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TC Ord. No. 1980-20► r ORDINANCE NO. ~-80-20 Series of 1980 AN ORDINANCE GRANTING A FRANCHISE BY THE TOWN OF AVON, EAGLE COUNTY, COLORADO, TO HOLY CROSS ELECTRIC ASSOCIATION, INC., ITS SUCCESSORS AND ASSIGNS, TO LOCATE, BUILD, CONSTRUCT, ACQUIRE, PURCHASE, MAIN- TAIN, AND OPERATE INTO, WITHIN AND THROUGH THE TOWN OF AVON HEREIN DESCRIBED, ALL NECESSARY, NEEDFUL AND CONVENIENT POLES, POLE LINES, POSTS, WIRES, TRANSFORMERS, GUY POSTS AND GUY WIRES, APPARATUS, APPLIANCES AND WORKS, FOR THE PURCHASE, GENERATION, TRANSMISSION AND DISTRIBUTION OF ELECTRICAL ENERGY, AND TO FURNISH, SELL AND DISTRIBUTE SAID ELECTRICAL ENERGY TO THE INHABITANTS OF THE TOWN OF AVON HEREIN DESCRIBED, FOR LIGHT, HEAT AND POWER OR OTHER PUR- POSES BY MEANS OF CONDUITS, CABLES, POLES AND WIRES STRUNG THEREON, OR OTHERWISE, ON, OVER, UNDER, ALONG, ACROSS AND THROUGH ALL STREETS, ALLEYS, VIADUCTS, BRIDGES, ROADS, LANES AND OTHER PUBLIC WAYS AND PLACES IN SAID TOWN OF AVON, FIXING THE TERMS AND CONDITIONS THEREOF, AND SETTING FORTH DETAILS RELATING THERETO. WHEREAS, the operation of electrical utilities involves substantial use of the public streets and rights-of-way, frequent excavations in the public streets and rights-of-way, and the regular installation, maintenance and repair of many poles, lines and cables in, under and above the public streets and rights-of-way; and WHEREAS, the operation of electrical utilities places a substantial burden on the Town in its efforts to provide for the public safety, and efficiently maintain and administer the public streets and rights-of-way; and WHEREAS, considering the nature of electrical utilities and the burdens placed by such utilities on the Town, the providing of franchises for such utilities separately from other businesses and occupations is reasonable and necessary for the protection of the public; and WHEREAS, after study and negotiations by and between the Town of Avon and Holy Cross Electric Association, Inc., the parties have agreed to the following franchise; NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: Ord. Section 1. Definitions. Whenever the word "Town" is hereinafter employed, it shall designate the Town of Avon, Eagle County, Colorado, the Grantor, and whenever the word "Association" is used, it shall designate not only Holy Cross Electric Association, Inc., a Colorado corporation, the Grantee, but also its successors and assigns. Section 2. Franchise Granted - Use of Public Way. A. There is hereby granted to the Association the franchise right, privileges and authority to locate, build, construct, acquire, purchase, extend, maintain and operate into, within and through all of the said Town as the same is now constituted or as the same may be enlarged or expanded from time to time, all necessary, needful and convenient poles, pole lines, posts, wires, transformers, guy posts and guy wires, apparatus, appliances and works, for the pur- chase, generation, transmission and distribution of electrical energy, with.the right and privilege for the period and upon the terms and conditions hereinafter specified to furnish, sell, and distribute said electrical energy to the inhabitants of the Town in all areas, for light, heat and power or other purposes, by means of conduits, cables, poles with wires strung thereon, or otherwise, on, over, under, along, across and through any and all streets, alleys, viaducts, bridges, roads, lanes and other public ways and places in said Town, and on, over, under, along, across and through any extension, connec- tion with or continuation of the same and/or on, over, under, along, across and through any and all such new streets, alleys, viaducts, bridges, roads, lanes and other public ways and places as may be here- after laid out, opened, located or constructed within the territory now or hereafter included in the boundaries of said Town. B. The Association is further granted the right, privileges and authority to excavate in, occupy and use any and all streets, alleys, viaducts, bridges, roads, lanes and other public ways and places described in Section A of Section 2 hereof, in accordance with the ordinances of the Town of Avon, and under the supervision of properly constituted authority for the purpose of bringing electrical energy into, within and through the Town and supplying electrical energy to the inhabitants of the said Town and in the territory -2- Ord. - 0 adjacent thereto outside of the said Town, and further, provided prior ap- proval by the Design Review Board be obtained, to trim or cut down such trees and shrubbery and to control the growth of same as may be reasonably necessary to effect said purpose or purposes, provided, however, that the Association shall so locate its plants, substations, works, transmission and distribution structures, lines, equipment and conduits within said Town as to cause minimum interference with the proper use of streets, alleys, and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners whose property adjoins any of the said streets, alleys or other public ways and places. Should it become necessary for the Association, in exercising its rights and per- forming its duties hereunder, to interfere with any sidewalk, pavement, water main, sewer, or any other public or private improvement, the Association shall repair or cause to be repaired and restored to its original condition such sidewalk, graveled or paved street, road, alley water main, sewer, landscaping, trees, or other public or private improvement after the installation of its poles, conduits or other structures. C. The Association shall so maintain its structures, apparatus, equipment, poles, wires and conduits as to afford all reasonalbe protection against injury or damage to persons or property therefrom, and the Association shall save the Town harmless from all Liability or damage and all reasonable expenses necessarily accruing against the Town arising out of the negligent exercise by the Association of the rights and privileges hereby granted; provided, that the Association shall have had notice of the pendency of any action against the Town arising out of such exercise by the Association of said rights and privileges and be permitted at its own expense to appear and defend or assist in the defense of the same. D. If at any time it shall be necessary to change the position of any overhead distribution facilities of the Association to permit the Town to change street grades or make street or sidewalk improvements, such changes shall be made by the Association at its own expense. If it shall be necessary to change the position or location of, or to temporarily remove and replace any underground distribution lines or associated facilities at the request of the Town, the Association shall be entitled to charge the Town for the actual cost of such work. -3- Ord. ! • Prior to commencement of any such work, the Association shall submit to the Town a written itemized estimate of the costs. The provisions of this paragraph shall apply only to the easements, rights-of-way, streets, alleys and public ways, the use of which are granted to this Association by the terms of this Ordinance. E. The Association shall have the right to make such use of its poles and other property, other than the uses contemplated in this ordinance as it deems proper so long as such other use does not interfere with its ability to supply electrical energy. Section 3. Rates; Extensions; Rules and Regulations. A. The Association shall furnish electrical energy within the corporate limits of the Town or any addition thereto, to the inhabitants thereof, and to any person or persons or corporation doing business in the Town or any addition thereto, at the 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, on file with or fixed by The Public Utilities Commission of the State of Colorado, or by any other competent authority having jurisdiction in the premises. B. The Association shall not, as to rates, charges, service, facilities, rules, regulations or in any other respect make or grant any preference or advantage to any corporation or person or subject any corporation or person to any prejudice or disadvantage, provided that nothing in this grant shall be taken to prohibit the establishment from time to time of a graduated scale of charges and classified rate schedules to which any customer coming within an established classification would be entitled. C. The Association will from time to time during the term of this franchise make such.enlargements and extensions of its distribution system as the business of the Association and the growth of the Town justify, in accordance with its Standards for Service, Rules and Regula- tions, and Service Connection and Extension Policies for electric service concurrently in effect and on file with The Public Utilities Commission of the State of Colorado or other competent authority having jurisdiction in the premises. -4- Ord. D. The Association, from time to time, may promulgate such. rules, regulations, terms and conditions governing the conduct of its business, including the utilization of electrical energy and payment therefor, and the interference with, or alteration of any of the Association's property upon the premises of its customers, as shall be necessary to insure a continuous and uninterrupted service to each and all of its-customers and the proper measurement thereof and payment therefor. Two copies of all rules, regulations, terms and conditions governing the provisions of services to the residents of the Town of Avon and amendments thereto shall be filed promptly with.the Town Clerk to be made available for the inspection of the public. Section 4. Franchise Tax. As a further consideration for this franchise, and accepted by the Town in lieu of all occupancy, occupation and license taxes or other taxes on the right to do business, or other special taxes, assess- ments or excises upon the property of the Association (except ad valorem taxes and special assessments applicable to real property owned by the Associationl, or other levies that might be imposed, either as a franch- ise tax, occupation tax, occupancy tax, license tax, permit charge, or for the inspection of meters, poles, conduits or other property of the Association, and also in lieu of contractors license fees which would otherwise be chargeable to the Association, the Association shall pay to the Town a sum equal to three percent (.3%1 of its. gross revenue derived from the sale of electricity within the corporate limits of the Town for electrical energy furnished for light, heat or power, or other purposes. Payment shall be made on or before thirty (301 days after the end of each. quarter of each. calendar year for the three (3)-,month- period next previ.ous,. but shall be adjusted for the portions of the calendar quarters at the beginning and at the end of this franchise. For the purpose of ascertaining or auditing the correct amount to be paid under the provisions of this paragraph, the Association shall file with the Town Manager 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 Association from the sale of electric energy to consumers located within the boundaries of the Town within the preceding three (3) month period, -5- ..f. i i Ord. and the Town Manager or any official appointed by the Town Council of said Town shall have access to the books of said Association for the purpose of confirming the gross income received from operations within said Town. Section 5. Term - Review - Condemnation A. This ordinance shall be in full force and effect from and after its passage as by law required, and after approval by the Colorado Public Utilities Commission, and the terms, conditions and covenants hereof shall remain in full force and effect for a period of twenty (20) years from and after such approval by the Colorado Public Utilities Commission. B. All poles, pole lines, posts, wires, transformers, guy posts and guy wires, apparatus, appliances and works, conduits, plants, substations or other materials or objects pertaining thereto, used or placed by the Association within the Town shall be and remain the property of the Association. C. Nothing in this ordinance shall be so construed as to prevent the Association from assigning all of its rights, title or interest, gained or authorized under or by virtue of the terms of this ordinance. D. 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 inconsistent with 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. E. In the event, at any time during the twenty (20) year period of this franchise, the Town shall exercise the right reserved to it under its Charter to condemn the facilities of the Company within the physical limits of the Town, and thereby to revoke the privilege and authority to serve the inhabitants of the Town, as herein granted, or in any other way to revoke, rescind or limit such privilege and authority herein granted to the Association, then and in such event the Town shall, in addition to the obligation which may then exist to -6-- a a • Ord. pay to the Association just compensation and damages by reason of condemnation, or other damages or compensation by reason of such revocation of this Association's authority and privilege hereunder, be obligated to pay to the Association, as liquidated damages, and not as a penalty, an amount equal to the last previous quarterly pay- ment of the franchise fee paid by the Association hereunder, prior to commencement of such action, multiplied by the number of full quarter annual periods remaining under this franchise. F. The right to use and occupy the streets and public ways for the purposes herein set forth shall not be exclusive and the Town reserves the right to grant similar uses and other uses by way of fran- chise or revocable permit in said streets and public ways to any other person, partnership or corporation. Section 6. Severability If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaindng portions of this ordi- nance; 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, subsections, sentences, clauses or phrases be declared invalid. Section 7. Public Health, Safety and Welfare The Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and wel- fare of the Town of Avon and the inhabitants thereof. INTRODUCED, READ, AND ORDERED PUBLISHED, the day of , 1980. READ, PASSED, ADOPTED AND APPROVED this fvr'r~"".. day of 1980. M or ATTEST: Town Clerk -7- • INTRODUCED, PASSED ON SECOND READING, R V L, AND ORDERED PUBLISHED ONCE IN FULL, this) day of , 1980. This Ordinance will become effective on 1980. ATTEST: 1Je 44- to V. A pi, o r 7 STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AT 7:30 P.M. ON THE 14th DAY OF OCTOBER, 1980 AT THE TOWN HALL FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO.#80-20, SERIES OF 1980: AN ORDINANCE GRANTING A FRANCHISE BY THE TOWN OF AVON, EAGLE COUNTY, COLORADO, TO HOLY CROSS ELECTRIC ASSOCIATION, INC., ITS SUCCESSORS AND ASSIGNS, TO LOCATE, BUILD, CONSTRUCT, ACQUIRE, PURCHASE, MAINTAIN, AND OPERATE INTO, WITHIN AND THROUGH THE TOWN OF AVON HEREIN DESCRIBED, ALL NECESSARY, NEEDFUL AND CONVENIENT POLES, POLE LINES,POSTS, WIRES, TRANSFORMERS, GUY POST AND GUY WIRES, APPARATUS, APPLIANCES AND WORKS, FOR THE PURCHASE, GENERATION, TRANSMISSION AND DISTRIBUTION OF ELECTRICAL ENERGY, AND TO FURNISH, SELL AND DISTRIBUTE SAID ELECTRICAL ENERGY TO THE INHABITANTS OF THE TOWN OF AVON HEREIN DESCRIBED, FOR LIGHT, HEAT AND POWER OR OTHER PURPOSES BY MEANS OF CONDUITS,CABLES, POLES AND WIRES STRUNG THEREON, OR OTHERWISE, ON, OVER, UNDER, ALONG, ACROSS AND THROUGH ALL STREETS, ALLEYS, VIADUCTS, BRIDGES, ROADS, LANES AND OTHER PUBLIC WAYS AND PLACES IN SAID TOWN OF AVON, FIXING THE TERMS AND CONDITIONS THEREOF,:AND SETTING FORTH DETAILS RELATING THERETO. A copy of said Ordinance is attached hereto and is also on file at the office of the Town Clerk and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice given and published by order of the Town Council of the Town:,of Avon, Colorado. Dated this 26th day of September, 1980. TOWN OF AVON, COLORADO By own Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON SEPTEMBER 26, 1980: THE NORTHEAST SIDE OF THE BENCHMARK SHOPPING CENTER, AVON POST OFFICE, THE MAIN ENTRANCE OF EAGLE 17ALLEY BOWL, THE PESTER GAS STATION, AND THE TOWN OFFICES, SECOND FLOOR, BENCHMARK SHOPPING CENTER.