THE VILLAGE OF TAOS SKI VALLEY
ORDINANCE NO. 00-32
AN ORDINANCE GRANTING TO KIT CARSON ELECTRIC COOPERATIVE, INC., PERMISSION TO USE THE STREETS, ALLEYS, PUBLIC THOROUGHFARES, AND PUBLIC WAYS OF THE VILLAGE OF TAOS SKI VALLEY FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING AND OPERATING ITS FACILITIES NEEDED AND NECESSARY TO PROVIDE ELECTRICAL SERVICE TO ITS CONSUMERS IN THE VILLAGE OF TAOS SKI VALLEY, NEW MEXICO, UNDER SPECIFIED CONDITIONS; PRESCRIBING THE TERM; PROVIDING FOR CONDITIONS OF USE; PROVIDING FOR RELOCATION OF FACILITIES; PROVIDING FOR INDEMNIFICATION; AND PROVIDING FOR THE PAYMENT OF FRANCHISE FEES.
BE IT ORDAINED BY THE GOVERNING BODY OF THE VILLAGE OF TAOS SKI VALLEY, STATE OF NEW MEXICO.
SECTION 1. GRANT OF AUTHORITY.
The Village of Taos Ski Valley (hereinafter called the “Village”), hereby grants to KIT CARSON ELECTRIC COOPERATIVE, INC., its successors and assigns (hereinafter called “KIT CARSON”) the non-exclusive right and privilege to construct, erect, operate and maintain, in, upon, along, across, above, over and under the streets, alleys, public ways and public places now in use or dedicated, and all extensions thereof, and additions thereto, in the Village, poles, wires, cables, underground conduits, manholes and other electrical facilities necessary or proper for the maintenance and operation in the Village, in order to conduct KIT CARSON’S electric cooperative business; provided, however, that no poles or other facilities shall be placed where the same will interfere with any street, roadway or traffic control facilities or with any existing utilities and shall be placed in such a manner as to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the streets, alleys or public ways and places. To the extent possible, no future overhead electrical lines shall be installed within the Village of Taos Ski Valley. In addition, KIT CARSON will make all reasonable efforts to place current overhead electrical lines underground when repairing or replacing said lines.
A. Non-Exclusive Grant. The right to use and occupy the streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive and the Village reserves the right to grant a similar use of the streets, alleys, public ways and places, to any person, corporation or other legal entity at any time during the period of this franchise.
B. State Authority. This franchise is entered into pursuant to the authority granted the Village by Section 3-42-1, N.M.S.A. (1978 as amended).
SECTION 2. KIT CARSON’S RIGHTS, GENERALLY.
KIT CARSON is hereby authorized, licensed and empowered to do any and all things as may be necessary to be done and performed in executing the powers and enjoying the rights, powers and privileges herein mentioned and granted by this franchise.
SECTION 3. KIT CARSON’S OBLIGATIONS.
The rights described in Section 2 are subject to the obligation that the exercise of such rights does not conflict with water, sewer or other authorized preexisting installations, and provided that all work done in said streets, avenues, easements, rights-of-way, alleys, highways, sidewalks, paths, bridges, structures and other public places of the Village, by KIT CARSON, shall be done diligently at its own cost and expense and in a manner entirely satisfactory to the Village. KIT CARSON shall replace and restore all paving, sidewalk, driveway, or surface of any street or alley disturbed within a reasonable time, and restore as nearly as practicable all places excavated by it to the condition existing immediately prior to excavation. In the event of any change made by the Village to the public roads, streets, avenues, alleys or highways or in the grades of drains thereof, the poles, wires, cables, underground conduits, manholes and other facilities of KIT CARSON shall be relocated by KIT CARSON at its expense so as to conform to said changes. Provided, however, that before the Village shall authorize any changes requiring the relocation or changing of any poles, wires, cables, underground conduits, manholes and other facilities of KIT CARSON, the Village, when possible, shall give KIT CARSON at least sixty (60) days advance notice of the commencement of the contemplated changes, in writing, so it may have sufficient time in which to make recommendations intended to minimize its cost of resetting or changing its facilities.
SECTION 4. KIT CARSON LIABILITY.
KIT CARSON shall, at all times during the term of this franchise, be subject to all lawful exercise of the police power by the Village and to such regulations as the Village may, by resolution or ordinance, hereafter adopt. KIT CARSON shall hold the Village harmless from all loss sustained by the Village on account of any suit, judgement, execution, claim or demand whatsoever resulting from a claim of negligence on the part of KIT CARSON, its employees or agents in the construction or maintenance of its facilities in the Village. The Village shall notify KIT CARSON’s representatives in writing as soon as practicable, but in no event later than thirty (30) days, after the presentation of any claim or demand either by suit or otherwise made against the Village on account of any claim of negligence as aforesaid on the part of KIT CARSON.
SECTION 5. PLAN, DESIGN, AND COORDINATION OF CONSTRUCTION PROJECTS.
A. The Village will submit an annual forecast on or about July 1st following approval of the operating budget for construction and other similar work which may or will affect future or existing rights-of-way occupied by KIT CARSON facilities. The Village and KIT CARSON may hold such meetings as they deem necessary to exchange additional information with a view towards coordinating their respective activities.
B. It is recognized that, notwithstanding the foregoing, KIT CARSON and the Village each retains absolute discretion over the timing and other aspects of their proposed projects.
SECTION 6. HOUSEMOVING AND OTHER UNUSUAL USE.
Any person or corporation desiring to move a building or other structure along, or to make any unusual use of, the streets, alleys and public ways of the Village, which shall interfere with the poles, wires or facilities of KIT CARSON, shall pay to KIT CARSON a sum sufficient to cover the expense and damages incident to the cutting, altering and/or of the wires or other facilities of KIT CARSON and before a permit is given by the Village therefore, the applicant shall present a receipt from KIT CARSON showing the payment thereon was made. KIT CARSON, upon presentation of the permit, shall within a reasonable time thereafter, provide for and do such cutting, altering and moving of facilities as may be necessary to allow such moving or other unusual use of the streets, alleys, and public ways of the Village.
SECTION 7. CONSIDERATION.
As a further consideration for this franchise, KIT CARSON shall pay to the Village franchise payments in an amount equal to 3.0% of the monthly revenues, exclusive of all federal excise and state gross receipts taxes, received for basic electrical services furnished to consumers of KIT CARSON, not including “uncollectible” revenues related to those services, within the Village of Taos Ski Valley . Payment shall be made, to the Village, in quarterly installments within forty-five (45) days after the end of each calendar quarter during the term of this franchise. The Village agrees to restrict the use of 1% of the monthly revenues to improve and expand the street lighting within the Village’s corporate limits.
SECTION 8. INSPECTION OF BOOKS.
The Village shall have the right, at all reasonable times, to inspect and copy the books and records of KIT CARSON pertaining to KIT CARSON’s monthly recurring revenues for basic electrical services received from KIT CARSON’s consumers located within the limits of the Village.
SECTION 9. PAYMENT IN LIEU OF OTHER TAXES.
In consideration of the franchise payments set for this Section 7, it is expressly understood and agreed by KIT CARSON and the Village that these payments shall be in lieu of any and all other franchise, license, occupation, or other forms of excise or revenue taxes based upon or measured by the revenues, employees, payroll, or facilities of KIT CARSON, excepting, however, general ad valorem property taxes, special assessments for local improvements and sales or gross receipts taxes (all hereinafter referred to as “excepted taxes”). The franchise payments shall continue only so long as KIT CARSON is not prohibited from making the payments by any lawful authority having jurisdiction. Furthermore, if the Village does levy, charge or collect or attempt to levy, charge or collect any other franchise, license, occupation or other form of exercise or revenue taxes of the type above specified in this paragraph (other than excepted taxes), the obligation to make franchise payments hereunder shall be abated to the extent such other taxes are levied, charged or collected by the Village.
SECTION 10. ANNEXATION.
Upon any annexation of territory to the Village of Taos Ski Valley, monthly, recurring revenues for basic electrical services within the annexed territory shall be included in the base for computation of payments due to the Village. Such inclusions shall be effective thirty (30) days after written notice and description of such annexation by the Village has been delivered to KIT CARSON.
SECTION 11. TERM OF FRANCHISE.
The franchise and rights herein granted shall continue in force and effect for a term of ten (10) years after the effective date of this franchise.
SECTION 12. EFFECTIVE DATE.
This Ordinance shall become affective thirty (30) days after its enactment; provided KIT CARSON, within those thirty (30) days, shall have filed with the Village Clerk an unconditional acceptance thereof. Within ten (10) days after the filing of the acceptance, the Village Clerk shall acknowledge, in writing, the receipt of KIT CARSON’s acceptance.
SECTION 13. OBLIGATION OF VILLAGE.
The Village agrees to pay, to KIT CARSON in accordance with standard tariff schedules, the rates and charges for all electrical services rendered by KIT CARSON to the Village.
SECTION 14. CONFLICTING ORDINANCE REPEAL.
All prior Ordinances and parts of Ordinances in conflict with any provision of this Ordinance are hereby repealed.
SECTION 15. SEVERABILITY CLAUSE.
If any section, subsection, sentence, clause, word or phrase of this Ordinance is, for any reason, held to be unconstitutional or otherwise invalid by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the Ordinance and each section, subsection, sentence, clause, word or phrase thereof regardless of any one or more sections, subsections, sentences, clauses, words or phrases being declared unconstitutional or otherwise invalid.
PASSED, ADOPTED AND APPROVED THIS 7th day of September, 1999, at a regular meeting of the Village of Taos Ski Valley, State of New Mexico.
Vote: For 3 Against 0 .