Black Hills Energy Franchise Agreement Ordinance 2024
ORDINANCE NO. 2, SERIES 2024
AN ORDINANCE GRANTING A NONEXCLUSIVE FRANCHISE FROM THE CITY OF NEWCASTLE, WESTON COUNTY, WYOMING TO BLACK HILLS POWER, INC. d/b/a BLACK HILLS ENERGY, A SOUTH DAKOTA CORPORATION DOING BUSINESS IN THE STATE OF WYOMING, ITS SUCCESSORS AND ASSIGNS, TO OPERATE AN ELECTRIC UTILITY SYSTEM WITHIN THE CITY OF NEWCASTLE, WYOMING FOR PROVIDING ELECTRIC SERVICE TO THE CITY OF NEWCASTLE AND THE
INHABITANTS THEREOF AND ESTABLISHING THE TERMS AND CONDITIONS OF SAID FRANCHISE, INCLUDING THE EFFECTIVE DATE THEREOF.
WHEREAS, the City of Newcastle, Weston County, Wyoming
(hereafter “City”) previously granted a nonexclusive franchise to Black Hills Power, Inc. (“Company”), which franchise expires on August 8, 2024; and
WHEREAS, the City desires to extend and grant a new franchise to the Company at the current effective franchise fee of 3% as hereafter set forth; and
WHEREAS, Company desires to extend and receive a new franchise from the City,
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF
NEWCASTLE, WESTON COUNTY WYOMING
Section 1: City does hereby grant to Company, and to its successors and assigns, a nonexclusive right and franchise for a term beginning on the effective date of this Ordinance and extending until August 1, 2049, for the purpose of operating an electric utility system; and in connection therewith, City does hereby grant to Company the privilege to locate, construct, maintain, and operate in, on, and under the present and future streets, alleys, avenues, or other public places or ways within the city limits of City an electric light and power system to generate, transform, transmit, and distribute electric energy for light, heat, and power and other uses, including the right to erect and maintain poles, wires, and necessary and appurtenant equipment and facilities therefor for the term of this grant and to provide the necessary electric energy for light, heat, power, and other uses for the lighting of streets, public buildings, or other requirements of the City; all of the foregoing subject to the limitations, terms, and conditions herein specified, the laws of the State of Wyoming, and further subject to the making of the payments herein specified. City reserves the right at the end of each ten (10) year period from and after the effective date of this franchise, to renegotiate the provisions of this ordinance with Company, its successors or assigns, and in the event that such negotiations shall not have resulted in a mutually agreeable amendment to said ordinance within a period of ninety (90) days from the end of such ten (10) year period, then and in such event, City reserves the right to cancel this franchise by repeal of this ordinance within sixty (60) days following the said ninety (90) day period. If no renegotiation is instituted by City within said ninety (90) day period or if the franchise is not canceled within said sixty (60) day period, this franchise shall continue in full force and effect.
Section 2: Company shall erect and maintain all such facilities in accordance with good engineering practices and in such manner as not to interfere with the use of said streets for travel, and whenever it shall be necessary in the erection of such facilities to dig or in any manner to disturb or interfere with any of said streets, Company shall: (i) obtain and pay for all required permits from City and fully comply with all applicable ordinances, rules, and regulations of City; and
(ii) within a reasonable time after completion of work restore such streets to as good a condition as the same were in before the construction or disturbance and remove all construction debris from said streets. If at any time it shall be necessary to relocate any pole, conduit, or other facility of Company to permit City to make any public improvement or to build any public project, such relocation shall be made by Company at its own expense.
Section 3: Company shall have the right and privilege at its sole cost, risk, and expense of trimming all trees which overhang said streets in such a manner and to such extent as will prevent the branches or limbs or other parts of such trees from touching or interfering with its facilities; providing no such trees shall be trimmed or cut back further than may be necessary to prevent such interference and to allow the proper operation and maintenance of said facilities, and further providing that Company shall fully comply with all applicable ordinances, rules, and regulations of City
Section 4: As consideration for the franchise rights and contractual privileges granted by City under the franchise herein granted, Company shall assess, effective the first billing cycle after this franchise becomes effective, to residential and commercial customers within City, a franchise fee equivalent to 2% of Company’s Gross Revenues as defined herein. The Company will pay to City an amount equal to three percent (3%) of Company’s Gross Revenues as defined hereafter. The term “Gross Revenues” shall mean and be construed as the Company’s Gross Revenues derived from the sale of electrical energy to customers within the city limits of City; provided, however, that there shall not be included in such gross revenues:
(i) the amount received by the Company from city, county, state, school, and federal agencies for electrical services; and
(ii) any state, city, county, or other governmental entity excise, sales, or use tax levied on the provision of electrical energy within the city limits of City. In addition, the Company shall be allowed to reduce the amount of any gross revenues by any amounts determined to be uncollectable.
The franchise fee shall be paid four times a year by the last business day of the month in January, April, July, and October and the payments shall cover the previous three-month period.
Section 5: Company shall list the franchise fee collected from customers as a separate item on bills for utility service issued to their customers. If at any time the Wyoming Public Service Commission or other authority having proper jurisdiction prohibits such recovery, Company will no longer be obligated to collect and pay the franchise fee.
Section 6: During the term of this Ordinance, and so long as Company continues to make the payments herein specified, City shall not assess any additional license or occupation tax or levy any other excise tax upon Company; provided, however, that this provision shall not apply to ad valorem taxes levied against Company’s property located within the City.
Section 7: City shall have the right, at its sole expense and upon the provision of reasonable notice, to examine the books and records of Company which are subject to the provisions of this Ordinance for the purpose of verifying the accuracy of the payments made pursuant to this Ordinance.
Section 8: Company shall indemnify and hold harmless the City and its officers, employees, and officials against and from any and all claims, and all damages, costs, and expenses to which it or they may be subject to by reason of any acts of negligence of Company, or its agents or servants, in any manner arising out of the construction, maintenance, or operation of any property of Company in or on any of said streets.
Section 9: This Ordinance, upon becoming effective, repeals all prior franchise ordinances in conflict herewith.
Section 10: If any portion of this Ordinance is held or found to be invalid, the remainder of this Ordinance shall continue to be in full force and effect.
Section 11: Company shall give written acceptance of this franchise by filing same with the City Clerk within ten (10) days after the effective date of this Ordinance. If Company fails to file such written acceptance within the time provided or if Company fails to abide by any of the terms of this Ordinance, the rights, authority, and franchise hereby conferred shall expire, terminate, and be of no further effect.
Section 12: This Ordinance shall become effective as of the first day of the first month after passage and upon publication in accordance with the law.
Passed on first reading: May 20, 2024
Passed on second reading: June 3, 204
Passed, Approved, and Adopted on third reading this 17th day of June,2024
CITY OF NEWCASTLE
Pam Gualtieri, Mayor
Attest
Stacy Haggerty, City Clerk
(Publish June 27, 2024)