERSONS, BUSINESSES, AND INDUSTRY WITHIN THE TOWN AND THE RIGHT TO ACQUIRE, CONSTRUCT, INSTALL, LOCATE, MAINTAIN, OPERATE AND EXTEND INTO, WITHIN AND THROUGH SAID TOWN ALL FACILITIES REASONABLY '.4 NECESSARY TO FURNISH, SELL AND DISTRIBUTE GAS WITHIN THE TOWN AND 0, , tÂ· THE RIGHT TO MAKE REASONABLE USE OF ALL STREETS AND OTHER PUBLIC â‚¬. PLACES AND PUBLIC EASEMENTS AS HEREIN DEFINED AS MAY BE NECESSARY; AND FIXING THE TERMS AND CONDITIONS THEREOF. i .4 1 2 3 ...t i. bl 0, 'lit / , * i 1 1 -2 - 6913 1 4 2-3 Lâ‚¬ ...t L. :-4 1 I , 4 e Â·t ' 1. a TABLE OF CONTENTS 3 1. DEFINITIONS . ...................... 2. GRANT OF FRANCHISE . . . ................ 2.1 Grant of Franchise ..... ......... 2.2 Term of Franchise ... ......... .. 4 , 3. FRANCHISE FEE . . .................... 4 3.1 Franchise Fee ................ . 3.2 Payment Schedule . ........... ... 5 â€¢ ..1 3.3 Change of Franchise Fee and Other Franchise Terms .................... Â¢ 4, ' 3.4 Franchise Fee Payment in Lieu of Other Fees . 6 4. SUPPLY, CONSTRUCTION AND DESIGN . . ........... 7 4.1 Supply of Gas .... ............ 7 1. 4.2 Restoration of Service . .......... . 7 4.3 Obligations Regarding Company Facilities ... 7 r- 1 4.4 Excavation and Construction ........ . 8 r .. 1 PR I, 4.5 Relocation of Company Facilities . . ..... 8 4.6 Service to New Areas . . .......... . 9 4.7 Town Not Required to Advance Funds . ..... 4.8 Technological Improvements ... ....... 9 , 5. COMPLIANCE . ..................... 10 5.1 Town Regulation . . ............ 10 5.2 Compliance With Town Requirements ..... 10 . .k-, 11 Â· 5.3 Town Review of Construction and Design ... 5.4 Compliance with PUC Regulations ...... 11 5.5 Compliance With Air and Water Pollution Laws 12 5.6 Inspection .... ............. 12 6. PUBLIC UTILITIES COMMISSION . . ............ 12 6.1 Public Utilities Commission Regulation ... 12 7. REPORTS TO TOWN ... ................. 13 7.1 Reports on Company Operations . . ..... 13 7.2 Copies of Tariffs, All PUC Filings ..... 13 8. INDEMNIFICATION OF THE TOWN . ............. 14 8.1 Town Held Harmless ... .......... 14 - 8.2 Payment of Expenses Incurred by Town in I 2 Relation to Ordinance ... ........ 14 . . J, 9. TRANSFER OF FRANCHISE ................. 15 2. , 9.1 Consent of Town Required ...... .... 15 Transfer Fee ... ............. 9.2 15 fi, 1,1 '1 A. t: -i- + 2-4 . .Â· I T .4,-Ee - '.1 F 04 , I I. i . 1, C 4- 4 1 t, 6 { i l' iÂ· 10. PURCHASE OR CONDEMNATION . .............. 16 10.1 Town's Right to Purchase or Condemn .... 16 Continued Cooperation bv Company ...... 10.2 16 11. REMOVAL OF COMPANY FACILITIES AT END OF FRANCHISE . . 17 11.1 Limitations on Company Removal ....... 17 . I 12. TRANSPORTATION OF GAS ... ............. 18 b 12.1 Transportation of Gas ........... 18 L 13. FORFEITURE ... ................... 18 13.1 Forfeiture . . ............... 18 19 13.2 Judicial Review . ............. 13.3 Other Legal Remedies . . .......... 19 13.4 Continued Obligations . . ......... 19 1% 14. AMENDMENTS ...................... 20 4. 14.1 Amendments to Franchise ... ....... 20 i 15. MISCELLANEOUS . . ................... 20 6. i 15.1 Successors and Assigns . .......... 20 15.2 Third Parties ... ............ 20 .) ' 15.3 Representatives .............. 21 4. 15.4 Severability ... ............. 21 15.5 Entire Agreement ... ........... 22 16. APPROVAL . ...................... 22 i 16.1 Board Approval . . ............. 22 16.2 Company Approval ......... ..... 22 R 'Â·. 4 1 i. E- A.7. , 1. . 4,# . 4, It -ii- tâ€¢ .â‚¬ '. , 2-5 Â£ M 4 '. f 1-0,4 -Fr , '.'PYWT-4.-f..'I ' 0 i â€¢ 'â€¢Il. t .9 14 P . 7 7 t . 4 L.; ' . BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES PARK, Â¢ 1 .1 COLORADO: I 4 . ARTICLE 1 Â·lip ~ DEFINITIONS , i . 1 1) Â§1.0 For the purpose of this franchise, the following words and phrases shall have the meaning given in this article. When not 1...af . 1 inconsistent with the context, words used in the present tense 4 include the future tense, words in the plural number include the .... i i singular number, and words in the singular number include the plural number. The word "shall" is mandatory and "may" is r , permissive. Words not defined in this artic1e 'shall be given their P /i' 4 - Â· e common and ordinary meaning. 1.1 "Board" or "Board of Trustees" refers to and is the Â» legislative body of the Town. P f 1 J.'. 1.2 "Company" refers to and is Public Service Company of Colorado, I. id and its successors and assigns, but does not include its I . affiliates, subsidiaries or any other entity in which it has an ownership interest. 1.3 "Distribution Facilities" refers to and is only that portion - . . E . i of the Company's gas system which delivers gas from the down side . 6' ': 1 Â· of the regulator station to the point-of-delivery of the customer, 72 . . including all devices connected to that system. 1 F ./ 4 -1- . et . .5 2-6 . i . . 1. ., I 1.4 "Facilities" refer to and are all facilities reasonably necessary to provide gas into, within and through the Town and include plants, works, systems, lines, equipment, pipes, mains, gas compressors and meters. h â€¢ t , 1.5 "Gas" or "Natural Gas" refers to and is such gaseous fuels as ' natural, artificial, synthetic, liquefied natural, liquefied petroleum, manufactured, or any mixture thereof. f . 10 I. i 4 . â‚¬ a , 1.6 "Public Easements" refer to and are public and dedicated 5 . 114 ' jk easements created and available for use by investor-owned, or other J i public utilities for their facilities. .t 1.7 "Public Utilities Commission" or "PUC" refers to and is the ' r., .1 Public Utilities Commission of the State of Colorado or other to the Public authority succeeding the regulatory powers of t i Utilities Commission. 1 I. r 1.8 "Residents" refers to and includes all persons, businesses, i i industry, governmental agencies, and any other entity whatsoever, presently located or to be hereinafter located, in whole or in t part, within the territorial boundaries of the Town. ti 1.9 "Revenues" refer to and are those amounts of money which the 4 1 Company receives from its customers within the Town from the sale J -2- 2-7 41 ./ :t I 7 -1Â· t ./ 4 4 I $ 1. 11,/'. I f 49 i i A* 4 2 .. .4 1 . 4 . 1 U. I of gas under rates authorized by the Public Utilities Commission as well as from the transportation of gas to its customers within the Town and represents amounts billed under such rates as adjusted for refunds, the net write-off of uncollectible accounts, corrections or other regulatory adjustments. .j 1. 10 "Town" refers to and is the municipal corporation designated .i, as the Town of Estes Park, Larimer County, Colorado and includes the territory as currently is or may in the future be included 2 f <4; within the boundaries of the Town of Estes Park. 44:*F. 1 2/000 1.11 "Streets and Other Public Plates" refer to and are streets, - L alleys, viaducts, bridges, roads, lanes and other public places in 2,/: Â· said Town. : ARTICLE 2 GRANT OF FIZANCIIISE C '5 5 Â§2.1 Grant of Franchise. The Town of Estes Park hereby grants to Public Service Company, for the period specified in and subject tu. 74 , the conditions, terms and provisions contained in this to franchise, a non-exclusive right to furnish, sell and distribute 'i & , gas to the Town and to all residents of the Town. Subject to the 4. conditions, terms and provisions contained in this franchise, the , -3- 1â€¢ I. 2-8 A . 411 9 1 1 Il-11 - , . ' rt 11.1 1 ..46 Town also hereby grants to the Company a non-exclusive right to acquire, construct, install, locate, maintain, operate and extend 1 into, within and through the Town all facilities reasonably t.,f ~t necessary to furnish, sell and distribute gas within and through 7 L. .1,141 h the Town and a non-exclusive right to make reasonable use of the streets and other public places and public easements as may be i , necessary to carry out the terms of this franchise. These rights shall extend to all areas of the Town as it is now constituted and 3 2. r 4 to additional areas as the Town may increase in size by annexation ry or otherwise. Â§2.2 Term of Franchise. This franchise shall take effect on . The term of this franchise shall be for 25 f. years, beginning with said effective date of this franchise and expiring on ARTICLE 3 ' 1 i 4 9 FRANCHISE FEE 1. d I I ' 9, Â§3.1 Franchise Fee. In consideration for the grant of this franchise, the Company shall pay the Town a sum equal to two k .2 1: ,r 64 percent ~4~ of all revenues received from the sale and transpor- ,: 7 ' i tation of gas within the Town, excluding revenues received from the / M y Town for the sale of gas to the Town. :It 7 29 - 4 - #7 . r g /1 F:Ii, 1 . 2-9 11 . . I:' 2-4 - ...t. . 6 - Fi i k / . i . 34Â» /6 ! Â§3.2 Payment Schedule. For the franchise fee owed on revenues received after the effective date of this franchise, payment shall '7 be made in monthly installments not more than thirty days following the close of the month for which payment is to be made. Initial â€¢ and final payments shall be prorated for the portions of the months at the beginning and end of the term of this ordinance. All payments shall be made to the Town Finance Director. The Town ~ Finance Director, or other authorized representatives, shall have access to the books of the Company for the purpose of auditing or checking to ascertain that the franchise fee has been correctly 49 . 4 computed and paid. In the event an error by the Company results in an overpayment of the franchise fee to the Town and said overpayment t is in excess of $5,000, credit for the overpayment shall be spread over the same period the error was undiscovered. If the overpayment is $5,000 or less, credit shall be taken against the , next payment. 13Â¥., dll. Â§3.3 Change of Franchise Fee and Other Franchise Terms. Once .I t,Â· during each calendar year of the franchise term the Town Board, GE i., ' upon giving 30 days notice to the Company of its intention so to 44~ . do, may review and change the consideration the Town may be entitled to receive as a part of the franchise; provided, however, C 10 tl:., 4 the Board may only change the consideration to be received by the f -11 .4 : Town under the terms of this franchise to the equivalent of the , 0,4 -5- 2-10 . 1,61 a. '}. 1.4./ I i + t. 5,4,1. 1 2 Â·cr ..~.1 ...:6 'L -; Li ' - W '.r trl consideration paid by the Company to any city or town in the State of Colorado in which the Company supplies gas under franchise. The Company shall, upon request, report to the Town 4 within sixty (60) days of the execution of a subsequent franchise I i or of any change of franchise in other municipalities that could : have a significant financial impact on the consideration to be paid by the Company to the Town hereunder. If the Town Board decides + /:. 1 1'1& 11 ' the consideration shall be so changed, it shall provide for such change by Ordinance; provided, however, that any change in the franchise fee is then allowed to be surcharged by the Company; and provided, further, that the consideration is not higher than the 4 2,Â·: 1 highest consideration paid by the Company to any municipality within the State of Colorado. For purposes of this section, I . 1 4 consideration means the franchise fee established in Article 3, ;4~~f Section 1; and also includes any other provision which is of similar significant financial benefit to the Town. Â§3.4 Franchise Fee Payment in Lieu of Other Fees. Payment of ' the franchise fee by the Company is accepted by the Town in lieu of any occupancy tax, license tax, permit charge, inspection fee, or similar tax on the privilege of doing business or in connection with the physical operation thereof, but does not exempt the Company from any lawful taxation upon its property or any other tax not related to the franchise or the physical operation thereof and 4.4.. 2-11 24. 5- ..42,1 ,a 2 ,- ..1J-,1, - ..4 I - 4.-2 .4 44+ Â·4 1 1 72 . 1,..I does not exempt the Company from payment of head taxes or other 4Â· , fees or taxes assessed generally upon businesses. 4, "-ti 47 4 Â·; 9 1 ARTICLE 4 b j SUPPLY, CONSTRUCTION AND DESIGN Â§4.1 Supply of Gas. The Company shall take all reasonable and necessary steps to provide an adequate supply of gas to its customers at the lowest reasonable cost consistent with long-term r 1 ' 4 / reliable supplies. If the supply of gas to its customers should be interrupted, the Company shall take all necessary and reasonable 1. .1. Â· actions to restore such supply within the shortest practicable .r # ' I b'%51+ ~ time. 1 7 tb tâ€¢ Â§4.2 Restoration of Service. In the event the Company's gas , system, or any part thereof, is partially or wholly destroyed or 1 .1 incapacitated, the Company shall use due diligence to restore its system to satisfactory service within the shortest practicable . time. ! ' 9 ti Â§4.3 Obligations Reqardinq Company Facilities. The Company shall install, maintain, repair, renovate and replace its facil- ities with due diligence in a good and workmanlike manner and the - 7 Company's facilities will be of sufficient quality and durability -7- 2-12 -4.4., i L r to provide adequate and efficient gas service to the Town and its residents. Company facilities shall not interfere with the Town's ti E , - , i water mains, .sewer main~or other municipal use of streets and C-- r e. other public places. The Company shall erect and maintain its Â· Â· facilities in such a way so as to minimize interference with trees 1. l.': and other natural features. Company facilities shall be installed in public easements so as to cause a minimal amount of interference with such property. dÂ· ; r Â· 7 Â§4.4 Excavation and Construction. All excavation and construction work done by the Company shall be done in a timely and expeditious manner which minimizes the inconvenience to the public and individuals. All public and private property whose use d Â· ri 4 -z conforms to restrictions in public easements disturbed by Company It I excavation or construction activities shall be restored by the 1 Company at its expense to substantially its former condition. i! Â§4.5 Relocation of Company Facilities. Any relocation of the Company's facilities in any street or other public place required, caused or occasioned by any Town project shall be at the cost of the Company. Relocation shall be completed within a reasonable 4 time from the date when the Town makes its request, such time to be established by the Company as soon as possible after the Town's request. The Company shall be granted an extension of time of 7 ..4 M j completion equivalent to any delay caused by conditions not under 1 4 ; 1 -8- 2-13 . +. 1 I . f its control provided that the Company proceeds with due diligence at all times. Â§4.6 Service to New Areas. If the boundaries of the Town are .1 : expanded during the term of this franchise, the Company shall 1 .e 1 extend service to residents in the expanded area at the earliest 4..Â·T r. L * practicable time and in accordance with the Company' s extension policy. Service to the expanded area shall be in accordance with the terms of this franchise agreement, including payment of r. 24 1! ft franchise fees. Â§4.7 Town Not Required to Advance Funds. Upon receipt of the . 1... 1. 1 Town's authorization for billing and construction, the Company r . shall extend its facilities to provide gas to the Town for ' municipal uses within the Town limits or for any major municipal facility outside the Town limits, and within the Company certificated service area, without requiring the Town to advance funds prior to construction. Â§4.8 Technological Improvements. The Company shall generally 4 4 introduce and install, ,as soon as practicable, gas technological advances in its equipment and service within the Town when such advances are technically and economically feasible and are safe and beneficial to the Town and its residents. Upon request by the L Town, the Company shall review and promptly report advances which -9- 2-14 # I . 4 . have occurred in the gas industry that have been incorporated into the Company's operations in the Town in the previous year or will 1 . 4 be so incorporated in the six months following the Town's request. ARTICLE 5 i . COMPLIANCE '181 , .. f j Â§5.1 Town Regulation. The Town expressly reserves, and the Company expressly recognizes, the Town's right and duty to adopt, from time to time, in addition to the provisions herein contained, ordinances and rules and regulations as may by the Town be deemed necessary in the exercise of its police power for the protection of f 1- the health, safety and welfare of its citizens. Â§5.2 Compliance With Town Requirements. The Company will comply with all Town requirements regarding curb and pavement cuts, k excavating, digging and related construction activities. lf- F 1/ ~equeS-ted_hy-the-Tewn-; the Company shall submit copies of reports of annual and long-term planning for capital improvement projects&32/ I , with descriptions of required street cuts, excavation, digging and ' related construction activities within 30 days after issuance. Except for emergencies, the Town may require that all installations be coordinated with the Town's street improvement programs. The Town Director of Public Works shall be the Town's agent for - 10 - 2-15 rli-Â·' .t inspection and for compliance with Town ordinances and regulations on any such projects. Â§5.3 Town Review of Construction and Design. Prior to construction of any significant gas facilities above ground or, for 9 building or similar structures within the Town, if requested by the Town, the Company shall furnish to the Town the plans for such facilities. In addition, the Company shall assess and report on the impact of such proposed construction on the Town environment. Such plans and reports may be reviewed by the Town to ascertain, inter alia, (1) that all applicable laws including building and \ zoning codes and air and water pollution regulations are complied with, (2) that aesthetic and good planning principles have been given due consideration', and (3) that adverse impact on the environment has been minimized. Â§5.4 Compliance with PUC Regulations. The gas which the Company distributes shall conform with the standards promulgated by the Public Utilities Commission in the Rules Regulating the Service of Gas and with the tariff provisions of the Company setting stan- dards, as the same may be amended from time to time. i , - 11 - 2-16 t 1 i 2# ,, 64 Â§5.5 Compliance With Air and Water Pollution Laws. The Company shall use its best efforts to take measures which will I result in its facilities meeting the standards required by t; applicable Federal and State air and water pollution laws. Upon 4 the Town's request, the Company will provide the Town with a status report of such measures. , T. Â§5.6 Inspection. The Town shall have the right to inspect at p all reasonable times any portion of the Company's system used to serve the Town and its residents. The Town shall also have access to Company records for the purpose of determining Company 4 compliance with this franchise. The Company agrees to cooperate with the Town in conducting the inspection and to correct any discrepancies affecting the Town's interest in a prompt and efficient manner. ARTICLE 6 . PUBLIC UTILITIES COMMISSION Â§6.1 Public Utilities Commission Regulation. The Town and the Company recognize that the lawful provisions of the Company's tariffs on file and in effect with the Public Utilities Commission which are consistent with the restrictions and limitations of 2â€¢ Article XXV of the Colorado Constitution regarding the rights of ../ - 12 - 2-17 . municipalities to franchise are controlling over any inconsistent provision in this franchise dealing with the same subject matter. i In the opinion of the Company, no provision of this franchise is inconsistent with any of the currently effective provisions of the Company's tariffs. 1 ARTICLE 7 REPORTS TO TOWN B. Â§7.1 Reports on Company Operations. The Company shall submit reasonable and necessary reports containing or based on information readily obtainable from the Company's books and records as the Town may request with respect to the operations of the Company under this franchise and provide the Town with a list of real property within the Town which is owned by the Company. Â§7.2 Copies of Tariffs, All PUC Filings. The Company shall keep on file in a local Company office, all tariffs, rules, regulations and policies approved by the Public Utilities Commission relating to service by the Company to the Town and its residents. Upon request by the Town, the Company shall provide the '. Town with copies of filings affecting said service which it makes with the PUC. t 1.3 <AM,#Fl - 13 - 2-18 . ARTICLE 8 INDEMNIFICATION OF THE TOWN Â§8.1 Town Held Harmless. The Company shall indemnify, defend and save the Town harmless from and against all liability or damage and all claims or demands whatsoever in nature arising out of the operations of the Company within the Town pursuant to this franchise and the securing of and the exercise by the Company of the franchise rights granted in this ordinance and shall pay all reasonable expenses~arising therefrom. The Town will provide prompt written notice to the Company of the pendency of any claim or action against the Town arising out of the exercise by the Company of its franchise rights. The Company will be permitted, at its own expense, to appear and defend or to assist in defense of such claim. Notwithstanding any provision hereof to the contrary, the Company shall not be obligated to indemnify, defend or hold the Town harmless to the extent any claim, demand or lien arises out of or in connection with any negligent act or failure to act of the Town or any of its officers or employees. Â§8.2 Payment of Expenses Incurred bv Town in Relation to Ordinance. At the Town's option, the Company shall pay in advance or reimburse the Town for expenses incurred in publication of - 14 - 2-19 , , 1 notices and ordinances and for photocopying of documents arising out of the negotiations or process for obtaining the franchise. ARTICLE 9 TRANSFER OF FRANCHISE Â§9.1 Consent of Town Required. The Company shall not transfer or assign any rights under this franchise to a third party, excepting only corporate reorganizations of the Company not including a third party, unless the Town shall approve in writing such transfer or assignment. Approval of the transfer or assignment shall not be unreasonably withheld. Â§9.2 Transfer Fee. In order that the Town may share in the value this franchise adds to the Company's operation, any such transfer or assignment of rights under this franchise requiring the approval of the Town shall be subject to the conditions that the transferee shall promptly pay to Estes Park a pro rata share of one million dollars, which pro rata amount of one million dollars shall be calculated by multiplying one million dollars times a fraction of which the then population of Estes Park is the numerator and the then population of the City and County of Denver is the denominator. Such transfer fee shall not be recovered from the Town or from the Town residents or property owners through gas - 15 - 2-20 rates of customers in Estes Park or by surcharge by the transferee or the Company. ARTICLE 10 PURCHASE OR CONDEMNATION Â§10.1 Town's Right to Purchase or Condemn. The right of the Town to construct, purchase or condemn any public utility works or ways, and the rights of the Company in connection therewith, as provided by the Colorado Constitution and statutes, are hereby expressly reserved. Â§10.2 Continued Cooperation by Company. In the event the Town exercises its option to purchase or condemn, the Company agrees that, at the Town's request, it will continue to supply any service it supplies under this franchise, for the duration of the term of this franchise pursuant to terms and conditions negotiated for such continued operation. - 16 - 2-21 ARTICLE 11 REMOVAL OF COMPANY FACILITIES AT END OF FRANCHISE Â§11.1 Limitations on Company Removal. In the event this franchise is not renewed at the expiration of its term or the Company terminates any service provided herein for any reason whatsoever, and the Town has not purchased or condemned the system and has not provided for alternative gas service, the Company shall have no right to remove said system pending resolution of the disposition of the system. The Company further agrees it will not withhold any temporary services necessary to protect the public and shall be entitled only to monetary compensation in no greater amount than it would have been entitled to were such services provided during the term of this Franchise. Only upon receipt of written notice from the Town stating that the Town has adequate alternative gas sources to provide for the people of the Town shall the Company be entitled to remove any or all of said systems in use under the terms of this franchise. - 17 - 2-22 ARTICLE 12 ' TRANSPORTATION OF GAS Â§12.1 Transportation of Gas. The Town expressly reserves the right to obtain or produce gas. The Company shall transport natural gas purchased by the Town for use in Town facilities pursuant to separate contracts with the Town. The Company agrees to transport gas made available for sale on terms and conditions comparable to other contracts entered into contemporaneously by the Company with similarly situated customers. ARTICLE 13 FORFEITURE Â§13.1 Forfeiture. Both the Company and the Town recognize there may be circumstances whereby compliance with the provisions of this franchise is impossible or is delayed because of circum- stances beyond the Company's control. In those instances, the Company shall use its best efforts to comply in a timely manner and to the extent possible. If the Company fails to perform any of the terms and conditions of this franchise and such failure is within the Company's control, the Town, acting by and through its Board, may determine, after hearing, that such failure is of a substantial - 18 - 2-23 nature. Upon receiving notice of such determination, the Company shall have a reasonable time in which to remedy the violations. If during said reasonable time corrective actions have not been successfully taken, the Town acting by and through its Board, shall determine whether any or all rights and privileges granted the Company under this ordinance shall be forfeited. Â§13.2 Judicial Review. Any such declaration of forfeiture shall be subject to judicial review as provided by law. Â§13.3 Other Leqal Remedies. Nothing herein contained shall limit or restrict any legal rights that the Town or the Company may possess arising from any alleged violation of this franchise. Â§13.4 Continued Obligations. Upon forfeiture, the Company shall continue to provide service to the Town and its residents in accordance with the terms hereof until the Town makes alternative arrangements for such service. If the Company fails to provide continued service, it shall be liable for damages to the Town. - 19 - 2-24 ARTICLE 14 AMENDMENTS Â§14.1 Amendments to Franchise. At any time during the term of this franchise, the Town, through its Town Board, or the Company may propose amendments to this franchise by giving 30 days' written notice to the other of the proposed amendment(s) desired and both parties thereafter, through their designated representatives, will negotiate within a reasonable time in good faith in an effort to agree on mutually satisfactory amendment(s). The word "amendment" as used in this section does not include a change authorized in Â§3.3. ARTICLE 15 MISCELLANEOUS Â§15.1 Successors and Assigns. The rights, privileges, franchises and obligations granted and contained in this ordinance shall inure to the benefit of and be binding upon Public Service Company, its successors and assigns. Â§15.2 Third Parties. Nothing contained in this franchise shall be construed to provide rights to third parties. - 20 - 2-25 Â§15.3 Representatives. Both parties shall designate from time to time in writing representatives for the Company and the Town who will be the persons to whom notices shall be sent regarding any action to be taken under this ordinance. Notice shall be in writing and forwarded by certified mail or hand delivery to the persons and addresses as hereinafter stated, unless the persons and addresses are changed at the written request of either party, delivered in person or by certified mail. Until any such change shall hereafter be made, notices shall be sent to the Town Mayor and to the Company's Northern Division Manager. Currently the addresses are as follows: For the Town of Estes Park: Town Mayor Town of Estes Park P.O. Box 1200 Estes Park, Colorado 80517 For the Company: Northern Division Manager 299-Meldrum---Street /90' Â£Â· NcesÂ£*E/l, po/ P 0 -Be*-16 6 8Â· Fort Collins, Colorado 805203- Â§15.4 Severability. Should any one or more provisions of this franchise be determined to be illegal or unenforceable, aIl other provisions nevertheless shall remain effective; provided, however, the parties shall forthwith enter into good faith negotiations and - 21 - 2-26 proceed with due diligence to draft a term that will achieve the original intent of the parties hereunder. Â§15.5 Entire Agreement. This franchise constitutes the entire agreement of the parties. There have been no representations made other than those contained in this franchise. ARTICLE 16 APPROVAL Â§16.1 Board Approval. This grant of franchise shall not become effective unless approved by a majority vote of the Town Board. Â§16.2 . Company Approval. The Company shall file with the Town Clerk its written acceptance of this franchise and of all of its terms and provisions within ten days after the adoption of this franchise by the Town Board. The acceptance shall be in form and content approved by the Town Attorney. If the Company shall fail to timely file its written acceptance as herein provided, this franchise shall be and become null and void. - 22 - 2-27 . INTRODUCED, READ AND ORDERED PUBLISHED this day of / r . PASSED, ADOPTED AND APPROVED this day of , Mayor ATTEST: Town Clerk APPROVED AS TO FORM: Town Attorney Publication Dates: 6913 - 23 - 2-28 f ./ NEGOTIATED CHANGES FOR ESTES PARK FRANCHISE 1.11 (Change 1st sentence) Public places to public right-of-ways 2.2 (Change) 20 years 3.1 (Change) 3% 3.4 Wording will not change but will pay the $200/year fee. 4.1 (Add at bottom of paragraph) "The Company shall use reasonable efforts to obtain future gas supplies to meet future long term needs within the Town" 4.3 (Delete in 2nd sentence) "sewer mains" (Change) Public places to Right of Way. (Add to last sentence of paragraph) "...and any other utilities located within said public easements" 5.2 (Change 1st sentence) "The Company shall comply with all Town ordinances, rules and regulations and all Town requirements regarding curb and pavement cuts, excavating, digging and related construction activities" (Delete) "If requested by the Town" (2nd sentence) (Add) "including main extensions" ( after "projects" in second sentence). (Add to bottom of paragraph) "The Company shall require any contractor doing work for the Company to comply with the terms and conditions of this section" a:EPFranch/September 9, 1992 t 5.3 (Delete) "if requested by the Town" (lst sentence) (Add to end of paragraph) "The Company shall consider all reasonable changes requested by the Town" 5.5 (Change) " ... air, water and environmental pollution laws in the construction and operation of its facilities within the Town" ( may change environmental) (Delete in 2nd sentence) "Upon the Town's request" (Add at end of last sentence) "including a copy of any written notification received by the Company from a regulatory agency of any violation within the Town" Emergencies 7.3 (New) "If there is a major system outage affecting operations or service, the Company shall notify the Town as to the nature of the problem and its anticipated duration and resolution. The Company shall develop and keep up-to-date and on file with the Town a mutually agreeable plan to facilitate such communication" 8.1 (Add at end of 1st sentence) reasonable expenses, including reasonable attorneys' fees, court costs and expert witness fees arising theref rom" 8.2 No change in verbiage but will pay "reasonable" fees through letter of agreement. 10.3 (New) "Right of 1st refusal" ( see notes) a:EPFranch/September 9, 1992 15.3 (Change) Change to Town Administrator, not Town Mayor. 15.6 (New) "The Company is operating as an independent contractor pursuant to the terms and conditions of this franchise agreement and not as an agent of the Town" 15.7 (New) "Insurance The parties to this franchise agreement agree that the Town is relying on, and does not waive, by any provisions of this franchise agreement, the monetary limitations or terms (presently $150,000.00 per person and $400,000.00 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, 24-10-101 et. seq., C.R.S., as fram time to time amended or otherwise available to the Town or any of its officers, agents or employees." PSCo will add new language to protect liability beyond Town's limitations. 16.1 (Change) "The grant of this franchise shall not become effective unless approved by the Town in accordance with the applicable statutory provisions governing the granting Of this franchise" a:EPFranch/September 9, 1992 - , 31-32-101 Government - Municipal . 31-32-104. Majority vote required for PART2 passage. PUBLIC UTILITIES - ACQUISITION. 31-32-105. Cities or towns may erect utili- ties. METHOD 31-32-201. Financing acquisition of Ulli)- ties. PART 1 PUBLIC UTILITIES - FRANCHISES Cross references: For requirement that a municipality be made a party in any proceeding invols. ing the validity of an ordinance or franchise and that the attorney general be served with a c(,p; in any proceeding involving the constitutionality of an ordinance or franchise, see Â§13-51-11 ~ and Rule 570), C.R.C.P. 31-32-101. Franchise granted by ordinance. No franchise or license giving or granting to any person the right or privilege to erect, construct, operate, or maintain a street railway, electric light plant or system, gasworks, gas plant or system, geothermal system, solar system, or telegraph or telephone system within any city or town or to use the streets or alleys of a city or town for such purposes shall be granted or given by any city or town in this State in any other manner or form than by an ordinance passed and published in the manner set forth in this part 1. Source: R & RE, L. 75, p. 1243, Â§ 1. Am. Jur.2d. See 36 Am. Jur.2d, Franchises, A town organized under the general law is not Â§ 38; 64 Am. Jur.2d, Public Utilities, empowered by this section to prescribe the ratej Â§ Â§ 102-104. which a street railway company occupying the C.J.S. See 37 C.J.S., Franchises, Â§ 14; 62 street under a franchise of the town may exact C.J.S., Municipal Corporations, Â§ 258; 73B for its service. Denver & S. Pac. Ry. v. Cit> 01 C.J.S., Public Utilities, Â§ 69. Englewood, 62 Colo. 229,161 P. 151 (1916) The only specific power conferred by this Applied in Inland Util. Co. v. Schell. 8- 4 section is to grant a franchise in the form of an Colo. 73,285 P. 771 (1930). ordinance. Denver & S. Pac. Ry. v. City of Englewood, 62 Colo. 229, 161 P. 151 (1916). 31-32-102. Notice of application - publication. Any person desiring to secure a franchise or license for any of the purposes named in section 31-32-101 shall cause a notice of its intention to apply to the governing bod> of the city or town for the passage of an ordinance granting such franchise or license. Notice shall be published, in a n~inaper of general circulation published in suchcity or town, once a_week for three successive weeki immediately prior to the next regulaunrpting of the governingbody at which it is intende-toapply for the passage of the ordinance granting or giving. such franchise or license. Such notice shall specify the regular meeting of the governing body at which it is intended to apply for such franchise or license, the name of the applicant therefor, a general description of the rights and privileges to be applied for, and the time for and terms upon which such franchise or license is desired. If there is no newspaper of general circu- lation published within the city or town, such notice may be published b} posting copies thereof in six public places for the same length of time. i Source: R & RE, L. 75, p. 1243, Â§ 1. -,w Â·A ." Â·a-= u "ig.. 4.â€ž,9 - ~I.i, i 49~~Iâ€¢-4/,.~1-54 . 94Â»0'4%1'*ENIAR*NivheeÂ»Â»%)45~ret:,~*47*,~Â·:*40444''PÂ». ,/92:ke'RM 1WUÂ·:724Â·4'4-7Â»VÂ· F -fyÂ·/-:17,rn,/777"v" t,i,vijll//9/-2 7.-Il/:-6'-37Â£- ~prÂ·r'9,.11Â¥~ 4.99! â€¢' :7+ raÂ·'re"5:,â€¢Â·'-Df 401,' U tilities 31-32-105 Am. Jur.2d. See 36 Am. Jur.2d, Franchises, C.J.S. See 37 C.J.S., Franchises. Â§ 10; 64 Â§ 25. C.J.S., Municipal Corporations Â§ Â§ 1728- 1730. S 31-32-103. Ordinance read twice - publication before passage. Every such ordinance shall be read at least twice in full, once at the time of its introduc- tion and again before the question of its passage is voted upon. No governing T body of any city or town shall permit any such ordinance to be introduced or read for the first time at any meeting other than the regular meeting speci- fied in such notice nor unless proof of compliance by the applicant with section 31-32-102 is first presented to such governing body in the form of a publisher's affidavit of publication or a certificate of the clerk of the posting of such notice. When such ordinance has been introduced and read for the first time, the governing body, if it desires to further consider the granting of the rights or privileges sought for thereby, shallorder the_same to be pub. liihid-daily in a paper of general circulation.published in such city or town for a period of_nQI-less_than-h~_weeks prior tq_the time such ordinance is again read.and put upon its passage. If there.is no paper of general circula- tion published daily in such city or town, such publication shall be made in a paper of general circulation published weekly in such city or town. If there is no such paper published daily,or weekly, such publication shall be made by posting copies of such proposed ordinance in at least six public places in such municipality for the same period of time. No such ordinance shall be adopted or passed by the governing body of any city or town unless the same has been previously introduced and read and publication first made as provided for in this section. Such previous introduction and reading of such ordinance and the fact of its publication in a newspaper or by posting shall appear in the certificate and the attestation of the clerk on such ordi- nance after its adoption. Source: R & RE, L. 75, p. 1243, Â§ 1. Am. Jur.2d. See 36 Am. Jur.2d, Franchises, . C.J.S. See 37 C.J.S., Franchises. Â§ 10; 64 Â§ 15. C.J.S., Municipal Corporations Â§ Â§ 1728- 1730. 31-32-104. Majority vote required for passage. Every such ordinance shall require for its passage or adoption the concurrence of a majority of all the members of the governing body of the city or town. Source: R & RE, L. 75, p. 1244, Â§ 1; L. 81, p. 1496, Â§ 11. 31-32-105. Cities or towns may erect utilities. Nothing in this part 1 shall zdo be construed as in any way modifying or restricting the right of cities or towns to purchase or erect electric light works, heating and cooling works it and distribution systems for the distribution of heat and cooling obtained from geothermal resources, solar or wind energy, hydroelectric or renewable biomass resources, including waste and cogenerated heat, or gasworks in the manner provided for by law. Source: R & RE, L. 75, p. 1244, Â§ 1; L. 81, p. 1457, Â§ 5. - 030 - AON - 100 94 - d]S >1- 1 0 Z eO - onv U.1 > , CO m 0 - inf U.1 1- 22 - NAP - AVI - UdÂ¥ - hiv,~1 - 833 NVP HMM All.SAS 3a-3 9091 KWHA.XLC 9/2/92 ' 0661 1661 Z66L TOWN OF ESTES PARK PURCHASE ACCUMULAT 95,500,000 - 85,500,000 - 75,500,000 - 65,500,000 - - 000'009'99 - 000'009'St - 000'009'SE - 000'009'SZ - 000'009'9 L 000'009'9 0 1 - oil(1 - AON - 100 - d]S - DAV - inf - Nnf - AVI - ady - 21Â¥M - 833 NVP M>I r(31SAS 3a-1 9091 KW.XLC 9/2/92 066 L - L66L Z66L TOWN OF ESTES PARK PURCHASE POWER - DEMAND 21000 - 19000 - - OOOLL 00091 - 00OEL 0O0LL AON 1-:.-4:ki:14Â·441.-f:>~~~~iq,9~,.~â€¢Â»~ 130 Â·Â·Â·Â·.i#iÂ·it'N<-iÂ·*~ d]S DAV Kg#WM#imihlf.f:~~RN"*ME}:,~:2%:tim#:41*:Mwa *44,44:::t..44(:~>2 :i:~,43.Â·....: NA f EL491243 L .:Â§:Â§~:%):~i:i:;::if:.>i:i: ?:i:i:k::3::::i: i~::E:?g r=â€žm L 0-1-4- 8Â¥n L ......~.. r HMM n]ISAS 3a-2 9091KWH.XLC 9/2/92 066 L m Z66 L m 7,500,000 ~__~ I 1991 TOWN OF ESTES PARK PURCHASE POWER - ENERGY 9,500,000 - 9,000,000 - 8,500,000 - 8.000,000 - 000'000'L +- 000'009'9 000'000'9 1 F.Â· Â·:- - 000'009'9