HomeMy WebLinkAbout2019-06 Granting Franchise to Holy Cross EnergyORDINANCE NO. 6
SERIES 2019
AN ORDINANCE OF THE TOWN OF VAIL, EAGLE COUNTY,
COLORADO, GRANTING A FRANCHISE TO HOLY CROSS ENERGY,
ITS SUCCESSORS AND ASSIGNS, TO LOCATE, BUILD, INSTALL,
CONSTRUCT, ACQUIRE, PURCHASE, EXTEND, MAINTAIN, REPAIR
AND OPERATE INTO, WITHIN AND THROUGH THE TOWN OF VAIL,
ALL NECESSARY AND CONVENIENT FACILITIES FOR THE
PURCHASE, GENERATION, TRANSMISSION AND DISTRIBUTION OF
ELECTRICAL ENERGY, AND TO FURNISH, SELL AND DISTRIBUTE
SAID ELECTRICAL ENERGY TO THE RESIDENTS OF THE TOWN OF
VAIL FOR LIGHT, HEAT, POWER AND OTHER PURPOSES BY
MEANS OF CONDUITS, CABLES, POLES AND WIRES STRUNG
THEREON, OR OTHERWISE ON, OVER, UNDER, ALONG, ACROSS
AND THROUGH ALL STREETS AND OTHER PUBLIC WAYS IN THE
TOWN OF VAIL, AND SETTING FORTH DETAILS RELATED THERETO
WHEREAS, the Town's current energy franchise agreement with Holy Cross
Energy is set to expire in May 2019;
WHEREAS, pursuant to C.R.S. § 31-32-102, Holy Cross Energy published notice
of its intent to apply for the passage of an ordinance granting it a new franchise
agreement to operate within the Town in a newspaper of general circulation published in
the Town once a week for three successive weeks on April 1, April 8, and April 15,
2019, specifying the new franchise agreement would be considered by the Town
Council at its regular meeting on April 16, 2019;
WHEREAS, following first reading of this Ordinance on April 16, 2019, and
pursuant to C.R.S. § 31-32-103, Holy Cross Energy caused additional published notice of
the proposed franchise agreement to be published in a newspaper of general circulation
published in Town for a period of not less than two (2) weeks, from May 7, 2019 to May
14, prior to May 21, 2019;
WHEREAS, Holy Cross has provided proof of such published notice in the form of
newspaper affidavits of publication; and
WHEREAS, the Town Council finds and determines that approval of the proposed
franchise agreement is in the best interest of the public health, safety and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO, THAT:
Section 1. The Town Council approves the Franchise Agreement attached
hereto and incorporated herein, subject to final approval by the Town Attorney.
Section 2. If any part, section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid, such decision shall not effect the validity
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of the remaining portions of this ordinance; and the Town Council hereby declares it
would have passed this ordinance, and each part, section, subsection, sentence, clause
or phrase thereof, regardless of the fact that any one or more parts, sections,
subsections, sentences, clauses or phrases be declared invalid.
Section 3. The Town Council hereby finds, determines and declares that this
ordinance is necessary and proper for the health, safety and welfare of the Town of Vail
and the inhabitants thereof.
Section 4. All bylaws, orders, resolutions and ordinances, or parts thereof,
inconsistent herewith are repealed to the extent only of such inconsistency. This
repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or
part thereof, theretofore repealed.
INTRODUCED, READ ON FIRST READING, APPROVED, ORDERED
PUBLISHED ONCE IN FULL AND ORDERED PUBLISHED this
16th
day of April 2019;
with a public hearing for second reading of this Ordinance set for the
7th day of May
2019, in the Council Chambers of the Vail Municipal Building, Vail, Colorado.
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ARTICLE 1
SHORT TITLE
1.1 This Ordinance shall be known and may be cited as the "Holy Cross Energy, Franchise
Ordinance."
ARTICLE 2
DEFINITIONS
For the purpose of this Franchise Ordinance (the "Franchise"), the following terms shall have the
meaning given herein:
2.1 "Town" is the Town of Vail, Eagle County, Colorado, the municipal corporation as 1s
now constituted or as the same may be enlarged or expanded from time to time through
annexation.
2.2 "Company" refers to Holy Cross Energy, a Colorado corporation, its successors and
assigns.
2.3 "Council" refers to the legislative body of the Town, known as the Town Council of the
Town of Vail, Colorado.
2.4 "Facilities" refers to all overhead and underground electric facilities, buildings, and
structures necessary to provide electricity into, within and through the Town of Vail including,
but not limited to, such essential apparatus, appliances, plants, systems, substations, works,
transmission and distribution lines and structures, anchors, cabinets, cables, conduits, guy posts
and guy wires, meters, microwave and communication facilities, overhead and underground
lines, pedestals, poles, regulators, sectionalizers, switchgears, transformers, various pad mounted
and pole mounted equipment, vaults, wires, and all other related electrical equipment required
for the distribution, generation, maintenance, operation, purchase, and transmission of electrical
energy.
2.5 "Public Easements" refers to easements created and available for use by any public utility
for its facilities.
2.6 "Private Easements" refers to easements created and available only for use by the
Company for its Facilities, or by the Company and other selected users or utilities.
2.7 "Residents" refers to and includes all persons, businesses, industry, governmental
agencies, and any other entity whatsoever, presently maintaining a residence, business, farm,
ranch or other enterprise located within, in whole or in part, the boundaries of the Town.
2.8 "Revenues," unless otherwise specified, refers to and are the gross amounts of money that
the Company receives from its customers within the Town from the sale of electrical energy for
any particular period of time.
2.9 "Streets and Other Public Ways" refers to streets, alleys, viaducts, bridges, roads, lanes
and other public ways in the Town, subject to limitations stated herein.
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ARTICLE 3
GRANT OF FRANCHISE
3.1 Grant of Right to Serve. Subject to the conditions, terms and provisions contained in this
Franchise, the Town of Vail hereby grants to the Company the non-exclusive right, privilege and
authority to locate, build, install, construct, acquire, purchase, extend, maintain, repair and
operate into, within and through all of the Town boundaries all necessary and convenient
Facilities for the purchase, generation, transmission, and distribution of electrical energy. Such
grant is made together with the non-exclusive right and privilege to furnish, sell, and distribute
said electrical energy to the Residents of the Town for light, heat, power and other purposes.
The rights granted by this Franchise are not, and shall not be deemed to be, granted exclusively
to the Company, and the Town reserves the right to make or grant a franchise to any other
person, firm, or corporation.
3.2 Scope of Grant. Such grant includes the right and obligation to furnish electrical energy
either overhead, on poles and wires, or underground, or otherwise, on, over, under, along, across
and through any and all Streets and Other Public Ways, on, over, under, along, across and
through any extension, connection with, or continuation of, the same and/or on, over, under,
along, across and through any and all such new Streets and Other Public Ways as may be
hereafter laid out, opened, located, or constructed within the boundaries of Town. The Company
is further granted the right, privilege and authority to excavate in, occupy and use any and all
Streets and Other Public Ways and Public Easements. Any such excavation, occupation and use
must be in accordance with Town standards and regulations, subject to any required Town
permits, and will be undertaken under the supervision of the properly constituted authority of the
Town for the purpose of bringing electrical energy into, within and through the Town and
supplying electrical energy to the Residents.
3.3 Service to Town Facilities. The Town hereby grants to the Company the exclusive right,
privilege, and authority to provide street and security lighting to the Town, and to serve all Town
owned or operated structures, plants, equipment, or Town apparatus and facilities, including the
right, privilege, and authority to furnish, sell, and distribute electrical energy necessary for such.
3.4 Duration of Franchise. This Franchise shall be in full force and effect on the first day of
the month following the date this Franchise is finally approved by the Town Council of the Town
of Vail (the “Effective Date”), and the terms, conditions and covenants hereof shall remain in
full force and effect for a period of twenty (20) years from the Effective Date.
3.5 Periodic Review. Consistent with Section 12.5 of the Vail Town Charter, five (5) years
from the Effective Date, and every five (5) years thereafter until the end of the term as defined
herein, the Town may review the terms of this Franchise. The Town shall notify the Company in
writing no later than one hundred and eighty (180) days before each five (5) year anniversary of
the Effective Date if it desires to seek to amend the Franchise. The five (5) year periodic review
shall not affect the twenty (20) year duration of the Franchise as set forth in Section 3.4 above.
ARTICLE 4
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SPECIFIC ELEMENTS OF GRANT
4.1 Recreational Areas. The Company shall not have the right to locate, build, or construct
Facilities under, across, or through public parks or recreational areas, open space or other Town
owned property located within the Town except as expressly set forth in this Franchise or upon
prior written approval granted by the Town Council. Said approval shall not be unreasonably
withheld.
4.2 Trees and Shrubs. The Company shall have the right to trim or cut down such trees and
shrubbery and to control the growth of the same by chemical means, machinery, or otherwise,
only as may be reasonably necessary to protect its Facilities and in a manner to minimize damage
or interference to trees, shrubbery and other natural features according to custom and usage
within the utilities industry.
4.3 Location of Company's Facilities. Wherever reasonable and practicable, the Company
will endeavor to install its Facilities within Public Easements. The Company shall locate its
Facilities within the Town so as to cause minimum interference with any of the Town's facilities
or property, including without limitation water lines, sewer lines, storm drains, and the proper
use of Streets and Other Public Ways, and so as to cause minimum interference with the rights or
reasonable convenience of property owners whose property adjoins any of the said Streets and
Other Public Ways.
4.4 Restoration of Public and Private Improvements. Should it become necessary for the
Company, in exercising its rights and performing its duties hereunder, to interfere with any
sidewalk, graveled or paved street, road, alley, water line, sewer line, storm drain, or any other
public or private improvement, the Company shall at its own expense and in a quality
workmanlike manner, repair or cause to be repaired and restored to its original condition such
sidewalk, graveled or paved street, road, alley, water line, sewer line, storm drain, or other public
or private improvement after the installation of its facilities, provided, however, that upon failure
of the Company to do such required repairs within a reasonable time and in a workmanlike
manner, the Town may perform the required work and charge the Company for all reasonable
costs thereof.
4.5 Use of Facilities. The Company shall have the right to make such use of its Facilities and
any property owned by the Company for uses other than the uses contemplated in this Franchise,
as it deems proper so long as such other uses do not interfere with its ability to supply electrical
energy.
4.6 Relocation of Overhead Facilities. If at any time it shall be necessary to change the
position of any overhead electrical Facilities of the Company to permit the Town to lay, make or
change street grades, pavements, sewers, water mains, storm drains, or other Town works, such
changes shall be made by the Company at its own expense, after reasonable notice from the
Town.
4.7 Compliance with Town Requirements. The Company shall comply with all Town
requirements regarding curb and pavement cuts, excavating, digging and related construction,
maintenance and operational activities, including obtaining Town permits as required therefor. If
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requested by the Town, the Company shall submit copies of reports of annual and long-term
planning for capital improvement projects with descriptions of required street cuts, excavation,
digging and related construction activities within thirty (30) days after issuance of such request.
4.8 Town Review of Construction and Design. Prior to construction of any significant
Facilities within the Town, as determined jointly by the Company and Town, the Comp any shall
furnish to the Town the plans for such proposed construction. Upon request, 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, air and water pollution regulations are complied with,
(2) that aesthetic and good planning principles have been given due consideration, and (3) that
adverse impact on the environment has been minimized.
4.9 Capital Improvement Projects. The Company and the Town shall endeavor to inform one
another of any capital improvement projects anticipated within the Town that may impact the
facilities or operations of either party. The party proposing such capital improvements shall
inform the other party of the nature of such improvements within a reasonable time after plans
for such improvements have been substantially formulated. Each party shall cooperate in the
timely exchange of all necessary information, design data, drawings, and reports to properly
assess and evaluate the potential impacts of said improvements.
4.10 Maintenance of Facilities. The Company shall install, maintain, repair, replace, and
upgrade its Facilities to ensure both the adequacy of, and quality of, electric service to the Town
and all Residents. All excavation and construction work done by or under the authority of the
Company shall be done with necessary Town permits in a timely and expeditious manner which
minimizes the inconvenience to the Town and all Residents.
4.11 Town Not Required to Advance Funds. Upon receipt from the Town of an authorization
to proceed, and a promise to pay for construction, the Company shall extend its Facilities to the
Town for municipal uses therein or for any municipal facility outside the boundaries of the Town
and within the Company's certificated service area, without requiring the Town to advance funds
prior to construction.
4.12 Scheduled Interruptions. The Company shall, whenever possible, give notice, either
electronic, oral or written, to the Town and its affected Residents, of planned service
interruptions of significant duration.
ARTICLE 5
RATES, REGULATIONS, UNIFORMITY OF SERVICE, AND UPGRADES
5.1 Furnishing Electrical Energy. The Company shall furnish electrical energy within the
boundaries of the Town, and to the Residents thereof at Company's applicable and effective rates
and under the terms and conditions set forth in the Rate Schedules; Standards for Service, Rules
and Regulations, and Service Connection and Extension Policies, adopted by and on file with the
Company, subject only to regulations thereof as is provided by law. The Company shall not, as
to rates, charges, service, Facilities, rules, regulations or in any other respect, make or grant any
preference or advantage to any resident, provided that nothing in this grant shall be taken to
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prohibit the establishment from time to time of a graduated scale of charges and classified rate
schedules to which any customer coming within an established classification would be entitled.
5.2 Facility Upgrades. The Company shall, from time to time, during the term of this
Franchise make such improvements, enlargements and extensions of its Facilities incorporating,
when reasonable and practical, technological advances within the utilities industry as the
business of the Company and the growth of the Town justify, in accordance with its Standards
for Service, Rules and Regulations, and Service Connection and Extension Policies for electric
service currently in effect and on file with the Company, subject only to regulations thereof as is
provided by state and federal law.
5.3 Reliable Supply of Electricity. The Company shall take all reasonable and necessary_
steps to provide an adequate supply of electricity to its customers at the lowest reasonable cost
consistent with long-term reliable supplies. If the supply of electricity to its customers should be
interrupted, the Company shall take all necessary and reasonable actions to restore such supply
within the shortest practicable time.
5.4 Changes in Rates and Service. The Company, from time to time, may promulgate such
rules, regulations, terms and conditions governing the conduct of its business, including the use
of electrical energy and payment therefor, and the interference with, or alteration of any of the
Company's property upon the premises of its customers, as shall be necessary to ensure a
continuous and uninterrupted service to each and all of its customers and the proper
measurement thereof and payment therefor.
5.5 Maps and Regulations. The Company shall submit maps of its Facilities within the Town
boundaries to the Town Clerk. The Company shall keep current copies of its Standards for Service,
Service Connection and Extension Policies, Rules and Regulations on Company's website. All
changes in such maps, Standards for Service, Rules and Regulations, and policies, shall be
submitted to the Town as the same may from time to time occur. The Town shall provide copies
of its map to the Company if Town boundaries change.
5.6 Subdivision Review. The Company shall analyze any subdivision plats or planned unit
development plans submitted to it by the Town and respond to any request by the Town for
information regarding the adequacy of its Facilities necessary to serve such proposed plat or plan
and answer any other questions posed to the Company by the Town regarding said plat or plan as
are within the knowledge of the Company. The Company shall respond to said requests or
questions within reasonable time limits set by the Town's Subdivision Regulations.
5.7 Compliance with Laws. The Company shall comply with all County, State or Federal
laws, rules and regulations, ordinances or resolutions related to the subject matter hereof.
ARTICLE 6
USE OF COMPANY FACILITIES
6.1 Use of Poles by Town. The Town shall have the right, without cost, to jointly use all
poles and suitable overhead structures within Town for the purpose of stringing wires thereon for
any reasonable Town authorized use; which use shall not include the distribution or transmission
of electricity; provided, however, that the Company shall assume no liability, nor shall it be put
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to any additional expense, in connection therewith, and said use shall not interfere in any
unreasonable manner with the Company's use of same, or the use thereof by the Company's
permittees, licensees, or other existing users of its Facilities. Use of Facilities hereunder by the
Town shall not apply to the Town's licensees, permittees and franchisees. The Company agrees
to permit Town licensees, permittees and franchisees, except those holding an electric utility
franchise or license from the Town, to use its Facilities upon reasonable terms and conditions to
be contractually agreed upon with the Company, in writing.
ARTICLE 7
INDEMNIFICATION AND POLICE POWER
7.1 Town Held Harmless. The Company shall indemnify, defend and save the Town, its
officers and employees, harmless from and against all liability or damage and all claims or
demands whatsoever in nature arising out of the operations of the Company within the Town
pursuant to this Franchise, and the securing of, and the exercise by the Company of, the franchise
rights granted in this Franchise and shall pay all reasonable expenses arising therefrom. The
Town shall 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 shall be permitted, at its own expense, to appear and defend or to assist in defense of
such claim. In the event a claim or claims for injury or damage is brought against the Company,
and such shall include a claim of responsibility against the Town, both parties shall defend the
respective claim or claims brought against each, and each shall be responsible for its own
attorney's fees during the pendency and continuation of any such action or proceeding. At the
conclusion of the litigation or proceeding, whether by settlement, dismissal, order of court or
administrative agency, or otherwise, if a determination is made that the Town is in no way
responsible for the claim or claims, or that the Company is solely responsible, the Company shall
promptly reimburse the Town for its reasonable attorney’s fees and costs incurred in defending
such claim or claims.
7.2 Police Power Reserved. The Company expressly acknowledges the Town's right to
adopt, from time to time, in addition to the provisions contained herein, such laws, including
ordinances and regulations, as it may deem necessary in the exercise of its governmental powers.
The right is hereby reserved to the Town 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 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.
ARTICLE 8
FRANCHISE FEE
8.1 Franchise Fee. In consideration for the grant of this Franchise, the Company shall pay to
the Town a sum equal to four-percent (4%) of its gross Revenues collected from the sale of
electricity within the boundaries of the Town (the "Franchise Fee"), but this Franchise Fee may
be reduced at any time by resolution of the Town Council to three-percent (3%) of the
Company's gross Revenues collected from the sale of electricity within the boundaries of the
Town. Should the Franchise Fee be reduced to three-percent (3%), the Town may, at its option,
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return the Franchise Fee to four percent (4%) at any time upon resolution of the Town Council.
Electric revenues received from service to the Town facilities will not be assessed the Franchise
Fee under this section nor will the Town be paid the Franchise Fee from such revenues collected
from Town facilities. To the extent required by law, the Franchise Fee shall be surcharged to the
Residents of the Town. The Franchise Fee is a surcharge in addition to any charges specified in
the Company's tariffs and any applicable taxes.
8.2 Franchise Fee Payment In lieu of Other Fees. The Franchise Fee paid 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 does not exempt the
Company from payment of head taxes or other fees or taxes assessed generally upon business.
8.3 Payment. Payment of the Franchise Fee shall be made by the Company to the Town on
or before thirty (30) days after the end of each quarter of each calendar year for the preceding
three (3) month period but shall be adjusted and prorated for the portions of the calendar quarters
at the beginning and at the end of this Franchise. All payments shall be made to the Town Clerk.
8.4 Revenue Audit. For the purpose of ascertaining or auditing the correct amount to be paid
under the provisions of this Article, the Company shall file with the Town Clerk, or such other
official as shall be designated by the Town from time to time, a statement, in such reasonable
form as the Town may require, showing the total gross receipts received by the Company from
the sale of electricity to Residents within the boundaries of the Town for the preceding three (3)
month period. The Town Clerk or any official appointed by the Town Council shall have access
to the books of said Company for the purpose of confirming the quarterly gross revenues
received from operations within said Town.
8.5 Correction of Underpayment/Overpayment. Should either the Company or the Town
discover either an underpayment or overpayment of the quarterly Franchise Fee, the party
making such discovery shall inform the other party within a reasonable time. If the error is
substantiated as an underpayment, the Company shall make payment of the deficiency within
thirty (30) days of the date the error was substantiated. If the error is substantiated as an
overpayment, a credit equal to the overpayment will be applied to the next quarterly Franchise
payment due the Town.
8.6 Occupancy Tax Alternative. In the event the said franchise fee levied herein should be
declared invalid and/or shall be set aside by a Court of competent jurisdiction, then, and in such
event, and in lieu thereof, the Town may thereafter levy an occupancy tax upon the Company,
not to exceed in any one calendar year the current Franchise Fee as set forth in Section 8.1 herein
within the Franchise Area for that calendar year. In the event the one-percent (1%) community
enhancement fee shall also be declared invalid and/or shall be set aside by a Court of competent
jurisdiction, then the occupancy tax levied upon the Company by the Town shall be one percent
(1%) higher than the current Franchise Fee. Such occupancy tax shall be adjusted for any
Franchise Fees or enhancement fees previously paid to the Town in such calendar year. In the
event the Town shall enact such an occupancy tax, in lieu of the Franchise Fee and/or
enhancement fee levied hereunder, all of the remaining terms, conditions and provisions of this
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Franchise shall remain in full force and effect for the period stated herein. Such occupancy tax
ordinance or enactment shall be designed to meet all legal requirements to ensure that it is not
construed as an income tax. Any alternative levy imposed by the Town shall only be valid if
such is surchargeable by the Company under the provisions of C.R.S. § 40-3-106(4).
8.7 Payment of Expenses Incurred by Town in Relation to Franchise. At the Town's option,
the Company shall pay in advance or reimburse the Town for expenses incurred for publication
of notices related to the enactment of this Franchise and for photocopying of documents during
the negotiations for, and processing of, this Franchise.
8.8 Termination of Franchise. If this Franchise is terminated by either the Company or the
Town for whatever reason, or is declared null and void, all Franchise Fees or occupancy taxes
levied herein shall be suspended as of the date the Franchise is legally terminated. Final
payment of any Franchise Fee or occupancy tax owed and due the Town shall be made on or
before thirty (30) days after the date the Franchise is legally terminated.
ARTICLE 9
REPORTING AND CHANGE IN FRANCHISE FEE
9.1 Reports. The Company shall submit reasonable and necessary reports containing, or
based upon, information readily obtainable from the Company's books and records as the Town
may request with respect to the operations of the Company under this Franchise, and shall, if
requested, provide the Town with a list of real property within the Town which is owned by the
Company.
9.2 Change of Franchise Fee. The Company shall, upon request from the Town, notify the
Town Council of any changes in the Franchise Fee percentage made with other municipalities
served by the Company under a franchise within the State of Colorado. If the Town Council
decides the Franchise Fee percentage hereunder shall be changed, it shall provide for such
change by ordinance; provided, however, that any change in the Franchise Fee percentage shall
then be surcharged by the Company to the Residents of the Town.
9.3 Copies of Tariffs. The Company shall post copies of its tariffs currently in use on the
Company's website.
ARTICLE 10
ADMINISTRATION
10.1 Amendments. At any time during the term of this Franchise, the Town through its Town
Council, or the Company, may propose amendments to this Franchise by giving thirty (30) days
written notice to the other party of the proposed amendment(s) desired, and both parties
thereafter, through their designated representatives, shall within a reasonable time, negotiate in
good faith in an effort to agree upon a mutually satisfactory amendment(s). No amendment(s) to
this Franchise shall be effective until mutually agreed upon by the Town and the Company and
until all public notice requirements pursuant to Colorado statutes, and ordinance requirements of
the Town, have been met. This section shall not apply to Franchise Fee changes under Article 9.
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10.2 Revocation of Privileges by Condemnation. In the event, at any time during the term of
this Franchise, the Town shall condemn any of the Facilities of the Company within the
boundaries of the Town, and thereby revoke all or any part of the privilege and authority herein
granted to the Company to serve the Residents of the Town, then and in such event the Town
shall pay to the Company just compensation for such rights and Facilities by reason of such
condemnation.
10.3 Compliance Impaired. 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 circumstances beyond the Company's or Town's control. In those instances,
the Company or Town shall use its best efforts to comply in a timely manner and to the extent
possible.
10.4 Company’s Failure to Perform. It is agreed that in case of the failure of the Company to
perform and carry out any of the stipulations, terms, conditions, and agreements herein set forth
in any substantial particular, wherein such failure is within the Company's control and with
respect to which redress is not otherwise herein provided, the Town, acting through its Town
Council, may, after hearing, determine such substantial failure; and, thereupon, after notice given
the Company of such failure, the Company may have a reasonable time, not less than ninety (90)
days, unless otherwise agreed by parties, in which to remedy the conditions respecting which
such notice shall have been given. After the expiration of such time and the failure to correct
such conditions, the Town Council shall determine whether any or all rights and privileges
granted the Company under this Franchise shall be forfeited and may declare this Franchise null
and void.
10.5 Ownership of Facilities. All Facilities used or placed by the Company within the
boundaries of the Town shall be and remain the property of the Company.
10.6 Transfer of Rights. 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.
10.7 Removal of Facilities. Upon the expiration of this Franchise, if thereafter the Company
Facilities shall not be used for electric, telephone, or cable TV purposes for a period of twelve
(12) successive months, the Town shall have the option of having the Company remove such
Facilities or claim such Facilities as its own. If the Town elects to have the Company remove the
Facilities, it shall give written notice to the Company directing it to remove such Facilities, and
the Company shall remove the same no later than ninety (90) days after the date of such notice,
unless the Company and the Town agree to a longer period within which removal shall occur.
Any Facilities, either underground or overhead, remaining after such time that are not expressly
claimed by the Town shall be deemed to have been abandoned. Any cost incurred by the Town
in removing abandoned Facilities, and any liability associated with Facilities abandoned by the
Company shall be the liability of the Company. For any Facilities claimed by the Town, any
liability associated with such Facilities shall become the liability of the Town.
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10.8 Non-renewal of Franchise: Alternative Electric Service. If this Franchise is not renewed,
or if it is declared null and void, or the Company terminates any service provided for herein for
any reason, and the Town has not provided for alternative electric service to the Residents of the
Town, the Company shall not remove its Facilities and shall be obligated to continue electric
service to the Residents until alternative electric service is provided. The Company will not
withhold any temporary services necessary to protect the public.
ARTICLE 11
COMMUNITY ENHANCEMENT FUND
11.1 Purpose. The Company is committed to programs designed to make a difference in
people's lives and the communities in which they reside. The Company shall voluntarily make
monetary resources available to the Town for such programs and/or activities (the "Fund").
Programs for which the Fund shall be spent shall be limited to: (1) Beautification projects; (2)
Energy conservation projects; (3) Equipment and technology upgrades for schools; (4)
Scholarship funds; (5) Acquisition of open space and/or park land and development thereof; (6)
Sponsorship of special community events; (7) Undergrounding of overhead electric and other
utility lines. Fund money made available under this Article may be spent for other purposes only
with the express written consent of the Company. This program has been initiated solely by the
Company; the Town has not made the program a requirement for this Franchise. Funding for
this program is not a cost of doing business but is a voluntary contribution by the Company.
11.2 Payments to the Fund. The Company shall make annual payments to the Fund equal to
one percent (1%) of its prior year's gross Revenues, commencing with 2019 Revenues, collected
from the sale of electricity within the boundaries of the Town. Said payments shall be made into
the Fund no later than February 15th of the year subsequent to the year in which the gross
Revenues are received by the Company.
11.3 The Fund. The Fund established by the Company shall be maintained in a bank account
in the name of the Town but shall be maintained separately from all other funds and accounts
held by the Town.
11.4 Payments from the Fund. All payments from the Fund shall be for projects described in
Section 11.1 hereof. Prior to any such expenditure, authorization to withdraw from the Fund
shall be given by resolution or ordinance duly enacted by the Town Council, and such resolution
or ordinance shall clearly describe the nature and purpose of the project for whi ch the
expenditure is made. Prior to any expenditure, the Town shall notify the Company of its
intended use of the Fund. Unless the Company objects, in writing, prior to such expenditure, the
Company shall have waived its right to object if the Fund is expended for the use identified in
the notice.
11.5 Audits. The Town may audit the Company's books related to gross Revenues collected
within the Town at any reasonable time and with reasonable prior notice. The Company may
audit the Fund account, expenditures from the Fund, and resolutions and ordinances authorizing
such expenditures at any reasonable time and with reasonable prior notice.
11
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11.6 Forfeiture of Enhancement Fund. The Company shall have the express right to
temporarily suspend or terminate in full its annual contributions to the Fund if it is determined
that funds allocated and paid to the Town for the Fund are being, or have been, misappropriated,
administered with bias or discrimination, or for other inappropriate actions.
11.7 Advances of Funds. This Paragraph 11.7 applies only to the Fund identified for
undergrounding of overhead electric lines discussed in Paragraph 11.1 above. The Town shall
make all reasonable attempts to plan and budget use of the Fund without advancement of future
Fund. However, if the Town requests and the Company and the Town agree that it is in the
mutual interest of both, the Company shall anticipate Fund amounts to be available for up to
three (3) years in advance. Both parties shall enter into a special agreem ent concerning the
advanced Fund. Any amounts advanced shall be credited against amounts to be expended in
succeeding years until such advances are eliminated.
ARTICLE 12
UNDERGROUNDING
12.1 Town Policy. The Town has a policy that requires underground extension of new
electrical distribution lines to new development within the Town. Amendments thereto will be
furnished to the Company promptly after enactment by the Town. The Company shall extend its
Facilities in accordance with such policy and the subdivision regulations and other applicable
ordinances of the Town, but only subject to the provisions of the Company's Line Extension
Policy, as may be amended from time to time, and other applicable Company rules and
regulations, if any.
12.2 Customer's Request. If a customer within the Town should request that new Facilities be
installed underground, or for the conversion of existing overhead Facilities to underground
Facilities, the Company shall proceed in accordance with its Line Extension Policy.
12.3 Town Requested Undergrounding. Except for the Company's contributions to the Fund,
which may be used by the Town to pay for the undergrounding of the Company's Facilities, any
request, requirement imposed by resolution or ordinance, or other communication from the Town
to the Company, asking, or requiring the Company to underground new Facilities or existing
overhead Facilities, or move, remove, or replace existing underground Facilities, shall be
handled according to Sec. 12.4 herein and in accordance with the provisions of the Company's
Line Extension Policy. The Town acknowledges receipt of a copy of the policy.
12.4 Relocation of Underground Facilities. If the Town elects to change the grade of or
otherwise alter any Streets or Other Public Ways for a public purpose, as determined at the sole
legislative discretion of the Town Council, unless otherwise reimbursed by federal, state or local
legislative act or governmental agency, the Company, upon reasonable notice from the Town,
shall remove and relocate its Facilities or equipment situated in the public rights-of-way, at the
sole cost and expense of the Company. Provided, however, nothing hereinabove shall be
construed to obligate the Company to pay for the removal and relocation of its Facilities where
such is at the request or demand of a person or entity under circumstances that reasonably require
the party requesting or demanding the relocation to pay for the relocation under other provisions
hereof, or under the provisions of the Company's Line Extension Policy.
12
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ARTICLE 13
RENEWABLE ENERGY GOALS
13.1 Renewable Energy Goals. The Company has a commitment to Renewable Energy that falls
in line with the advanced goals of the Town. In the fall of 2018 the Company announced a new
SEVENTY70THIRTY plan. The SEVENTY70THIRTY plan sets a goal for the Company to
purchase 70% of all power sold from clean renewable resources by the year 2030. This
represents an increase from 39% renewables sourced at the time of the program's adoption.
Another goal of the SEVENTY70THIRTY program is to reduce the 2014 greenhouse gas
emissions associated with the Company's power supply by 70% compared to 25% 2018.
ARTICLE 14
MISCELLANEOUS
14.1 Changes in Utility Regulation. In the event new legislation materially affects the terms
and conditions of this Franchise, the parties agree to renegotiate the affected terms and
conditions in good faith. The parties hereto acknowledge that regulatory and legislative changes
in the electric utility, gas utility and other energy industries are currently being discussed
nationwide and statewide; that some changes in utility industry sectors have already been
implemented; and that other changes may be made in the future, during the term of this
Franchise. One scenario is the implementation of open access to electric customers, and other
energy customers, making such customers available to all utilities, thus eliminating or limiting
territorial protections. Under this scenario one utility may contract to sell a type of energy to a
customer, while another utility transports the energy to the customer for a fee charged to the
other utility or the customer. The parties agree, that insofar as future changes in the utility laws
will allow, the Company shall always retain the right to bill customers for utility transportation
services and energy sales within the Town if it is the provider of either the energy product or the
transportation of such product. The parties agree that this will provide the most efficient and
convenient utility service to the Residents of the Town and provide assurance to the Town of
Franchise Fee collection for each component charged for the sale and delivery of energy
products within the boundaries of the Town.
14.2 Successors and Assigns. Upon written approval of the Town, except when transfer is
permitted by Section 10.6 herein, the rights, privileges, franchises and obligations granted and
contained in this Franchise shall inure to the benefit of and be binding upon the Company, its
successors and assigns.
14.3 Representatives. Both parties shall designate from time to time in writing representatives
to act as franchise agents for the Company and the Town. Such will be the persons to whom
notices shall be sent regarding any action to be taken under this Franchise. 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. Until an y such change shall hereafter be made, notices shall be sent to the Town Manager
and to the Company's CEO. Currently the addresses for each are as follows:
For the Town: Town Manager
Town of Vail
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75 South Frontage Road
Vail, Colorado 81657
For the Company: Mr. Bryan Hannegan
Holy Cross Energy PO Drawer 2150
Glenwood Springs, CO 81602
14.4 Severability. Should any one or more provisions of this Franchise be determined to be
illegal or unenforceable, all other provisions nevertheless shall remain effective; provided,
however, the parties shall forthwith enter into good faith negotiations and proceed with due
diligence to draft provisions that will achieve the original intent of stricken provisions.
14.5 Entire Agreement; Repeal. This Franchise, when approved by the Company as set forth
below, constitutes the entire agreement of the parties. There have been no representations made
other than those contained in this Franchise. This Franchise supersedes all prior ordinances
relating thereto, and any terms and conditions of such prior ordinances or parts of ordinances in
conflict herewith are hereby repealed. Ordinance No. 13, Series of 1999, of the Town of Vail,
Colorado, is hereby repealed as of the Effective Date.
14.6 Non-Waiver. Any waiver of any obligation or default under this Franchise shall not be
construed as a waiver of any future defaults, whether of like or different character.
14.7 No Third-Party Beneficiaries. No provision of this Franchise shall inure to the benefit of
any third person, including the public at large, so as to constitute any such person as a third -party
beneficiary of the agreement or of any one or more of the terms hereof, or otherwise give r ise to
any cause of action for any person not a party hereto.
ARTICLE 15
APPROVAL
15.1 Town Approval. This grant of Franchise shall not become effective until approved by the
Town in accordance with its ordinances and the statutes of the State of Colorado.
15.2 Company Approval. The Company shall file with the Town Clerk its written acceptance
of this Franchise and of all its terms and provisions within fifteen (15) business days after the
final adoption of this Franchise by the Town. The acceptance shall be in the 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 become null and void.
Ad#: 0000402761-01 NOTICE OF INTENTION
TO APPLY FOR FRANCHISE
Customer:HOLY CROSS ENERGY LEGAL, BYHOLY CROSS ENERGY
Your account number is:1009924 Pursuant to the statutes of the state of Colorado
you are hereby notified that Hoy Cross Energy de,
sires to secure a franchise I«the purpose of provid-
ng service to customers,for constructing,PROOF OF PUBLICATION operatingand maintaining an electric facilities and
ssyystems wadi,the ann ved er m d tM Town oVAILDAILYelecthetpuboryvn
sin
the boundaries of the
f
Holly
to oh public as granted and necessity of Holy
STATE OF COLORADO
crossEnergy acgritted by the Colorado Poole
Utilities commission.
mer lar meeting r at e g body r theCOUNTYOFEAGLETownsoail,
apply pwsagNoycrossnancegranastoelyforthepassageoftheordinance
granting or grvP h franchise b on APN 16,21114
I,Mark Wurzer,do solemnly swear that I am Publisher of Road,Vail, N"'"own Cou il.75 Souh Fro ag
the VAIL DAILY,that the same daily newspaper printed,in A general description d the reins end privileges to
be applied br and the time for and terms upon
whole or in part and published in the County of Eagle, which such franchisee desired are
State of Colorado,and has a general circulation therein; I.French,.Grant.An Ordinance granting fran-
chile by the Town a Vail,Eagle County,Co0rdo,
to Holy Gross Energy to provide electric service tothatsaidnewspaperhasbeenpublishedcontinuouslyandsumce.includingalectrbse«without limitation,the Town and inhabitants thereof
uninterruptedly in said County of Eagle for a period of located in areas annexed into the Town.The fran-
chise includes the right,privilege and authority to lo-
more than fifty-two consecutive weeks next prior to the sate,e; d,istall'construct. saue,puhas,extbuild,eupgrade,
aacquire,
voltage ci
p repair nd ops ran within and^hrou hfirstpublicationoftheannexedlegalnoticeorIna'76 f Vail, II eihand suit,.gene r-con,
tr1nstrite
storage,
6tributexchange,
pumnaric energy.advertisement and that said newspaper has published the lie transmission and
Eectivtion
of.
These,
chisII.tion,Tarin-Elective Date.The franchise
requested legalrequestedrequested.9 Q oling ordinance and upon acceptance of Me fran-
chise by the applicant.The Term shall be for 2(
Ill Other FranchtseVe Pmtvlsions.There areother
terms at the franchise that are not fully set for in
The VAIL DAILY is an accepted legal advertising medium,mils tocc teagirop°he da;;.c«°;ne
only for jurisdictions operating under Colorado's Home TD nNpeavail,cud«see.
Rule provision.
Ad#: 0000420556-01 NOTICE OF FURTHER CONSIDERATION OF
FRANCHISE BY HOLY CROSS ENERGY
Customer:TOWN OF VAIL, Pursuant to the statutes of the Stale of Cobrado,
Your account number is:1023263 deliars aa°ure a ferchlsa
Hothatlyna
purpCross
Energyonsaof
proridng abcirlc service to customers,for co-
PROOF OF PUBLICATION honing'and systemsdna
maintainingas
an electricfacilitieselsystemswithintheasthereafterareas atheTowndVail,Colorado,and az a boon er mey be
VAIL DAILY establishedota tp'ublica`n"eniience boundaries
of Hoy Cross Energy as granted by Me Colorado
Pudic Utilities commission.
STATE OF COLORADO
a egul„mae,;nga ha goa<mitqq odyatMe
Towns Vail.Oalorado,olwhbh,Wh sldera
COUNTY OF EAGLE aonag21.
210aH,
00P. .attt
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on Slayh
Frontage
oadP.
M.attloado.Council.5 South Frontage Road,Vail,Colorado.
I,Mark Wurzer,do solemnly swear that I am Publisher of A general description d the dghls and privibges to
ekR stcdh"rra n 6lae m dna%ea atarma upontheVAILDAILY,that the same daily newspaper printed,in w
whole or inP art and publishedEagle,
Vailin
the Countyof Franchise Grant.An Ordinance
E2gle County,=a%To,to Holy
State of Colorado,and has a general circulation therein; Crass Energy b rconsumerscIncservicetoe
that said newspaper has been published continuously and electric service.including without limi-
tation,the Town and inhabitants Mere-
uninterruptedly in said Countyof Eagle foraperiod of located in areas annexed into the
P Y 9 f .The franchise includes the right,
more than fifty-two consecutive weeks next prior to the P rage atw aoMori,y ro lhcffia,but d,tell,conshucl,acqume.purchase,
first publication of the annexed legal notice or
extend,maintain,upgrade,increase
rheage or line capacity,repair and
operate Into,within and through the
advertisement and that said newspaper has published the Townnot ecr6asoehsayad,con-
requested legal notice and advertisement as requested, nae m” insdda;a°o=1
abhMcehT:Yerfrancheewill-ElectiveData.The franchise will become bS 0,aafarc:uatatbn of tM enablI rdi-The VAIL DAILY is an accepted legal advertisingmedium, franchiseanq
se by
theappawan
Thema
P 9 shallb abrMayears after The Term
only for jurisdictions operating under Colorado's Home date) roc 20 yearnanarMaaronive
III.Other Franchise Provisions.There
Rule provision. are other terms of the franchise that
are not tufty set lorth in this Notice.A
cold Me proposed hancaisth%
may be chaired Irom lite appli-
That the annexed legal notice or advertisement was
cant or the Town of Vail,Colorado.
published in the regular and entire issue of every number Tw°nay3 2019
Tamm Nagel,Town Clerk
of said daily newspaper for the period of 2 insertions;and V;is:e S Rd
that the first publication of said notice was in the issue of
570-478-2138
said newspaper dated 5/10/2019 and that the last
P
2e
0558 the Vail Daily,May 10 and 17,2019.00004
publication of said notice was dated 5/17/2019 in the issue
of said newspaper.
In witness whereof,I have here unto set my hand this day,
5/21/2019.
4011-
Mark Wurzer,Publisher
Subscribed and sworn to before me,a notary public in and
for the County of Eagle,State of Colorado this day
5/21/2019.
6'41'
Jerilynn Medina,Notary Public
My Commission Expires: August 3,2020
ER1 LYP4N Mtby
NOTARY PhASL'C
STATE OF COLORADO
NOTARY ID 20154029595
NY COAMSSON;;xonry AUGUST A 2ao
Ad#: 0000427996-02 ORDINANCE NO 6
SERIES 2019
Customer:TOWN OF VAIL,
AN ORDINANCE OF THE TOWN OF VAIL,EAGLE
Your account number is:1023263
COUNTY.COLORADO,GRANTING A FRANCHISE
TO HOLY CROSS ENERGY.ITS SUCCESSOR:
AND ASSIGNS, TO LOCATE, BUILD,INSTALL
NSTRUT. PHAE.EXTEND
PROOF OF PUBLICATION MAINTAIN,
IRE,REPAIR UAND OPER TE INTO.WITH!!
AND THROUGH THE TOWN OF VAIL,ALL NEC
VAIL DAILY
THEARY
AND CONVENIENT FACILIT
PURCHASE. GENERATION,
RIANSMIES
SR
SION AND DISTRIBUTION OF ELECTRICAL EN-
ERGY. SELL AND DISTRIB.
STATE OF COLORADO UTE SAAD
ND
E ENERGYECCTRICALTOSTO THE RESI-
DENTS OF THE TOWN OF VAIL FOR LIGHT,
COUNTY OF EAGLE
HEAT,POWER CABLES,PURPOSES
ANDD
WIRES STRUNG THEREON, OR OTHERWISE
ON, OVER, UNDER, ALONG, ACROSS ANC
THROUGH ALL STREETS AND OTHER PUBLIC
I,Mark Wurzer,do solemnly swear that I am Publisher of WAYS N THE TOWN OF VAIL,AND SETTINI
FORTH DETAILS RELATED THERETO
the VAIL DAILY,that the same daily newspaper printed,in
whole or in part and published in the County of Eagle, Published279in the Vail Daily May 24. 2011
000096
State of Colorado,and has a general circulation therein;
that said newspaper has been published continuously and
uninterruptedly in said County of Eagle for a period of
more than fifty-two consecutive weeks next prior to the
first publication of the annexed legal notice or
advertisement and that said newspaper has published the
requested legal notice and advertisement as requested.
The VAIL DAILY 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 insertion;and
that the first publication of said notice was in the issue of
said newspaper dated 5/24/2019 and that the last
publication of said notice was dated 5/24/2019 in the issue
of said newspaper.
In witness whereof,I have here unto set my hand this day,
5/24/2019.
Mark Wurzer,Publisher
Subscribed and sworn to before me,a notary public in and
for the County of Eagle,State of Colorado this day
5/24/2019.
Jerilynn Medina,Notary Public
My Commission Expires: August 3,2020
JERI LYNN CCNA
NOTARY PUB15L''C
RTATE OFL'O num
ROTARY!DB R0.195eNYCGMMSSDNWPENALCUSTA N