HomeMy WebLinkAbout08186ORDINANCE NO. 8186
AN ORDINANCE GRANTING A NON - EXCLUSIVE
FRANCHISE TO BLACK HILLS /COLORADO ELECTRIC
UTILITY COMPANY, L.P. TO FURNISH AND SELL
ELECTRICITY TO THE CITY AND TO ALL RESIDENTS
WITHIN THE CITY, AND THE NON - EXCLUSIVE RIGHT TO
ACQUIRE, PURCHASE, CONSTRUCT, INSTALL, MAINTAIN,
OPERATE AND EXTEND INTO, WITHIN AND THROUGH
SAID CITY ALL FACILITIES REASONABLY NECESSARY FOR
THE GENERATION, PRODUCTION, SALE, PURCHASE,
EXCHANGE, TRANSMISSION AND DISTRIBUTION OF
ELECTRIC UTILITY SERVICE WITHIN AND THROUGH THE
CITY, TOGETHER WITH THE RIGHT TO MAKE
REASONABLE USE OF THE STREETS AND PUBLIC UTILITY
EASEMENTS OF THE CITY AS HEREIN DEFINED AS MAY
BE NECESSARY, AND FIXING THE TERMS, CONDITIONS,
AND REQUIREMENTS APPLICABLE TO ALL OF THE
FOREGOING
BE IT ORDAINED BY THE PEOPLE OF PUEBLO, COLORADO:
ARTICLE 1
DEFINITIONS
For the purpose of this Franchise, the following words and phrases shall have the
meaning given in this Article. When not inconsistent with context, words used in the
present tense include the future tense, words in the plural include the singular, and
words in the singular include the plural. The word "shall" is mandatory and "may" is
permissive. Words not defined in this Article shall be given their common and ordinary
meaning.
§1.1 "City" refers to the City of Pueblo, a municipal corporation of the State of
Colorado.
§1.2 "City Council" or "Council" refers to the legislative body of the City.
§1.3 "City Facilities" means all facilities owned by the City or by any enterprise of the
City, and all facilities used by the City, or any enterprise of the City, reasonably
necessary to provide any and all municipal services into, within and through the
City, and all facilities owned, leased, possessed or otherwise used by the City, or any
enterprise of the City, in connection with the provision of any services or functions
which the City, or any enterprise of the City, is now or may in the future be authorized
to provide or to exercise under its charter or applicable law.
§1.4 "Clean Energy" means energy produced from Renewable Energy
Resources, eligible energy sources, and by means of advanced technologies
that cost - effectively capture and sequester carbon emissions produced as a by-
product of power generation. For purposes of this definition, "cost" means all
those costs as determined and authorized by the PUC.
§1.5 "Company" refers to Black Hills /Colorado Electric Utility Company L.P. d /b /a
Black Hills Energy and its successors and assigns including affiliates or
subsidiaries that undertake to perform any of the obligations under this
Franchise.
§1.6 "Company Facilities" refer to all facilities owned or legally and beneficially used
by the Company reasonably necessary to provide electric service into, within and
through the City, including but not limited to plants, works, electric systems,
substations, transmission and distribution structures, lines, equipment, pipes,
mains, conduit, transformers, underground lines, meters, meter reading
devices, communication and data transfer equipment, control equipment, street
lights, wire conductors, cables and poles.
§1.7 Customer Service Center" means a business office conveniently located for
residential and business customer access within the City of Pueblo which is:
(a) Open daily during normal business hours (currently 8:00 am to 4:00 pm),
Monday through Friday, except holidays ( "ordinary business hours ");
(b) Staffed with company employees present onsite during ordinary business
hours set forth above;
(c) Available to provide general information and guidance and, if necessary, to
schedule an appointment, concerning:
1) contacting Company's Call Centers for initiation, termination,
cancellation and resumption of customer electrical service, or make changes to
existing service; and to answer questions concerning billing statements,
2) addressing general customer service issues, energy efficiency, ways in
which customer bills may be minimized, budget billing programs designed to
provide level payments by customers over the course of a year, Company and
third -party energy payment assistance programs, weatherization programs and any
other services which are available by Company to customers to assist customers in
paying their bills and minimizing their energy usage, and general questions and
complaints regarding all regulated services and activities of the Company
conducted pursuant to this Franchise or otherwise, or
3) redirecting customer specific issues to the appropriate Company
personnel responsible for assistance requested by the customer.
The Company's service center at 105 S Victoria Ave, Pueblo, Colorado may be
used for the "Customer Service Center" within the meaning of this definition.
§1.8 “Emergency” means a sudden or unforeseen situation or occurrence which
would lead a reasonably prudent person to believe that immediate action is
necessary to protect life, health, or property.
§1.9 “Enterprise” means an enterprise as defined in Colo. Const. Art. X, Sec. 20.
§1.10 "Energy Conservation" means the decrease in energy requirements of specific
customers during any selected time period, resulting in a reduction in end-use
services.
.§1.11 "Energy Efficiency" means the decrease in energy requirements of specific
customers during any selected period with end-use services of such
customers held constant.
§1.12 "Force Majeure" means the inability to undertake an obligation of this Franchise
due to a cause that could not be reasonably anticipated by a party or is beyond its
reasonable control, after exercise of best efforts to perform, including but not
limited to fire, strike, war, riots, acts of governmental authority, acts of God, floods,
epidemics, quarantines, labor disputes, unavailability or shortages of materials or
equipment or failures or delays in delivery of materials. Neither the City nor the
Company shall be in breach of this Franchise if a failure to perform any of the
duties under this Franchise is due to a Force Majeure condition.
§1.13 "Gross Revenues" refers to those amounts of money, which the Company
receives from the sale of electricity within the City under rates authorized by the
Public Utilities Commission, as adjusted for refunds, net write-offs of uncollectible
accounts, corrections or regulatory adjustments. Regulatory adjustments
include, but are not limited to, credits, surcharges, refunds, and pro-forma
adjustments including, by way of example, but not limited to purchase capacity
cost adjustments, fuel cost adjustments, transmission cost adjustments or other
adjustments) pursuant to federal or state regulation. "Gross Receipts" shall include
any revenues from the sale of electricity to the City. The term “Gross
Revenues” shall also include any amounts of money which the Company
receives from the retail wheeling of electricity in the City but shall not include
any amounts received for wholesale wheeling.
§1.14 "Other City Property" refers to the surface, the air space above the surface and
the area below the surface of any property owned or controlled by the City or
hereafter held by the City, that would not otherwise fall under the definition of
"Streets." As to any Company Facilities authorized on Other City Property, the
terms of this Franchise shall control except to the extent such Franchise terms
are inconsistent with the terms of any easements, rights-of-way, licenses or
similar rights held by the Company on such Other City Property.
§1.15 "Private Project" refers to any project which is not covered by the definition of
"Public Project."
§1.16 "Public Project" refers to (1) any public work or improvement within the City that
is wholly or beneficially owned by the City or an enterprise of the City, or which
is being acquired by the City or enterprise of the City under a lease-purchase
agreement; or (2) any public work or improvement within the City where fifty
percent (50%) or more of the funding is provided by any combination of the City,
any enterprise of the City, the federal government, the State of Colorado, or
Pueblo County; or (3) a relocation project necessitated or reasonably required by
changes to, or realignment of, any road system or utility system owned by the City
or by any City enterprise.
§1.17 "Public Utilities Commission" or "PUC" or “Commission” refers to the Public
Utilities Commission of the State of Colorado or other state agency succeeding to
the regulatory powers of the Public Utilities Commission.
§1.18 "Public Utility Easement" refers to any easement over, under, or above public or
private property, lawfully acquired by or dedicated generally for public utility use
and the placement of public utility facilities, including but not limited to Company
Facilities. Public Utility Easement shall not include any easement for the use of
the Company that is located within the Streets or in Other City Property or any
easements, rights-of-way or licenses or similar rights held by the Company on
any other property located in the City limits.
§1.19 "Renewable Energy Resources" means any eligible renewable energy
resource as defined in any federal or state law establishing a renewable
portfolio standard, such as § 40-2-124(1)(a), C.R.S., as the same shall be
amended from time to time, or any similar statute hereafter enacted.
§1.20 "Residents" refer to all persons, businesses, industries, governmental agencies,
including the City, and any other entity whatsoever, presently located or to be
hereinafter located, in whole or in part, within the territorial boundaries of the
City.
§1.21 "Streets" or "City Streets" refers to the surface, the air space above the surface
and the area below the surface of any City dedicated streets, alleys, sidewalks,
bridges, roads, viaducts, lanes, public easements, and other public rights-of-way
within the City. Streets shall not include Public Utility Easements or park
properties.
§1.22 "Street Lighting Facilities" refers to all Company Facilities necessary to provide
Street Lighting Service under a Street Lighting agreement with City.
§1.23 "Street Lighting Service" refers to the illuminationof Streets and Other City
Property by means of Company-owned non-ornamental street lights and
Company-owned ornamental street lights located in the City or along the Streets
adjacent to the City limits thereof, supplied from Company's overhead or
underground electric distribution system.
§1.24 "Supporting Documentation" refers to all information reasonably required in
order to allow the Company to design and construct any work performed under
the provisions of this Franchise.
§1.25 "Tariffs" refer to those tariffs of the Company on file and in effect with the PUC.
§1.26 "Traffic Facilities" refers to any City-owned or authorized traffic signal, traffic
signage or other traffic control or monitoring device, equipment or facility, including
all associated controls, connections and other support facilities or improvements,
located in any Streets or Other City Property.
§1.27 "Utility Service" refers to the regulated sale of electricity and any other regulated
services by Company to Residents under rates approved by the Commission.
ARTICLE 2
GRANT OF FRANCHISE
§2.1 Grant of Franchise.
A. Grant. The City hereby grants to the Company, subject to all conditions,
limitations, terms, and provisions contained in this Franchise, the non-exclusive
right to make reasonable use of City Streets to do the following:
(1) To furnish and sell electricity to the City and to all Residents within
the City, under tariffs on file with the PUC, and to otherwise carry out the terms
of this franchise.
(2) Subject to the term, conditions, and provisions contained in this
Franchise, the City also hereby grants to the Company a non-exclusive right to
construct, install, maintain, and operate all facilities reasonably necessary to
provide electricity within the City by reasonable non-exclusive use of said City
Streets, as may be necessary to carry out the terms of this Franchise.
(3) These rights and obligations shall extend to all areas of the City, as it
is now constituted and to additional areas as the City may increase in size by
annexation or otherwise, which are within the service territory of the Company,
as established by the Commission.
(4) To acquire, purchase, construct, install, locate, maintain, operate,
and extend into, within and through the City all Company Facilities reasonably
necessary for the generation, production, manufacture, sale, purchase, exchange,
transmission, transportation and distribution of electric utility service within and
through the City.
B. Street Lighting Service. The rights granted by this Franchise encompass
the nonexclusive right to provide Street Lighting Service as directed by the City,
and the provisions of this Franchise shall apply with full and equal force to Street
Lighting Service provided by the Company. Wherever reference is made in this
Franchise to the sale or provision of Utility Service, these references shall be
deemed to include the provision of Street Lighting Service. Street Lighting
Service within the City shall be governed by tariffs on file with the Colorado PUC,
and pursuant to the terms set forth in a separate "Street Lighting Agreement”
entered into between the parties concurrently with this Franchise.
C. Customer Service Office and Customer Payment Locations. During the
term of this Franchise, the Company shall maintain a Customer Service Office
in Pueblo. In addition, for the convenience of its customers, the Company shall
maintain the payment drop box at its Customer Service Office and customer
payment locations with at least two (2) retailers in Pueblo that do not provide
payday lending, pawn service or cash advances.
§2.2 Conditions And Limitations.
A. Scope of Franchise. The grant of this Franchise shall extend to all areas of
the City as it is now or hereafter constituted; however, nothing contained in this
Franchise shall be construed to authorize the Company to engage in activities
other than the provision of electric utility service or in areas not expressly
authorized by the Commission.
B. Subject to City Usage. The authorization granted herein is subject to the
City's prior and paramount right to use of the Streets, public easements and other
public places for public or municipal purposes, and is also subject to the City's
exercise of its lawful police power, including, but not limited to, planning, zoning,
subdivision, permit and building code requirements.
C. Prior Property Interests Not Revoked. This grant is not intended to revoke
any prior license, easement, or right to use real property and such licenses,
easements or rights of use are hereby affirmed. Such rights shall, however, be
governed by the terms of this Franchise.
D. Franchise Not Exclusive. The authorization to use and occupy said
Streets, Public Utility Easements, and other public places for the purposes set
forth herein is not, and shall not be deemed to be, an exclusive Franchise, and
the City reserves the right to make or grant a similar authorization to such use of
Streets, Public Utility Easements and other public places to any other person, firm
or corporation.
E. Rights Retained. The City retains the right:
(1) To terminate the Franchise as provided in Article 18 for substantial
misuse, substantial non-use or material failure of Company to substantially
comply with the provisions hereof,
(2) To use, control and regulate the use of Streets, Public Utility
Easements and other public places and the space above and beneath them,
including, without limitation the right to perform work on its Streets, roadways,
rights of way, Public Utility Easements and public places, by constructing, altering,
renewing, paving, widening, grading, blasting or excavating; the right to build and
install systems, facilities and projects of any nature; and the right to require
relocation of Company’s facilities in accordance with the terms of this Franchise.
(3) To require proper and adequate extension of plant, facilities and
service consistent with the police powers of the City and the Public Utilities Laws,
Commission rules and the Company’s Commission-approved tariffs,
(4) To require the maintenance of plant, facilities and service consistent
with the police powers of the City and the Public Utilities Laws, Commission rules
and the Company’s Commission-approved tariffs,
(5) To establish reasonable standards of service and quality of products
and to prevent discrimination in service or rates consistent with the police powers
of the City and the Public Utilities Laws, Commission rules and the Company’s
Commission-approved tariffs,
(6) To require continuous and nondiscriminatory service to residence in
accordance with the terms of this Franchise throughout the entire period hereof,
consistent with the police powers of the City and the Public Utilities Laws,
Commission rules and the Company’s Commission-approved tariffs,
(7) To impose such other necessary general regulations for the safety,
welfare and accommodation of the public as permitted or required by the Pueblo
City Charter or municipal ordinances.
F. No Other Rights Conferred. This Franchise does not confer rights upon
Company other than as expressly provided herein. No privilege or power of
eminent domain is bestowed by this grant. No right or privilege passes, or is
conferred, by implication under this Franchise Agreement. Nothing herein
precludes Company from exercising any statutory powers of eminent domain
provided under federal or state law. Nothing herein grants any rights to Company
in or upon Other City Property.
G. No Warranty. The grant of the Franchise is not a warranty of title or any
other property interest in any Street, Public Utility Easement, or other public place.
H. Waiver. Both parties waive as of the effective date of this Franchise
Agreement, any claim or defense that any provision of this Franchise Agreement,
as it exists on the effective date of this Franchise Agreement, is unenforceable or
otherwise invalid or void. Neither party waives the right to challenge the validity of
any applicable law.
§2.3 Effective Date and Term.
A. Term. The term of the franchise granted by this Ordinance shall be for
twenty (20) years. This Franchise shall take effect at 12:00 am on August 12,
2010, and shall supersede any prior Franchise grants to the Company by the
City. This Franchise shall terminate at 11:59.99 pm on August 12, 2030, unless
extended by mutual consent.
B. Execution. The Company shall execute this Franchise and deliver five (5)
executed originals to the City Manager prior to final approval by the City Council of
the ordinance referring the grant of this Franchise to the qualifying taxpaying
electors of the City at a duly called election. The Franchise shall only become
effective upon the majority vote of the qualified taxpaying electors voting
thereon. The question of its being granted shall be submitted to such vote by
ordinance, upon deposit with the Director of Finance of the expense (to be
determined by the Director of Finance) of such submission by the Company for
the Franchise. Within one week after effective date of the ordinance approving
this Franchise, the President of the City Council and other necessary or proper
officials of the City are hereby authorized and directed to sign this Franchise in the
name of the City, and the City Clerk is hereby authorized and directed to attest to
the same under seal of the City, and to do all things necessary for the delivery of
this Franchise at a duly called election.
C. Acceptance and Obligations. The grant of the Franchise shall not become
effective unless and until Company has (a) filed an unconditional acceptance of
the Franchise grant in the form appended hereto as Exhibit “A”; and (b) made all
payments, posted all securities and guarantees, and supplied all information that
it is required to supply prior to or upon the effective date of the Franchise.
Company shall file with the city clerk its written unconditional acceptance of this
Franchise and all of its terms and provisions at least ten (10) days prior to the
special municipal franchise election. Company shall file with the city clerk its
written ratification thereof, in the form appended hereto as Exhibit “B” within ten
(10) days after the approval of this ordinance by the qualified electors of the City
at said special municipal franchise election. If Company shall fail to timely file its
written acceptance or ratification as herein provided, this Franchise shall be and
become null and void.
D. Condition Precedent.
(1) Concurrently with this Franchise, the City and the Company have agreed to
terms on a "Street Lighting Agreement (the "Street Lighting Agreement"). The
Street Lighting Agreement shall be effective concurrently with this Franchise and
the Company shall signify its acceptance of the Street Lighting Agreement by
executing the Street Lighting Agreement and delivering five (5) executed
originals to the City Manager concurrently with its delivery of the executed
originals of this Franchise. Failure to execute and deliver the Street Lighting
Agreement to the City in accordance with this section shall render this
Franchise void and of no further force and effect.
ARTICLE 3
CITY POLICE POWERS
§3.1 Police Powers. Unless otherwise pre-empted by state or federal law, all
ordinances of general application, including, but not limited to, zoning and all
other land use ordinances, building, fire, health, electrical, plumbing and
mechanical codes, now in existence or hereafter enacted by the City, shall be
fully applicable to the exercise of this Franchise, and Company shall comply
therewith. Unless pre-empted by state or federal law, the City expressly
reserves, and the Company expressly acknowledges the City's right to adopt,
from time to time, in addition to the provisions contained herein, such laws, charter
provisions, ordinances, rules and regulations, as it may deem necessary in the
lawful exercise of its governmental powers, which may include the imposition of
non-discriminatory fees payable by the Company and other businesses to
defray costs incurred by the City in supervising and regulating the Company
and other businesses. The City acknowledges the Company’s right to oppose
the adoption of such laws, charter provisions, ordinances, rules and
regulations. If the City considers making any substantive changes in its local
codes or regulations that in the City's reasonable opinion will substantially and
materially impact the Company's operations in the City's Streets, the City shall
make a good faith effort to advise the Company of such consideration; provided,
however, that lack of notice shall not be justification for the Company's non-
compliance with any applicable local requirements.
§3.2 Regulation of Streets or Other City Property. The Company expressly
acknowledges the City's right to enforce all ordinances, resolutions and
regulations concerning the Company's access to or use of the Streets, including
requirements for permits.
§3.3 Use of Streets Limited. Streets within the City shall not be occupied by or used
by Company except under provisions of this Franchise and as otherwise available
for use by the general public. Company shall not use City Streets to store or park
company vehicles when such vehicles are not in active use, but shall store same
on off-street parking areas provided or leased by Company for such purpose.
§3.4 Use of Utility Poles. This Franchise shall not be deemed to expressly or
impliedly authorize the Company to utilize poles or conduits owned by any public
or private utility which are located within the Streets, without the express consent
of the utility, including the City.
ARTICLE 4
FRANCHISE FEE
§4.1 Franchise Fee.
A. Fee. In partial consideration for the Franchise, which provides for the
Company's use of City Streets, which are valuable public properties acquired and
maintained by the City at great expense to its Residents, and in recognition that
the grant to the Company of the use of City Streets is a valuable right, the
Company shall collect from its customers and shall pay to the City a sum equal to
three percent (3%) of all Gross Revenue. To the extent required or provided for
by law, the Company shall collect this fee from a surcharge upon City residents,
including businesses, who are customers of the Company. Included within
“Gross Revenue” shall be all amounts paid to the Company by the City or any
of its departments, including amounts paid by the Board of Water Works of
Pueblo, Colorado for its meters located within the City.
B. Obligation in Lieu of Fee. In the event that the Franchise fee specified herein
is declared void for any reason by a court of competent jurisdiction, unless
prohibited by law, the Company shall be obligated to pay the City, at the same
times and in the same manner as provided in the Franchise, an aggregate amount
equal to the amount which the Company would have paid as a Franchise fee as
partial consideration for use of the City Streets. To the extent required by law, the
Company shall collect the amounts agreed upon through a surcharge upon Utility
Service provided to City Residents, or at the option of the City the City shall
have the right to impose any lawful occupation fees or similar tax reasonably
equivalent on an annual basis to said franchise fee.
C. Changes in Utility Service Industries. The City and the Company
recognize that utility service industries are the subject of restructuring initiatives
by legislative and regulatory authorities, and are also experiencing other changes
as a result of mergers, acquisitions, and reorganizations. Some of such
initiatives and changes have or may have an adverse impact upon the Franchise
fee revenues provided for herein. In recognition of the length of the term of this
Franchise, the Company agrees that in the event any such initiatives or changes
adversely impact the Franchise fee revenues, to the extent permitted by law, upon
receiving a written request from the City, the Company will cooperate with and
assist the City in modifying this Franchise to provide for an amount in Franchise
fees or some other form of compensation that may be assessed to the Company’s
customers in the City and that will provide the same level of funding as the amount
of Franchise fees that would have been paid to the City prior to such initiatives and
changes.
§4.2 Remittance of Franchise Fee.
A. Remittance Schedule. Franchise fee revenues shall be remitted by the
Company to the City as directed by the City in monthly installments not later than
thirty (30) days following the close of each month. Upon written request of the City,
the Company shall provide to the City at the time of remittance of each installment
of the Franchise Fee a copy of all calculations and supporting documentation
(sometimes referred to as “work papers”) used in calculating the installment then
paid. On or before November 1 of each year during the term of this Franchise, the
Company shall provide the City with its estimate of the total Franchise Fee which it
estimates may be paid to the City for the next succeeding calendar year. All
franchise fee payments shall be made by check payable to the City, or upon
mutual agreement, by electronic funds transfer, made to a City bank account
identified by the Director of Finance of the City of Pueblo.
B. Correction of Franchise Fee Payments. In the event that either the City or
the Company discovers that there has been an error in the calculation of the
Franchise fee payment to the City, it shall provide written notice to the other party of
the error. If the party receiving the written notice of error does not agree with the
written notice of error, that party may challenge the written notice of error pursuant to
Section 4.2.E of this Franchise; otherwise, the error shall be corrected in the next
monthly payment. However, if the error results in an overpayment of the Franchise
fee to the City, and said overpayment is in excess of Ten Thousand Dollars
($10,000.00), credit for the overpayment shall be spread over the same period the
error was undiscovered. All Franchise fee underpayments shall be corrected in the
next monthly payment, together with interest computed at the rate set by the PUC for
customer security deposits held by the Company, from the date when due until the
date paid. In no event shall either party be required to fund or refund any overpayment
or underpayment made as a result of a Company error which occurred more than
three (3) years prior to the discovery of the Company error.
C. Change of Franchise Fee. The City Council during the year 2013 and every
third year thereafter during the term of this franchise, upon giving sixty (60) days
notice to the Company of its intention to do so, may reconsider the consideration to
be paid by the Company under this article. If the City Council decides that the
franchise fee should be increased or decreased, it shall provide for such increase or
decrease by ordinance. The Company agrees to pay whatever franchise fee is so
established by the City in this section; provided, however, no increase shall exceed
1% of the annual Gross Revenues, and further provided, that the cumulative
aggregate increases shall not result in the franchise fee being greater than 5% of
the annual Gross Revenues. The City shall only raise the franchise fee on
Company’s customers if it also raises the franchise fee of any and all other electric
franchisees granted an electric franchise to the same level imposed on Company
and its customers. The City will decrease the franchise fee imposed on Company
and its customers to the level imposed on the other electric franchisees if the City
decreases the franchise fee of any other electric franchisee.
D. Reconciliation and Audit of Franchise Fee Payments.
(1) The City shall endeavor to keep the Company advised of all
annexations into the City so that the Company may timely change its billing to
all customer meters in the annexed area to change the associated taxes and to
charge the franchise fee. Additionally, the City shall assist the Company, as
requested, in identifying any customer meters for which the City has agreed to
waive or reduce sales taxes or the franchise fee for any period of time.
(2) Every two (2) years commencing, at the end of 2012, the Company
shall conduct an internal audit to investigate and determine the correctness of
the Franchise fee paid to the City during the prior period. In connection with
such audit, as requested, the City will assist the Company in reconciling its
records with City records so that Company may confirm the accuracy of its
Franchise Fee payments. The Company shall provide a written report to the
City Manager containing the audit findings regarding the Franchise fee paid to
the City for the previous period. The Company shall also supply such
supporting documents as the City may reasonably request.
(3) The City may, at any time, conduct its own audit at its own
expense, and the Company shall cooperate fully, including, but not necessarily
limited to, providing the City's auditor with all information reasonably necessary
to complete the audit.
(4) If the results of a City audit conducted pursuant to subsection D(3)
concludes that the Company has underpaid the City by two percent (2%) or
more, in addition to the obligation to pay such amounts to the City, the
Company shall also pay all costs of the audit.
E. Fee Disputes. Either party may challenge any written notification of
error as provided for in Section 4.2.B of this Franchise by filing a written notice to
the other party within thirty (30) days of receipt of the written notification of error.
The written notice shall contain a summary of the facts and reasons for the
party's notice. The parties shall make good faith efforts to resolve any such notice
of error before initiating any formal legal proceedings for the resolution of such
error. The prevailing party in any formal legal proceeding shall be awarded
recovery of all of its attorney’s fees and costs incurred in pursuing legal
proceedings.
F. Report Regarding Pole Attachments. Upon written request by the City,
but not more than once per year, the Company shall supply the City with reports,
in such formats and providing such details as reasonably requested by the City, of
all persons or entities that have Company-permitted pole attachments, or which
use available space in company conduits, on Company Facilities within the City,
and the names and addresses of each such person or entity.
§4.3 Franchise Fee Payment Not in Lieu of Permit or Other Fees. So long as the
Company performs its obligations under this Franchise Agreement, including
payment of the franchise fee, the Company will be exempt from the payment of
any license fees or license charges to the City, but payment of the Franchise fee
does not exempt the Company from any other lawful tax or fee imposed generally
upon persons doing business within the City, including any sales or use tax, fee for
a street closure permit, pavement impact fee, excavation permit, a street cut
permit, or other lawful permits hereafter required by the City, except that the
Franchise fee provided for herein shall be in lieu of any occupation or similar
tax for the use of City Streets. If for any reason the Company does not make
payment of the Franchise fee, the City may institute such license fee, license
charge, occupation tax or other, similar tax for use of City Streets, as well as
exercising other remedies available under the terms of this Franchise.
ARTICLE 5
ADMINISTRATION OF FRANCHISE
§5.1 City Designee. The City Manager shall designate in writing to the Company an
official having full power and authority to administer the Franchise. The City may
also designate one or more City representatives to act as the primary liaison
with the Company as to particular matters addressed by this Franchise and
shall provide the Company with the name and telephone numbers of said City
representatives. The City may change these designations by providing written
notice to the Company. The City's designee shall have the right, at all
reasonable times, to inspect any Company Facilities in City Streets.
§5.2 Company Designee. The Company shall designate a representative to act as
the primary liaison with the City and shall provide the City with the name,
address, and telephone number for the Company's representative under this
Franchise. The Company may change its designation by providing written notice
to the City. The City shall use this liaison to communicate with the Company
regarding Utility Service and related service needs for City facilities.
§5.3 Coordination of Work.
A. The Company agrees to meet with the City's designee, upon request, at a
mutually agreeable time for the purpose of reviewing, implementing, or modifying
mutually beneficial procedures for the efficient processing of Company bills,
invoices and other requests for payment.
B. The Company and City agree to mutually coordinate the Company’s
activities in City Streets. The City and the Company will meet annually, in the
month of October of each calendar year, at a time and place mutually agreed,
to exchange their respective short-term and long-term forecasts and/or work
plans for construction and other similar work which may affect City Streets. The
City and Company shall hold such meetings as either deems necessary to
exchange additional information with a view towards coordinating their
respective activities in those areas where such coordination mayprove
beneficial and so that the City will be assured that all provisions of this
Franchise, building and zoning codes, and air and water pollution regulations
are complied with, and that aesthetic and other relevant planning principles
have been given due consideration.
ARTICLE 6
SUPPLY, CONSTRUCTION, AND DESIGN
§6.1 Purpose. The Company acknowledges the critical nature of the municipal
services performed or provided by the City to the Residents which require the
Company to provide prompt and reliable Utility Service and the performance of
related services for City facilities. The City and the Company wish to provide
for certain terms and conditions under which the Company will provide Utility
Service and perform related services for the City in order to facilitate and
enhance the operation of City Facilities. They also wish to provide for other
processes and procedures related to the provision of Utility Service to the City.
§6.2 Supply. Pursuant to its duties and obligations under Colorado statutes and
Colorado Public Utility Commission regulations, the Company shall take all
reasonable and necessary steps to assure an adequate supply of electricity to
the City and its residents, at just and reasonable rates.
§6.3 Service to City Facilities, Charges to the City. The parties acknowledge the
jurisdiction of the Colorado PUC over the Company's regulated electric retail
rates. Service to the City shall be provided at the rates set forth in the
Company’s Commission-approved tariff as the same may be amended from
time to time pursuant to Commission order. No charges to the City by the
Company for Utility Service shall exceed the lowest charge for similar service or
supplies provided by the Company to any other similarly situated customer of
the Company. The City has the right to intervene in all dockets filed by the
Company with the Commission including dockets to establish the Company’s
rates.
§6.4 Restoration of Service.
A. Notification. The Company shall provide to the City daytime and nighttime
telephone numbers of a designated Company representative from whom the City
designee may obtain status information from the Company on a twenty-four
(24) hour basis concerning interruptions of Utility Service in any part of the City.
B. Restoration. In the event the Company's electric system, or any part thereof,
is partially or wholly destroyed or incapacitated, the Company shall use due
diligence to restore such systems to satisfactory service within the shortest
practicable time, or provide a reasonable alternative to such system if the Company
elects not to restore such system.
§6.5 Obligations Regarding Company Facilities.
A. Company Facilities. All Company Facilities within City Streets
shall be maintained in good repair and condition.
B. Company Work Within the City. All work within City Streets performed or
caused to be performed by the Company shall be done:
(1) in a good and workmanlike manner;
(2) in accordance with all applicable laws, ordinances, and regulations;
and,
(3) with all applicable permitting and other fees and charges paid in full.
Additionally, consistent with the nature of the project and the conditions in effect
during the project, the Company will endeavor to complete such work in a timely
and expeditious manner and in a manner which minimizes inconvenience to the
public.
C. No Interference with City Facilities. Company Facilities shall not interfere
with any City Facilities, facilities of City enterprises, special districts or other
municipal or quasi-municipal uses of City Streets and rights of way,
including, but not limited to: water facilities, sanitary or storm sewer facilities,
telecommunication facilities, other communication facilities, traffic signal lights,
street lights or other City or authorized public uses of the Streets; and if and
where Company Facilities may be authorized upon Other City Property,
Company Facilities shall not interfere with City’s present and future use of
Other City Property. Company shall endeavor to install and maintain Company
Facilities in City Streets (and, if and where authorized, in Other City Property)
so as to minimize interference with other property, trees, and other improvements
and natural features in and adjoining the Streets, provided, however, that
Company shall not be prevented from engaging in such lawful activities as may
be required to maintain the safety and reliability of Company’s Facilities.
Company Facilities shall be located and installed and maintained in conformity
with the National Electrical Safety Code.
D. Permit and Inspection. The installation, maintenance, renovation, and
replacement of any Company Facilities in the City Streets and Public Utility
Easements (and, if and where authorized, in Other City Property) by or on
behalf of the Company shall be subject to applicable permit, inspection and
approval requirements of the City, payment of all required fees, and posting of
any required securities (unless waived). Such permit, inspection and approval
requirements may include, but shall not be limited to the following matters:
location of Company Facilities within the City Streets and Public Utility Easements
(and, if authorized, in Other City Property), cutting and trimming of trees and
shrubs (such as the requirement to use licensed tree trimmers), and disturbance
of pavement, sidewalks, and surfaces of City Streets or Other City Property.
The City shall not be arbitrary or capricious in permitting, inspection or
approval processes. The Company agrees to cooperate with the City in
conducting inspections and shall promptly perform any remedial action lawfully
and reasonably required by the City pursuant to any such inspection. Except in
emergency circumstances, prior to construction of any new generation plant,
substations, transmission facilities, buildings, or similar structures within the
City, the Company shall furnish to the City the plans for such structures.
E. Compliance. The Company shall comply with the requirements of all
municipal laws, ordinances, regulations, permits, and standards, including
but not limited to requirements of all building and zoning codes, and
requirements regarding curb and pavement cuts, excavating, digging, and
other construction activities. The Company shall, by contract, require that its
contractors also comply with the requirements of all municipal laws,
ordinances, regulations, permits, and standards, including but not limited to
requirements of all building and zoning codes, and requirements regarding
curb and pavement cuts, excavating, digging, and other construction activities
and hold the necessary licenses and permits required by law.
F. Increase in Voltage. The Company shall reimburse the City for the cost of
upgrading the electrical system or facility of any City building or facility that uses
Utility Service where such upgrading is caused or occasioned by the
Company's decision to increase the voltage of delivered electrical energy.
G. As-Built Drawings. Upon reasonable written request of the City designee,
the Company shall provide, within 14 days of the request, as-built drawings of any
Company Facility installed within the City Streets or contiguous to the City
Streets. As used in this section, as-built drawings refers to the facility drawings as
maintained in the Company's geographical information system or any
equivalent electronic or paper-based system. The Company shall not be
required to create drawings that do not exist at the time of the request.
H. No Third Party Rights. Nothing in this Article 6 shall be construed to
provide rights to third parties nor shall it excuse any third-party from liability
caused by negligent or intentional action.
§6.6 Excavation and Construction Related Damages. The Company shall remedy,
or caused to be remedied, within a reasonable time, all damage caused by the
Company or its contractors to private property located adjacent to Streets or
dedicated easements caused by the Company’s excavation or construction
activities in the City Streets or dedicated easements.
§6.7 Restoration of City Streets.
A. When the Company does any work in or affecting the City Streets or
Other City Property (if and where authorized), the Company shall, upon
completion, without cost to the City, promptly remove any obstructions therefrom
and restore such City Streets or Other City Property to a condition that meets
applicable written City standards. If weather or other conditions do not permit the
complete restoration required by this Section, the Company may, with the
approval of the City, temporarily restore the affected City Streets or Other city
Property, provided that such temporary restoration is without cost to the City and
provided further that the Company promptly undertakes and completes the
required permanent restoration when the weather or other conditions no longer
prevent such permanent restoration. Upon the request of the City, the Company
shall restore the Streets or Other City Property to a better condition than existed
before the work was undertaken, provided that the City shall be responsible for
any additional costs of such restoration. If the Company fails to promptly restore
the City Streets or Other City Property as required by this Section, and if in the
reasonable discretion of the City immediate action is required for the protection of
public health and safety, the City may, upon giving three (3) days' written notice to
the Company, restore such City Streets or Other City Property or remove the
obstruction therefrom; provided however, that the City’s actions shall not
unreasonably interfere with Company Facilities. The Company shall be
responsible for the actual cost incurred by the City to restore such City Streets or
Other City Property or to remove any obstructions therefrom. In the course of its
restoration of City Streets or Other City Property under this Section, the City
shall not perform work on Company facilities unless specifically authorized by the
Company in writing on a project by project basis and subject to the terms and
conditions agreed to in such authorization.
B. To the extent reasonably practicable, the Company will endeavor to
accommodate the reasonable desires of any property owner respecting location
within easements or rights-of-way traversing private land of above ground boxes
or appurtenances constituting a part of the Company Facilities. Additionally, to the
extent reasonably practicable, the Company will continue its existing practice of
attempting to contact the occupants of all private property in advance of entering
such property for the purpose of construction or initial installation of Company
Facilities within easements or rights-of-way traversing such property. If any
easements or rights-of-way traversing private land are disturbed by Company’s
activities, Company will substantially restore such easements and rights-of-way
consistent with good utility practice and as required by any terms of such
easements and rights-of-way. The Company may, but shall not be required, to
reasonably restore or replace landscaping, fencing or other improvements located
in such easements and rights-of-way except as otherwise provided by law or the
terms of its easements and rights-of-way.
§6.8 Relocation of Company Facilities at Public Projects.
A. Relocation Obligation. The Company shall, without cost to the City,
temporarily or permanently remove, relocate, change or alter the position of any
Company Facility in City Streets or in Other City Property whenever the City shall
determine that such removal, relocation, change or alteration is necessary for the
completion of any Public Project. For all such relocations, the Company and the
City agree to confer on the location and relocation of the Company Facilities in the
City Streets or Other City Property in order to achieve relocation in the manner
which is most efficient and cost-effective for City. Notwithstanding the foregoing,
once the Company has relocated any Company Facility at the City's direction, if
the City requests that the same Company Facility be relocated within two years,
the subsequent relocation shall not be at the Company's expense. Following
relocation from the public right-or-way or city streets, all property shall be
restored to its former condition or better by the Company at its expense.
Company will not be required to relocate its equipment or facilities from private
easements without full payment of the relocation costs to the Company.
City shall consider reasonable alternatives in designing its public works projects
and exercising its authority under this section so as not to arbitrarily cause
Company unreasonable additional expense. If alternative public right-of-way
space if available, City shall also provide a reasonable alternative location for
Company’s facilities. City shall give Company written notice of an order or
request to vacate a public right-of-way; provided, however, that its receipt of such
notice shall not deprive Company of its right to operate and maintain its existing
facilities in such public right-of way until it (a) if applicable, receives the
reasonable cost of relocating the same and (b) obtains a reasonable public right-
of-way, dedicated utility easement, or private easement alternative location for
such facilities.
B. Private Project. The Company shall not be responsible for the expenses
of any relocation required by Private Projects, and the Company has the right to
require the payment of estimated relocation expenses from the affected private
party before undertaking such relocation. To the extent the City orders or
requests Company to relocate its facilities or equipment for the benefit of a
commercial or Private Project at the request of a commercial or private
developer, another non-public entity, then Company shall receive payment for
the cost of such relocation as a precondition to relocating its facilities or
equipment.
C. Relocation Performance. The relocations set forth in Section 6.7.A of
this Franchise shall be completed within a reasonable time. Subject to delays
caused by Force Majeure or by City revisions to supporting documents, in
the case of relocations with an estimated cost of $250,000 or less, the Company
shall use commercially reasonable efforts to complete such relocations within
ninety (90) days , and in the case of relocations with an estimated cost of greater
than $250,000, the Company shall use commercially reasonable efforts to
complete such relocations within one hundred-twenty (120) days, from the later of
the date on which the Director requests, in writing, that the relocation
commence, or the date when the Company is provided the Supporting
Documentation, except as otherwise provided herein.
D. Process for Preplanned and Priority Relocations. At the request of the City
in connection with a particular major preplanned relocation, priority relocations
or relocations involving unusual circumstances the Company and the City may
agree in writing upon procedures to coordinate such relocations. Such
procedures, once agreed upon, shall not be modified by either party without the
written consent of the other party.
E. City Revision of Supporting Documentation. Any revision by the City of
Supporting Documentation provided to the Company that causes the Company
to substantially redesign and/or change its plans regarding facility relocation
shall be deemed good cause for a reasonable extension of time to complete the
relocation under the Franchise.
F. Completion. Each such relocation shall be complete only when the
Company actually relocates the Company Facilities, restores the relocation site in
accordance with Section 6.7A of this Franchise or as otherwise agreed with the
City, and removes from the site or properly abandons on-site all unused
facilities, equipment, material and other impediments.
G. Utility Easements For Which Relocation Obligation Does Not Apply. The
relocation obligation set forth in this Section shall only apply to Company
Facilities located in City Streets or in Other City Property. The obligation shall
not apply to Company Facilities located on property owned by the Company in
fee, or to Company Facilities located in privately-owned easements or in Public
Utility Easements. The provisions of this Section 6.7 shall also not apply to
Company Facilities located in Other City Property within any easements, rights-of-
way, licenses or similar rights held by Company and the Company’s rights and
obligations as to such Facilities shall be governed by the terms of the instruments
creating such rights.
H. Coordination. A representative of the Company shall, if notified in advance
and when possible, attend monthly rights of way coordination meetings of the City,
for any pending Public Project involving relocation of Company Facilities. Such
meetings shall be for the purpose of minimizing conflicts where possible and to
facilitate coordination with any timetable established by the City for any Public
Project.
I. Proposed Alternatives or Modifications. Upon receipt of written
notice of a required relocation, the Company may propose an alternative to or
modification of the Public Project requiring the relocation in an effort to mitigate or
avoid the impact of the required relocation of Company Facilities, particularly
transmission facilities (“mitigation proposal”). The City shall perform a
reconnaissance review of the mitigation proposal at no charge to the Company.
As a result of the reconnaissance review of the mitigation proposal, the City
shall, in good faith, estimate its cost to implement the mitigation proposal and
shall communicate that estimate in writing to the Company, so that the
Company can make an informed decision as to whether it will request that the
mitigation proposal be implemented. The acceptance of the proposed alternative
or modification shall be at the sole discretion of the City, provided, however, that
such acceptance shall not be unreasonably withheld. In the event the City
accepts the proposed alternative or modification, the Company agrees to
promptly compensate the City for all additional costs, expenses or delay that
the City reasonably determines will result from the implementation of the
proposed alternative.
§6.9 Service to New Areas. If the territorial boundaries of the City are expanded
during the term of this Franchise, the Company shall, to the extent permitted by
law, be authorized to extend service to Residents in the expanded area at the
earliest practicable time. Service to the expanded area shall be in accordance
with the terms of the Company's PUC tariffs and this Franchise, including the
payment of Franchise fees.
§6.10 City Not Required to Advance Funds. Upon receipt of the City's authorization for
billing and construction, the Company shall extend Company Facilities to
provide Utility Service to the City as a customer, without requiring the City to
advance funds prior to construction. The City shall pay for the extension of
Company Facilities once completed in accordance with the Company's
extension policy on file with the PUC.
§6.11 Technological Improvements. The Company will continue to evaluate
technological advances in the utility industry for cost-effective opportunities to
improve service and/or reduce costs consistent with the provision of safe and
reliable service to its customers and will use reasonable efforts to implement
technological advances identified by the Company which the Company believes
are consistent with its obligation to provide safe, reliable service at just and
reasonable rates. The Company reserves the right to seek authorization from
the Commission prior to implementing any technological advances.
§6.12 Movement of Buildings. Company shall, upon request by any person holding a
building moving permit, license or other approval issued by the City or State,
temporarily remove, raise or lower its wires to permit the moving of buildings. The
expense of such removal, raising or lowering shall be paid by the person
requesting same, and Company shall be authorized to require such payment in
advance. Company shall be given not less than thirty (30) business day’s oral or
written notice to arrange for such temporary wire changes. If the request to raise
or lower wires to permit the moving of buildings is made by the City for a
municipal purpose, the removal, raising or lowering shall be without cost to the
CityIf a line is de-energized or temporarily relocated at the request of a party
.
other than the City, the Company may seek reimbursement from the party
seeking the relocation.
ARTICLE 7
RELIABILITY
§7.1 Reliability. The Company shall operate and maintain Company Facilities
efficiently and economically and in accordance with the all applicable Federal
and State standards, including standards promulgated by the North American
Energy Reliability Corporation (“NERC”) and of the Commission and consistent
with the national utility standards for the provision of adequate, safe, and
reliable Utility Service.
§7.2 Reliability Reports. The Company shall provide the City with a copy of any and
all reports provided to any State or Federal agency regarding the reliability of
Company Facilities and Utility Service in Colorado contemporaneously with the
filing of any such report with the agency. Nothing herein shall require Company
to prepare reports not otherwise in existence or otherwise required by federal
or state laws.
ARTICLE 8
COMPANY PERFORMANCE OBLIGATIONS
§8.1 Service To City Facilities. The conditions under which the Company shall
install new or modified Utility Service to City Facilities shall be governed by this
Franchise, the Company's approved Commission tariffs and to the extent
applicable, the Street Lighting Service Agreement (“SLS Agreement”), effective
concurrently with this Franchise. In providing any such new or modified Utility
Service to City Facilities, the Company agrees to perform as follows:
A. Performance. The Company shall complete each such new or modified
Utility Service within a reasonable time, subject to delays due to (i) Force
Majeure or other cause that could not be reasonably anticipated by the Company,
(ii) City revision of Supporting Documentation that causes the Company to
substantially redesign and/or change its plans regarding such City Projects, (iii)
action or inaction of the City, (iv) for other good cause shown, or (v) as otherwise
agreed to by the parties.
B. Completion/Restoration. Each such new or modified Utility Service shall be
complete only when the Company actually provides the service installation or
modification, restores the project site in accordance with the terms of the
Franchise or as otherwise agreed with the City and removes from the site or
properly abandons on site any unused facilities, equipment, material and other
impediments.
§8.2 Adjustments to Company Facilities to Accommodate Street Maintenance,
Repair and Paving Operations. The Company shall perform adjustments to
Company Facilities, including manholes and other appurtenances in Streets
and Other City Property, to accommodate City street maintenance, repair and
paving operations (“City operations”) at no cost to the City. In providing such
adjustments to Company Facilities, the Company agrees to perform as follows:
A. Performance. The Company shall complete each requested adjustment
within a reasonable time, subject to delays due to (i) Force Majeure or other
cause that could not be reasonably anticipated by the Company, (ii) City revision
of Supporting Documentation that causes the Company to substantially redesign
and/or change its plans regarding such City Projects, (iii) action or inaction of the
City, (iv) for other good cause shown, or (v) as otherwise agreed to by the parties.
B. Completion/Restoration. Each such adjustment shall be complete only
when the Company actually adjusts the Company Facility to accommodate the
City Operations in accordance with City instructions and, if required, readjusts,
following City paving operations.
C. Coordination. As requested by the City or the Company, representatives
of the City and the Company shall meet regarding anticipated City Operations
which will require such adjustments to Company Facilities in streets or Other
City Property. Such meetings shall be for the purpose of coordinating and
facilitating performance under this Section.
§8.3 Third Party Damage Recovery.
A. Damage to Company Interests. If any third-party damages any Company
Facilities that the Company is responsible to repair or replace, to the extent
permitted by law, upon request for information by Company to City, the City will
provide to the Company within a reasonable time all pertinent information within
its possession regarding the incident and the damage, including the identity of
the responsible third-party.
B. Damage to City Interests. If any third-party damages any Company
Facilities for which the City is obligated to reimburse the Company for the cost
of the repair or replacement of the damaged facility, to the extent permitted by law
the Company will notify the City of any such incident and will provide to the City
within a reasonable time all pertinent information within its possession regarding
the incident and the damage, including the identity of the responsible third-party.
C. Meeting. The Company and the City agree to meet periodically, upon
written request of either party, for the purpose of developing, implementing,
reviewing, improving and/or modifying mutually beneficial procedures and
methods for the efficient gathering and transmittal of information useful in recovery
efforts against third parties for damaging Company Facilities.
ARTICLE 9
BILLING AND PAYMENT
§9.1 Billing for Utility Services.
A. Unless otherwise provided in its tariffs, the rules and regulations of the
Commission, or the laws of Colorado, the Company shall render bills monthly to
the offices of the City for Utility Service obtained by the City, and other related
services for which the Company is entitled to payment from City and for which
the City has authorized payment.
B. Billings for service rendered during the preceding month, except for
billings pursuant to the Agreement, shall be sent to the person(s) designated by
the City and payment for same shall be made as prescribed in the Agreement and
the applicable tariff on file and in effect from time to time with the Commission.
C. The Company shall provide all billings and any underlying support
documentation reasonably requested by the City. The billings and
documentation shall be provided in an editable and manipulatable electronic
format that is acceptable to the Company and the City, as soon as such
technology is available to the Company.
D. Upon request of the City, the Company will meet with the City for the
purpose of developing, implementing, reviewing, and for modifying mutually
beneficial and acceptable billing procedures, methods, and formats which may
include, without limitation, electronic billing and upgrades or beneficial
alternatives to the Company’s current most advanced billing technology, for the
efficient and cost effective rendering and processing of such billings submitted by
the Company to the City. No such discussions will require Company to
implement a billing system other than one used for all of its customers in
Colorado, except as a pilot program approved by the Commission.
§9.2 Payment to City. In the event the City reasonably determines that the Company
is liable to the City for payments, costs, expenses or damages of any nature,
the City shall send written notice to the Company advising the Company of
such determination and providing reasonable supporting documentation
regarding such determination. Upon receipt of such written notice, the
Company may request a meeting between the Company’s designee and a
designee of the City Manager to discuss such determination. The Company shall
notify the City within thirty (30) days after its receipt of such written notice if the
Company disputes all or any portion of the City’s determination of liability. The
Company shall pay the undisputed portion of such liability within thirty (30) days
of the date of receipt of the City’s written notice. The Company shall not be
required to pay the disputed portion of such liability until thirty (30) days after
final resolution of such dispute pursuant to the Company’s tariffs or by
settlement or litigation. If the Company fails to pay any such liability within the
time provided by this section 9.2, subject to Commission rules, the City may
deduct the unpaid amount from amounts owed by the City to Company for
Utility Services.
ARTICLE 10
USE OF COMPANY FACILITIES
§10.1 City Use of Company Facilities.
A. Emergency Use: In the event of an Emergency, the City shall be
permitted by Company to make use of Company Facilities in the City at no cost
to the City for the placement of City equipment or facilities necessary to serve a
legitimate police, fire, municipal, public safety or traffic control purpose, or for any
other emergency purpose consistent with the City’s police powers. Such use of
Company Facilities shall be of a limited duration and will only be allowed if the
use does not substantially interfere with the Company’s own use of Company
Facilities. To the extent practicable, given the nature and extent of any
emergency, the City will notify the Company in writing in advance of its intent to
use Company facilities and the nature of such use. The City shall be responsible
for costs associated with modifications to Company Facilities to accommodate the
City’s temporary use of such Company Facilities and for any electricity used. Any
such City use must comply with the National Electric Safety Code (2008)
(hereafter “NESC”);4 CCR 723-3-3200, and all other applicable laws, rules and
regulations.
B. Non-Emergency Use: The City shall be permitted to make reasonable
attachments of its communication systems to the Company’s electrical
distribution or transmission system, including underground facilities, at the City’s
expense, provided such use does not unreasonably interfere with the use of
such systems for electrical energy or create an unreasonable hazard. The City
shall complete the pole attachment process outlined by the Company. This
process requires that the City shall sign a Pole Attachment Agreement and
Permit that outlines the NESC requirements for making attachments to company-
owned facilities. In accordance with this Franchise, Company will not require a
rental fee or other charge for the City to reasonably attach communication
systems to the Company’s electric distribution system. The City shall
communicate its intent to attach communication systems by filling out and
submitting “Exhibit C”, Attachment Permit Form when City is requesting to make
any attachment to Company’s electric distribution system. Company may refuse
to attach City communication systems if the Company reasonably determines
that such use of Company’s facilities by City attachment would cause an unsafe
or unstable condition. Such use by City may include, by way of illustration but
not by way of limitation, the attachment of municipal or public safety
telecommunications network cables or facilities or intelligent traffic management
systems or the attachment of cables for transmitting television or radio signals.
The Company shall not be responsible for any modifications to Company’s
Facilities or for payment of any costs necessitated by such use by the City, but
shall not otherwise charge the City for such attachment. A copy of the
Company’s current Attachment Agreement is included as Exhibit D to this
franchise. Company reserves the right to refuse City attachments if the
Company reasonably determines that such attachment will interfere with
Company safety requirements or otherwise determines such attachment is not
reasonable or prudent. Nothing under this Section 10.1(B) shall confer any right
upon a third party to use Company Facilities.
§10.2 Third Party Use of Company Facilities. If requested in writing by the City, the
Company shall allow other companies who hold franchises, or otherwise have
obtained consent from the City to use the Streets, to utilize Company Facilities for
the placement of their facilities upon approval by the Company and agreement
upon reasonable terms and conditions including payment of fees established by
the Company. Company reserves the right to refuse to allow such attachments if
the Company reasonably determines that such attachments will interfere with
Company safety requirements or otherwise determines such attachments are not
reasonable or prudent. The Company’s consent to allow such use of Company
Facilities shall not be unreasonably withheld. No such use shall be permitted if it
would violate terms of the Telecommunications Act of 1996, (Pub. Law. No. 104-
104, 110 Stat. 56).
§10.3 City Use of Company Transmission Rights-of-Way. To the extent Company is
authorized to do so under the terms of its rights-of-way, the Company shall
permit the City use of rights-of-way which Company may now, or in the future,
own or have an interest in within the City for the purposes set forth in and
pursuant to the provisions of the Colorado Park and Open Space Act of 1984,
C.R.S. Section 29-7-.5-101, et seq., provided that the Company shall not be
required to make such an offer in any circumstances where such offer would
materially interfere with the Company’s use of rights-of-way. If the Company’s
offer of use is accepted by the City, then any improvements deemed appropriate
by the City and consistent with the purpose of the Park and Open Space Act of
1984 shall be made by the City at the City’s expense.
§10.4 Emergencies. Upon written request, the Company shall assist and fully
cooperate with the City in developing an emergency management plan. In the
case of any Emergency or disaster, the Company shall, upon verbal request of
the City, make available Company Facilities for emergency use during the
Emergency or the disaster period. Such use of Company Facilities shall be of a
limited duration and will only be allowed if the use does not interfere with the
Company’s own use of Company Facilities. In the case of any Emergency or
disaster, the City shall, upon verbal request of the Company, make available
City facilities for emergency use during the Emergency or the disaster period.
Such use of City facilities shall be of a limited duration and will only be allowed
if the use does not interfere with the City’s own use of City facilities. Nothing in
this section shall be construed to prevent or limit the City’s power of eminent
domain as provided by law.
ARTICLE 11
UNDERGROUNDING OF OVERHEAD FACILITIES
§11.1 Underground Policy. The official public policy of the City is that all new and
relocated utility lines be placed underground.
§11.2 Underground Electrical Lines. The Company shall, upon payment to the
Company of the charges provided in its tariffs or under any agreement entered
into between the Company and any third party, place all newly constructed
electrical distribution lines underground as required by and in accordance with
the Company’s tariffs and as required by subdivision or other regulations
adopted by the City or other proper authority as set forth in Chapter 4 of Title XII
and Chapters 2 and 4 of Title XVII of the Pueblo Municipal Code as it exists or
may be amended, replaced or renumbered, and City Ordinance No. 7560
relating to utilities, defining and regulating overhead electrical feeder lines, and
providing penalties for violation thereof. Newly constructed electric distribution
lines are lines that did not exist prior to their construction. Any existing overhead
line that requires an upgrade does not constitute a new line.
§11.3 Underground Conduit. In addition to the rights given the City under this Article,
whenever the Company installs new underground conduits or replaces existing
underground conduits, the Company shall provide reasonable advance notice to
the City, prior to placing newly constructed electrical distribution lines in newly
developed areas underground, so that the City may elect to request that the
Company install additional conduit for the City. If City wants additional conduit
installed, it will notify Company and provide conduit to the Company at the City’s
expense. The City will pay to the Company any additional or incremental cost
required to install the City’s conduit. City and Company shall cooperate to
minimize installation costs of underground conduit and minimize cutting the
streets.
§11.4 Undergrounding Conversion Fee.
A. Undergrounding Fee. In further consideration for this Franchise, in addition
to the Franchise Fee payable under this Franchise, the Company shall collect from
its customers during the term of the Franchise, a sum equal to one half of one
percent (0.5%) of the current charges appearing on each customer statement
(except that portion of current charges constituting pass through of the
Franchise Fee) (the “Undergrounding Fee”) for the purpose of undergrounding
existing overhead distribution facilities in streets and other public places within the
City and the associated service lines, as requested by the City in the exercise
of its police powers and in accordance with the provisions of this Franchise. To
the extent required or provided for by law, the Company shall collect the
Undergrounding Fee from a surcharge upon City residents, including
businesses, who are customers of the Company, in the manner provided by
Tariff Sheet No. 48 of the Company’s tariff or any similar future tariff provision.
The Undergrounding Fee shall not be imposed upon, charged to, added to or
collected from the City or City Enterprises.
B. Payment or Deposit of Undergrounding Fee. Undergrounding Fees
collected by the Company shall be paid to the City at the time and in the
manner that the Company pays Franchise Fees to the City. Alternatively, at the
request of the City, the Company agrees to deposit, on at least a monthly basis,
the Underground Fees collected by the Company into one or more segregated,
interest-bearing accounts, in the Company’s name but for the benefit of the City, at
institutions selected by the City and, upon such deposit, the Company shall not be
responsible for any losses that might be incurred as a result of the failure or
performance of such institutions.
C. Undergrounding Eligible Projects Any undergrounding of any distribution
line shall extend for a minimum distance of one City block or 750 feet,
whichever is less, or as may be mutually agreed to by the parties. The
determination of undergrounding projects that can be completed with the amount
of funds available from the Underground Fee shall be made by the City, after
consultation with the Company, and shall be dependent upon safety concerns
and protection of the operating integrity of the Company’s electric system,
which determination shall be made by the Company on a case-by-case basis in
accordance with prudent engineering and utility practices (“Eligible Projects”).
The Company shall be responsible for all of the work associated with any all
Eligible Project.
D. Advances of Undergrounding Fees. In the event the City proposes an
Eligible Project which has an estimated cost that exceeds the amount of
Undergrounding Fees then collected, upon request by the City, the Company
agrees to advance and expend the additional amounts required to complete such
Eligible Project; provided, however, that the Company shall not be required to
advance more than the amount anticipated to be available from collection of the
Undergrounding Fee for the two (2) year period following such request (or the
remaining term of this Franchise if less than 2 years). The Company shall be
entitled to recoup such advances from subsequent collection of Undergrounding
Fees and, without the Company’s consent, the City shall not propose another
Eligible Project until the Company has recouped such advances. No relocation
expenses which the Company would be required to expend pursuant to Article 6
(except for § 6.8 B thereof), Article 12, or Article 13 of this Franchise shall be
payable out of the Underground Fund. City may, at any time, by Ordinance
duly adopted by its City Council, temporarily suspend or terminate the collection
of Undergrounding Fees, and thereafter, it may likewise re-impose such Fees
by Ordinance; provided, however, that no suspension of the Undergrounding
Fees shall be effective unless and until the Company has recouped any
amounts advanced pursuant to this Section 11.4D.
E. System Wide Undergrounding. If, during the term of this Franchise, the
Company should receive authority from the Commission to undertake a system
wide program or programs of undergrounding its electricdistribution facilities, the
Company will budget and allocate to the program of undergrounding in the City
such amount as may be determined and approved by the Commission, but in no
case shall such amount be less than the Undergrounding Fee. Unless otherwise
required by the Commission, funds for the undergrounding program shall be in
addition to, and shall not in any way diminish the payment of the Franchise Fee
provided in Article 4 of this Agreement.
F. City Requirement to Underground. In addition to the provisions of this Article,
the City may require any above ground Company Facilities to be moved
underground at the City’s expense pursuant to the City’s police power.
§11.5 Undergrounding Performance. Promptly upon receipt of a request for an Eligible
Project and all Supporting Documentation from the City necessary to design such
Project, the Company shall prepare a detailed, good faith cost estimate of the
anticipated actual cost of the requested project for the City to review and, if
acceptable, issue a project authorization. At the City’s request, the Company will
provide all documentation which forms the basis of the estimate. The Company
will not proceed with any requested project until the City has provided a written
acceptance of the estimate. Upon receipt of a written acceptance of the estimate,
the Company shall, to the extent of monies collected from the Underground Fee
and advanced by the Company pursuant to Section 11.2B of this Franchise,
underground the facilities that are the subject of the request in accordance with
the procedures set forth in this Section. This section does not apply to
relocations under §6.7 of this Franchise Agreement.
A. Timing. The Company shall complete each Eligible Project within a
commercially reasonable time.
B. Performance Standards. Performance under this Article shall be subject
to the standards of Article 8 of this Agreement.
C. Report of Actual Costs. Upon completion of each undergrounding project,
the Company shall submit to the City a detailed report of the Company’s actual
cost to complete the project and the Company shall reconcile this total actual
cost with the accepted cost estimate. In the event the Underground Fee
collections have been paid to the City, upon completion of an Eligible Project,
the City shall promptly pay the Company for its actual costs. In the event the
Underground Fee collections have been deposited in one or more interest-
bearing accounts at the request of the City, upon completion of an Eligible
Project, upon twenty (20) days prior written notice to City, the Company may
reimburse itself for its actual costs.
D. Audit of Underground Projects. The City may require that the Company
undertake an independent audit of up to two (2) undergrounding projects in any
calendar year. The cost of any such independent audit shall be paid for out of the
Undergrounding Fee collections. The Company shall cooperate fully with any
audit and the independent auditor shall prepare and provide to the City and the
Company a final audit report showing the actual costs associated with completion
of the project. If a project audit is requested by the City, only those actual
project costs confirmed and verified by the independent auditor shall be
charged to the Fund.
§11.6 Audit of Underground Fund. Upon written request, every three (3) years
commencing at the end of the third year of this Franchise, either the Company or
the City may cause an independent auditor to investigate and determine the
correctness of the Undergrounding Fee collections and costs of Eligible Projects
paid for by such Underground Fee collections. Such audits shall be limited to the
previous three (3) calendar years. The auditor shall provide a written report
containing its findings to the City and the Company. The Company shall
reconcile the Fund consistent with the findings contained in the independent
auditor’s written report. If there are no adjustments required by the independent
auditor, the costs of the audit and investigation shall be paid by the
Undergrounding Fee collections. If adjustments are required, the Company shall
pay the costs of the audit and investigation and they shall not be paid out of the
Undergrounding Fee collections.
§11.7 Cooperation with Other Utilities. At the time any Company electrical line is
placed underground pursuant to this Article, the Company shall notify any City
Licensee having access to affected Company poles that such poles are to be
abandoned and vacated and the Company shall request that any such facilities
belonging to other Licensees be removed. When undertaking an
undergrounding project the City and the Company shall use reasonable efforts to
coordinate with other utilities or companies that have their facilities above ground
to attempt to have all facilities undergrounded as part of the same project. When
other utilities or companies are placing their facilities underground, to the extent
the Company has received prior notification, the Company may cooperate with
these utilities and companies and undertake to underground Company facilities
as part of the same project where financially, technically and operationally
feasible; provided, however, that such undergrounding will not represent an
increased expense to the Company and not create an unreasonable safety
hazard or otherwise interfere with the Company’s use of its underground
facilities. The Company shall not be required to pay for the cost of
undergrounding the facilities of other companies or the City in connection with
this Article.
§11.8 Planning and Coordination of Undergrounding Projects. The City and the
Company shall mutually plan in advance the scheduling of undergrounding
projects to be undertaken according to this Article. The City and the Company
agree to meet, as required, to review the progress of the current undergrounding
projects and to review planned future undergrounding projects. Such meetings
shall be to further cooperation between the City and the Company to achieve the
orderly undergrounding of Company Facilities. Representatives of both the City
and the Company shall meet periodically to review the Company’s
undergrounding of Company Facilities and at such meetings shall review:
A. Undergrounding, including conversions, Public Projects and replacements
which have been accomplished or are underway, together with the Company’s plans
for additional undergrounding; and
B. Public Projects anticipated by the City
ARTICLE 12
PURCHASE OR CONDEMNATION
§12.1 Municipal Right to Purchase or Condemn.
A. Right and Privilege of City. The right and privilege of the City to purchase
or condemn any Company Facilities located within the territorial boundaries of
the City, and the Company’s rights in connection therewith, as set forth in
applicable provisions of the constitution and statutes of the State of Colorado
relating to the acquisition of public utilities, and the City’s rights as set forth in its
Charter and ordinances, are expressly recognized. The City shall have the
right, within the time frames and using the procedures set forth in such provisions,
to purchase Company Facilities, land, rights-of-way and easements now owned or
to be owned by the Company located within the territorial boundaries of the City.
In the event of any such purchase, no value shall be ascribed or given to the
rights granted under this Franchise in the valuation of the property thus taken.
B. Value Upon Condemnation. Neither the Company nor the City agree at
this time upon any particular method for valuation of any interest in Company
Facilities or other property to be condemned, but each party reserves all rights
to advocate for such method of valuation as it may elect.
C. Notice of Intent to Purchase or Condemn. The City shall provide the
Company such notice of intent to purchase or condemn Company Facilities as
may be required by law. Nothing in this section shall be deemed or construed
to constitute consent by the Company to the City’s purchase or condemnation
of Company Facilities.
D. Limitations on Company Removal. If, at the time of termination of this
franchise, no renewal has been negotiated between the City and Company, the
Company shall have no right to remove facilities from streets, public ways and
dedicated easements Upon request by the City, made in writing, Company
facilities located in public streets, ways and dedicated easements which are not
purchased by the City at the termination of this franchise shall be removed by the
Company at Company expense and all public and private property shall be
restored by the Company at Company expense and all public and private
property shall be restored to its former condition. Company need not remove
property that it shall continue to own, use and maintain.
E. Right of First Refusal. If the Company, at any time during term of this
franchise, proposes to sell or dispose of any of its real estate or water facilities
lying within the City, the Company shall so notify the City. The property shall
be offered to the City for the price contained in a bona fide offer from a third
party which is acceptable to the Company. The terms thereof shall be included
in the Company's notice to the City. The City shall have thirty (30) days
thereafter to give written notice of its interest in, and non-binding preliminary
intent, to exercise a right of first refusal to purchase this property. The City
shall have an additional thirty (30) days after notice of receipt by the Company
of such notice of the City's preliminary non-binding intent to exercise its first
right of refusal in which to complete its firm obligation to exercise its right of first
refusal. The provisions shall not restrict the rights of the City to purchase or
condemn the Company's facilities reserved under Article 12 of this Ordinance.
ARTICLE 13
MUNICIPALLY-PRODUCED UTILITY SERVICE
§ 13.1 Municipally-Produced Utility Service.
A. City Reservation. The City expressly reserves (i) the right to engage in the
production of electric power, (ii) the right to exercise its Constitutional power to
create and operate a municipal electric utility under applicable law and to,
thereafter, exercise the rights of a municipal utility including, but not limited to,
the right to purchase wholesale power, and (iii) to otherwise exercise each and
every power held under its home rule charter.
B. Sale of Power. To the extent consistent with statutory requirements and
Commission rules and decisions including but not limited to, statutes and rules
concerning resource planning, renewable energy standards, and small power
producers and co-generators, and subject to the option of the Company to
require Commission pre-approval, the Company agrees to negotiate in good
faith contracts to purchase City-generated power, including Renewable Energy
Resources, that may be made available for sale to meet the Company’s future
resource needs and needs under the renewable energy standards.
C. Delivery Services. To the extent the Company is required by judicial,
statutory and/or regulatory directive to provide transmission and/or retail
wheeling services, the Company agrees to provide such services on the terms
and conditions contained in such directives. As of the effective date of this
Franchise, the parties acknowledge that there are currently no judicial, statutory
or regulatory directives requiring retail wheeling in Colorado.
D. Company’s Resource Planning. Currently, the Company is required to file
resource plans with the Commission at least every four years (with the next
scheduled resource plan to be filed in 2011) and renewable energy compliance
plans on an annual basis. In connection with the Company’s preparation of
these plans, upon request of the Company, the City may provide the Company
with information, on a timely basis, concerning the City’s expected future
resource needs so that the Company may appropriately plan to meet such
needs.
E. Franchise Not to Limit City’s Rights. Nothing in this Franchise prohibits the
City from becoming an aggregator of utility service or from selling utility service
to customers should it be permissible under law.
F. Exploration of Options to Reduce City Costs. The Company and the City
agree to cooperate in the evaluation of options to reduce the City’s costs for
electric service including, but not limited to, energy efficiency, peak shaving,
renewable energy options, and net metering. The parties will endeavor to timely
identify mutually agreeable options that may impact the Company’s 2011
resource plan, the Company’s 2012 renewable energy standards compliance
plan, and subsequent resource and renewable energy standards plans. The
Company reserves the right to require Commission approval in connection with
any mutually agreeable options involving the Company.
G. Net Metering. The Company shall provide net metering service to the City
in accordance with Rule 3664 of the Commission’s Rules, or any other
applicable, mandatory net metering statute, Commission rule or tariff. If the
Commission adopts any permissive net metering service rule or tariff, the
Company agrees to confer in good faith with the City to determine whether
there are net metering opportunities under the permissive rule or tariff which
can be implemented consistent with the Company’s obligations.
ARTICLE 14
ENVIRONMENT AND CONSERVATION
§14.1 Environmental Leadership. The City and the Company agree that low cost,
sustainable development, environmental excellence and innovation shall form
the foundation of the Utility Services provided by the Company under this
Franchise. The Company agrees to
A. Continue to cost-effectively monitor its operations to mitigate environmental
impacts; shall meet or exceed the requirements of environmental laws,
regulations and permits; invest in cost-effective environmentally-sound
technologies; consider environmental issues in its planning and decision-making;
and support environmental research and development projects and partnerships
in the City through corporate giving, employee involvement and projects
including but not limited to the Solar Technology Application Center;
B. Continue to work with the applicable governmental agencies to develop and
implement avian protection plans to reduce electrocution and collision risks by
eagles, raptors and other migratory birds with transmission and distribution
lines; and,
C. As requested by the City, to meet with the City at a mutually convenient time
and place for a discussion of the Company’s environmental efforts.
D. The City agrees to support and endorse the Company’s environmental
initiatives through advocacy with customers and regulators; provided however,
that the City retains the sole discretion as to whether it will endorse particular
initiatives in connection with any activities taken that may cause the City or its
residents to incur costs.
§14.2 Conservation. The City and the Company recognize and agree that energy
conservation programs offer opportunities for the efficient use of energy and
possible reduction of energy costs. The City and the Company further
recognize that creative and effective energy conservation solutions are
crucial to sustainable development. As such, the Company and the City
commit to work cooperatively and collaboratively to identify, develop,
implement and support programs offering creative and sustainable
opportunities to Company customers and Residents, including low-income
customers and Residents. The Company agrees to help the City
participation in Company programs and when opportunities exist to partner
with others, such as the State of Colorado, the Company will help the City
pursue those opportunities. In addition, and in order to assist the City and its
Residents’ participation in Renewable Energy Resource programs, the
Company shall:
(1) notify the City regarding all eligible Renewable
Energy Resource programs;
(2) provide the City with technical support regarding how the
City may participate in Renewable Energy Resource
programs; and
(3) advise Residents regarding eligible Renewable Energy
Resource programs.
Notwithstanding the foregoing, to the extent that any Company assistance is
needed to support Renewable Energy Resource Programs, the Company retains
the sole discretion as to whether to incur such costs. Nothing in this Section
shall obligate the Company or the City to any position taken in any demand-
side reduction (DSM) docket before the Commission.
§14.3 Continuing Commitment. It is the express intention of the City and the
Company that the collaborative effort provided for in this Article continue for the
entire term of this agreement. The City and the Company also recognize,
however, that the programs identified in this Article may be for a limited
duration and that the regulations and technologies associated with energy
conservation are subject to change. Given this variability, the Company agrees
to maintain its commitment to sustainable development and energy conservation
for the term of this Agreement by continuing to provide leadership, support and
assistance, in collaboration with the City, to identify, develop, implement and
maintain new and creative programs similar to the programs identified in this
agreement in order to help the City achieve its environmental goals.
§14.4 Commission Approval. Nothing in this Franchise shall be deemed to require the
Company to invest in technologies or to incur costs that its management has not
elected to pursue or for which the Company has a good faith belief the
Commission will not allow the Company to recover the investment through the
ratemaking process.
ARTICLE 15
TRANSFER OF FRANCHISE
§15.1 Consent of City Required for Transfer of Franchise. The Company shall not
transfer or assign any rights under this Franchise to any third party, unless the
City consents to and approves such transfer or assignment in writing. In order
to obtain such consent and approval, the Company shall provide to City a
request for consent and approval sufficient information showing that the
proposed assignee has the technical and financial ability to perform the
obligations of Company under this Agreement. Consent and approval may be
denied by the City if, based upon the information provided, it reasonably
determines that the assignee appears either unwilling or not technically or
financially qualified or able to perform the obligations of Company under this
Franchise Agreement, or for any other valid municipal or public policy reason..
§15.2 Condition Precedent. Consent of the City shall be, and hereby is made, an
express condition precedent to any application to be made to the Commission
for any transfer or assignment of this Franchise to any third-party by the
Company.
§15.3 Transfer Fee. In order that the City may share in the value this Franchise adds
to the Company’s operations, any transfer or assignment of rights granted under
this Franchise requiring City approval, as set forth herein, shall be subject to the
condition that the Company shall promptly pay to the City a transfer fee in an
amount equal to $200,000.00 plus the product of $200,000.00 times the
percentage change in the United States Bureau of Labor Statistics Consumer
Price Index for Denver-Boulder, all items, all urban consumers, or its successor
index, from the date of this Franchise until the date of the approval of the transfer
by the City. Except as otherwise required by law, such transfer fee shall not be
solely recovered from, imposed upon, charged to, added to or collected from
Residents of the City.
§15.4 Taxes. Any transfer of this Franchise or of Company assets located in the City
shall be subject to applicable taxes.
ARTICLE 16
CONTINUATION OF UTILITY SERVICE
§16.1 Continuation of Utility Service. In the event this Franchise is not renewed at the
expiration of its term or is terminated for any reason, and the City has not
provided for alternative utility service, the Company shall have no right to
discontinue service or to remove any Company Facilities and the City shall have
no right to require the removal of Company Facilities, except as provided in this
Franchise and under applicable law, unless otherwise ordered or permitted by the
Commission or a Court of competent jurisdiction, and Company shall continue to
provide Utility Service within the City until the Court or Commission determines
how the City will obtain its utility service. The Company further agrees that it will
not withhold any temporary Utility Services necessary to protect the public. The
City agrees that in the circumstances of this Article, the Company shall be entitled
to monetary compensation as provided in the Company’s tariffs on file with the
Public Utilities Commission and the Company shall be entitled to collect from
Residents and shall be obligated to pay the City, at the same times and in the
same manner as provided in the Franchise, an aggregate amount equal to the
amount which the Company would have paid as a Franchise fee as
consideration for use of the City’s Streets. Only upon receipt of written notice
from the City stating that the City has adequate alternative Utility Service for
Residents and upon order of the Commission shall the Company be allowed to
discontinue the provision of Utility Service to the City and its Residents.
ARTICLE 17
INDEMNIFICATION AND IMMUNITY
§17.1 City Held Harmless. The Company shall indemnify, defend and hold the City
harmless from and against all claims, demands, liens, judgments, and all liability
or damage of whatsoever kind on account of or arising from the grant of this
Franchise or the exercise by the Company of the related rights of the Company
within the City, and shall pay the costs of defense plus reasonable attorneys’ fees.
The City shall (a) give prompt written notice to the Company of any claim,
demand or lien with respect to which the City seeks indemnification hereunder
and (b) unless in the City’s judgment a conflict of interest may exist between the
City and the Company with respect to such claim, demand or lien, shall permit the
Company to assume the defense of such claim, demand, or lien with counsel
satisfactory to the City. If such defense is assumed by the Company, the City
shall not be subject to any liability for any settlement made without its consent. If
such defense is not assumed by the Company or if the City determines that a
conflict of interest exists, the parties reserve all rights to seek all remedies
available in this Franchise against each other. Notwithstanding any provision
hereof to the contrary, the Company shall not be obligated to indemnify, defend or
hold the City harmless to the extent any claim, demand or lien arises from any
negligent or intentional act or failure to act of the City or any of its officers or
employees.
§17.2 Indemnification by Company. The Company shall construct, maintain and
operate its plant, equipment, structures and other facilities in a manner which
provides protection against injury or damage to persons or property. Company
shall save the City harmless and indemnify and defend the City from and against
all claims, demands, liability, judgments and loss whatsoever in nature, and
reimburse the City, for all its reasonable expenses, including attorney and expert
witness fees, arising out of or resulting directly or indirectly from the construction,
maintenance and operations of the Company within the City and the securing of
and the exercise by Company of the Franchise rights granted herein, including
any third-party claims, administrative hearings and litigation. None of the City
expenses reimbursed by the Company under the Article shall be surcharged to
the City or its residents.
§17.3 Immunity. Nothing in this Section or any other provision of this agreement shall
be construed as a waiver of the notice requirements, defenses, immunities and
limitations the City may have under the Colorado Governmental Immunity Act,
§24-10-101, C.R.S., et.seq. or of any other defenses, immunities, or limitations of liability
available to the City by law.
ARTICLE 18
BREACH
§18.1 Non-Contestability. The City and the Company agree to take all reasonable and
necessary actions to assure that the terms of this Franchise are performed and
neither will take any legal action to secure modification of this Franchise.
However, the Company reserves the right to seek a change in its rates, charges,
terms, and conditions imposed upon customers of providing Utility Service to the
City and its Residents, and the City retains all rights to intervene and participate
in any such proceedings, and in all proceedings as its interests may appear.
§18.2 Breach.
A. Notice/Cure/Remedies. Except as otherwise provided in this Franchise, if
a party (the “breaching party”) to this Franchise fails or refuses to perform any of
the terms or conditions of this Franchise (a “breach”), the other party (the “non-
breaching party”) may provide written notice to the breaching party of such breach.
Upon receipt of such notice, the breaching party shall be given a reasonable
time, not to exceed (60) days, subject to Force Majeure, in which to remedy the
breach. If the breaching party does not remedy the breach within the time allowed
in the notice, the non-breaching party may exercise the following remedies for
such breach:
(1) specific performance of the applicable term or condition; and
(2) recovery of actual damages from the date of such breach incurred by
the non-breaching party in connection with the breach, but
excluding any consequential damages.
If a breach is of such a type or nature that it cannot reasonably be remedied in
sixty (60) days, the breaching party shall immediately inform and demonstrate
to the non-breaching party of the fact that the breach cannot reasonably be
remedied in sixty (60) days. The breaching party shall immediately begin work
to cure the breach and shall diligently and expeditiously prosecute to
completion all work necessary to remedy the breach.
B. Termination of Franchise by City. In addition to the foregoing remedies, if
the Company fails or refuses to perform any material term or condition of this
Franchise (a “material breach”), the City may provide written notice to the
Company of such material breach. Upon receipt of such notice, the Company shall
be given a reasonable time, not to exceed ninety (90) days, subject to Force
Majeure, in which to remedy the material breach. If a breach is of such a type or
nature that it cannot reasonably be remedied in ninety (90), the Company shall
immediately inform and demonstrate to the City of the fact that the breach
cannot reasonably be remedied in ninety (90) days. The Company shall
immediately begin work to cure the breach and shall diligently and expeditiously
prosecute to completion all work necessary to remedy the breach. If the
Company does not remedy the material breach within the time provided in this
subparagraph B, the City may, at its sole option, terminate this Franchise. This
remedy shall be in addition to the City’s right to exercise any of the remedies
provided for elsewhere in this Franchise. Upon such termination, the Company
shall continue to provide Utility Service to the City and its Residents until the
City makes alternative arrangements for such service and until otherwise
ordered by the PUC, and the Company shall be entitled to collect from Residents
and shall be obligated to pay the City, at the same times and in the same
manner as provided in the Franchise, an aggregate amount equal to the amount
which the Company would have paid as a Franchise fee as consideration for
use of the City Streets.
C. Company Shall Not Terminate Franchise. In no event does the Company
have the right to terminate this Franchise.
D. No Limitation. Except as provided herein, nothing in this Franchise shall limit
or restrict any legal rights or remedies that either party may possess arising from
any alleged breach of this Franchise.
E. Costs and Attorneys Fees. If the City initiates any legal action seeking
damages for any alleged violation of this Franchise, or to seek enforcement of
any of the provisions hereof, then the prevailing party in any such action shall
recover from the other party all of its reasonable costs and attorneys fees incurred
in connection with the matter, regardless of whether such costs and/or fees were
incurred prior to, during or subsequent to the legal action filed by the City.
ARTICLE 19
AMENDMENTS
§19.1 Proposed Amendments. At any time during this Franchise the City, through its
City 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. Thereafter, both parties, through their designate
representatives shall, within a reasonable time, negotiate in good faith in an
effort to agree upon mutually satisfactory amendment(s). Proposed
amendments to this Franchise shall only become effective in accordance with
the provisions of Section 19.2.
§19.2 Effective Amendments. No alterations, amendments or modifications to this
Franchise shall be valid unless executed by an instrument in writing by the
parties, adopted with the same formality used in adopting this Franchise, to the
extent required by law. Neither this Franchise, nor any term hereof, may be
changed, modified or abandoned, in whole or in part, except by a written instrument
mutually agreed upon, and no subsequent oral agreement shall have any
validity whatsoever.
ARTICLE 20
EQUAL EMPLOYMENT OPPORTUNITY
§20.1 Equal Opportunity Employer. The Company shall be an equal opportunity
employer and will comply with applicable laws. As an equal opportunity
employer, the Company will not discriminate in its employment decisions on the
basis of race, color, national origin, sex, religion, age, disability, veteran status
or any other characteristic protected by applicable federal, state, or local law.
Furthermore, the Company will make reasonable accommodations for qualified
individuals with known disabilities unless doing so would result in an undue
hardship, safety, and/or health risk. The Company will maintain a
nondiscriminatory environment free from prejudice, intimidation or harassment
based on any of the above-mentioned grounds. To provide equal employment
and advancement opportunities to every applicant and employee, the Company
will base its employment decisions on merit, qualifications, experience and
abilities.
§20.2 Equal Employment Opportunity and Affirmative Action Policies. The Company
is an indirect subsidiary of Black Hills Corporation (“BHC”) and is subject to the
Equal Employment Opportunity and Affirmative Action policies of BHC. BHC
has adopted and published its policy on equal employment opportunity which
applies to all terms, conditions, and privileges of employment, including
recruiting, hiring, training and development, promotion, transfer, compensation,
benefits, educational assistance, termination, layoff, social and recreational
programs and retirement. The Company is committed to making employment
decisions based on valid requirements, without regard to race, color, national
origin, sex, religion, age, disability, veteran status or any other characteristic
protected by applicable law. Black Hills has also adopted an Affirmative Action
Plan. Copies of the Affirmative Action Plan are available in the BHC Human
Resources Department. BHC’s Equal Employment Opportunity and Affirmative
Action Policies are also available on the Company’s intranet and in the
Company’s Policy Manual and employee handbooks. BHC has an EEO
Coordinator who is responsible for compliance with all equal employment
opportunity laws and for implementing the BHC Affirmative Action Plans. All
personnel with responsibility for employment and personnel decisions are
directed to perform their duties in accordance with BHC’s commitment to Equal
Employment Opportunity and Affirmative Action. Managers and supervisors
must communicate the policy and plan to all employees. The Chairman,
President and Chief Executive Officer of BHC, has advised all employees in a
memorandum that BHC will review, audit and analyze its personnel actions
rigorously to ensure compliance with these policies. Employees who believe
they are not being treated according to these policies have been advised to
contact the EEO Coordinator, their supervisor, or the BHC ethics Helpline.
ARTICLE 21
MISCELLANEOUS
§21.1 No Waiver. Neither the City nor the Company shall be excused from complying
with any of the terms and conditions of this Franchise by any failure of the other, or
any of its officers, employees, or agents, upon any one or more occasions, to insist
upon or to seek compliance with any such terms and conditions.
§21.2 Successors and Assigns. The rights, privileges, and obligations, in whole or in
part, granted and contained in this Franchise shall inure to the benefit of and be
binding upon the Company, its successors and assigns, to the extent that such
successors or assigns have succeeded to or been assigned the rights of the
Company pursuant to Article 15 of this Franchise.
§21.3 Third Parties. Nothing contained in this Franchise shall be construed to provide
rights to any third parties.
§21.4 Notice. Both parties shall designate from time to time in writing representatives
for the Company and the City who 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, delivered in person or by
certified mail. Until any such change shall hereafter be made, notices shall be
sent as follows:
To the City:
City Manager
One City Hall Place
Pueblo, Colorado 81003
and to:
City Attorney
503 N. Main Street, Suite 203
Pueblo, Colorado 81003
To the Company:
Black Hills/ Colorado Electric Utility Company, LP
1515 Wynkoop Street, Suite 500
Denver, Colorado 80202
and to:
General Counsel
Black Hills Corporation
625 Ninth Street
Rapid City, South Dakota 57709
§21.5 Examination of Records.
A. The parties agree that a duly authorized representative of the City shall
have the right to examine any books, documents, papers, and records of the
Company reasonably related to the Company's compliance with the terms and
conditions of this Franchise. Information shall be provided promptly and in any
event within thirty (30) days of any written request. Any books, documents,
papers, and records of the Company in any form that are requested by the City,
that contain confidential information shall have the confidential information therein
contained conspicuously identified as "confidential" or "proprietary" by the
Company. Confidential information shall be provided to City, except that in no
case shall any privileged communication be subject to examination by the City
pursuant to the terms of this section. "Privileged communication" means any
communication that would not be discoverable due to the attorney client
privilege or any other privilege that is recognized in Colorado, including but not
limited to the work product privilege. The work product privilege shall include
information developed by the Company in preparation for Commission
proceedings. Information which is developed by the Company in preparation
for Commission proceedings shall be provided to the City upon the City being
granted intervenor status in such proceedings and filing with the Commission of
appropriate non-disclosure agreements in conformity with the applicable rules
of the Commission and decisions in such proceedings.
B. With respect to any information requested by the City which the Company
identifies as "Confidential" or "Proprietary":
(1) The City will maintain the confidentiality of the information by
keeping it under seal and segregated from information and documents that are
available to the public;
(2) The information shall be used solely for the purpose of
determining the Company's compliance with the terms and conditions of this
Franchise. The information shall only be made available to City employees and
consultants who represent in writing that they agree to be bound by the provisions
of this subsection B;
(3) The information may be held by the City for such time as is
reasonably necessary for the City to address the Franchise issue(s) that
generated the request, and, if requested by Company, shall be returned to the
Company or destroyed when the City has concluded its use of the information.
The parties agree that in most cases, the information should be returned within
one hundred twenty (120) days. However, in the event that the information is
needed in connection with any action that requires more time, including, but not
necessarily limited to litigation, administrative proceedings and/or other disputes,
the City may maintain the information until such issues are fully and finally
concluded.
C. If an Open Records Act request is made by any third party for confidential
or proprietary information that the Company has provided to the City pursuant to
this Franchise, the City will promptly notify the Company of the request and shall
allow the Company to defend such request at its sole expense, including filing a
legal action in any court of competent jurisdiction to prevent disclosure of such
information. In any such legal action the Company shall join the person requesting
the information and the City. In no circumstance shall the City provide to any third
party confidential information provided by the Company pursuant to this Franchise
without first conferring with the Company or as otherwise permitted by a Court of
Competent Jurisdiction. The Company shall defend, indemnify and hold the City
harmless from any claim, judgment, costs or attorney fees incurred in
participating in such proceeding.
D. Unless otherwise agreed between the Parties, the following information shall
not be provided by the Company: confidential employment matters, specific
information regarding any of the Company's customers, information related to the
compromise and settlement of disputed claims including but not limited to
Commission dockets, information provided to the Company which is declared by
the provider to be confidential, and which would be considered confidential to the
provider under applicable law.
E. The Company shall provide the City, upon request not more than every
two (2) years, a list of utility related property owned or leased by the Company
within the City. All such records must be kept for a minimum of four (4) years.
F. Communications with Regulatory Agencies. Upon request of the City, a
copy of all petitions, applications, communications, filings and reports submitted
by Company to FERC, the Commission or any other Federal or State regulatory
commission or agency having jurisdiction in respect to any matters which may
specifically impact the City's rights or obligations with regard to this Franchise,
shall be served upon the City as required by law or applicable rule. Whether or
not required by law or applicable rule to be served upon the City, copies of any
petitions or applications by the Company opening any docket at the Commission
shall be contemporaneously provided to the City.
G. Information. Upon written request, the Company shall provide the City
Manager or the City Manager' designee with access to the following:
(1) a copy of the Company's or its parent company's consolidated
annual financial report, or alternatively, a URL link to a location where the same
information is available on the Company's web site;
(2) maps or schematics in electronic format indicating the location of
specific Company Facilities, including electric lines, located within the City, to the
extent those maps or schematics are in existence at the time of the request and
related to an ongoing project within the City.
(3) The Company shall supply to the City, and maintain in an up-to-
date condition, in a format compatible with the City’s geographic information
systems database, as presently existing or as revised by the City, a set of maps
showing the following:
a. emergency routes;
b. locations where hazardous materials may exist, including but
not limited to, transformers, substations and power plants;
c. any other information as my reasonably be requested by City
police, fire or emergency preparedness services.
The Company shall provide the maps set forth in this section to the City at no
charge to the City.
(4) a copy of any report required to be prepared for a federal or state
agency detailing the Company's efforts to comply with federal and state air and
water pollution laws.
21.6 Payment of Taxes And Fees.
A. The Company shall pay and discharge as they become due, promptly and
before delinquency, all taxes, assessments, rates, charges, license fees,
municipal liens, levies, excises, or imposts, whether general or special, or
ordinary or extra-ordinary, of every name, nature, and kind whatsoever,
including all governmental charges of whatsoever name, nature, or kind, which
may be levied, assessed, charged, or imposed, or which may become a lien or
charge against this agreement ("Impositions"), provided that Company shall have
the right to contest any such Impositions and shall not be in breach of this
section so long as it is actively contesting such Impositions.
B. The City shall not be liable for the payment of taxes, late charges, interest
or penalties of any nature other than pursuant to applicable tariffs on file and in
effect from time to time with the PUC.
§21.7 Conflict of Interest. The parties agree that no official, officer or employee of
the City shall have any personal or beneficial interest whatsoever in the
services or property described herein and the Company further agrees not to
hire or contract for services any official, officer or employee of the City to the
extent prohibited by law, including ordinances and regulations of the City.
§21.8 Certificate of Public Convenience and Necessity. Upon execution of this
Franchise by both parties, the City agrees to support any application the
Company may file with the Commission to obtain a certificate of public
convenience and necessity to exercise the rights and obligations granted under
this Franchise.
§21.9 Authority. Each party represents and warrants that except as set forth below, it
has taken all actions that are necessary or that are required by its ordinances,
regulations, procedures, bylaws, or applicable law, to legally authorize the
undersigned signatories to execute this agreement on behalf of the parties and
to bind the parties to its terms. The persons executing this agreement on
behalf of each of the parties warrant that they have full authorization to execute
this agreement. The City acknowledges that notwithstanding the foregoing, the
Company requires a certificate of public convenience and necessity from the
Commission to operate under the terms of this Franchise.
§21.10 Severability. Should any one or more provisions of this Franchise be determined
to be unconstitutional, illegal, unenforceable or otherwise void, all other
provisions nevertheless shall remain effective. In the event a provision is
determined to be unconstitutional, illegal, unenforceable or otherwise void, all
other terms, covenants and conditions of this Franchise and their application
not adversely affected thereby shall remain in force and effect; provided,
however, that the Parties shall negotiate in good faith to attempt to implement a
replacement provision or an equitable adjustment in the provisions of this
Franchise with a view toward effecting the purposes of the provision by
replacing the provision that is held invalid, illegal, or unenforceable with a valid
provision the economic effect of which comes as close as possible to that of the
provision that has been found to be invalid, illegal or unenforceable
§21.11 Force Majeure. Neither the City nor the Company shall be in breach of this
Franchise if a failure to perform any of the duties under this Franchise is due to
Force Majeure, as defined in Section 1.10.
§21.12 Earlier Franchises Superseded. This Franchise shall constitute the only
franchise between the City and the Company for the furnishing of Utility Service,
Street Lighting Service, and it supersedes and cancels all former franchises
between the parties hereto.
§21.13 Titles Not Controlling. Titles of the paragraphs herein are for reference only, and
shall not be used to construe the language of this Franchise.
§21.14 Applicable Law. Colorado law shall apply to the construction and enforcement of
this Franchise. The parties agree that exclusive venue for any litigation arising
out of this franchise shall be in the District Court in and for Pueblo County,
State of Colorado.
§21.15 Payment of Expenses Incurred by City in Relation to Franchise Agreement.
The Company shall pay for expenses incurred by City in negotiating and
concluding this Franchise and for the Franchise election, including the
publication of notices, publication of ordinances, and photocopying of
documents.
§21.16 Contract Obligation. This Franchise constitutes a valid and binding contract
between Company and the City. In the event that the Franchise fee, or any
financial obligation of Company to the City specified in this Franchise is declared
illegal, unconstitutional or void for any reason by decision of any court or other
proper authority, fees previously paid under the terms of this Franchise shall be
deemed paid pursuant to contract between the City and Company and Company
shall not attempt to recoup any Franchise fee previously paid pursuant to the
terms of this Franchise.
§21.17 Bargained For Exchange. All provisions in this Franchise are part of a bargained-
for exchange. The parties agree that no use of any course of negotiations, or the
inclusion or exclusion of any term or provision in drafts shall be admissible to
demonstrate, as an evidentiary matter in any proceeding, that either party has
taken, acceded to or foregone any position.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
CITY OF PUEBLO
ATTEST: '
City Jerk 'resident of City Council
APPROVED AS TO FORM:
City Attorne
BLACK HILLS /COLORADO ELECTRIC
UTILITY COMPANY L.P. d/b /a BLACK HILLS
ENERGY
By
Name: - u4 ( sit
SEAL Title: - • _A s r ��
[Note — City Officials not to sign until and unless approved by the registered electors, and Company files its
acceptance and ratification]
41
EXHIBIT "A"
ACCEPTANCE BY BLACK HILLS / COLORADO ELECTRIC UTILITY COMPANY, L.P.
OF AN ELECTRIC FRANCHISE GRANTED BY ORDINANCE NO. 8186
TO BE SUBMITTED TO A VOTE OF THE ELECTORS OF THE CITY OF PUEBLO,
COLORADO
WHEREAS, Black Hills / Colorado Electric Utility Company, L.P. ( "Company ") has
negotiated the terms and conditions of a new electric franchise between said Company and the
City of Pueblo, a Municipal Corporation which franchise is as set forth in Ordinance No. 8186
entitled:
AN ORDINANCE GRANTING A NON - EXCLUSIVE FRANCHISE TO
BLACK HILLS / COLORADO ELECTRIC UTILITY COMPANY, L.P. TO
FURNISH AND SELL ELECTRICITY TO THE CITY AND TO ALL
RESIDENTS WITHIN THE CITY, AND THE NON - EXCLUSIVE RIGHT TO
ACQUIRE, PURCHASE, CONSTRUCT, INSTALL, MAINTAIN, OPERATE
AND EXTEND INTO, WITHIN AND THROUGH SAID CITY ALL
FACILITIES REASONABLY NECESSARY FOR THE GENERATION,
PRODUCTION, SALE, PURCHASE, EXCHANGE, TRANSMISSION AND
DISTRIBUTION OF ELECTRIC UTILITY SERVICE WITHIN AND
THROUGH THE CITY, TOGETHER WITH THE RIGHT TO MAKE
REASONABLE USE OF THE STREETS AND PUBLIC UTILITY
EASEMENTS OF THE CITY AS HEREIN DEFINED AS MAY BE
NECESSARY, AND FIXING THE TERMS, CONDITIONS, AND
REQUIREMENTS APPLICABLE TO ALL OF THE FOREGOING.
NOW, THEREFORE, in consideration of the premises and in pursuance of the provisions
of said Ordinance No. 8186 of Pueblo, Company does hereby accept the franchise and all of its
terms and conditions contained in said Ordinance No. 8186.
IN WITNESS WHEREOF, Company has caused its corporate name to be hereunto
subscribed by its J Q - c.--r: L kAi- 1; , and its Corporate Seal to be hereunto affixed,
attested by its �o r orc -E. S Ec.rL4- ovs i , as of this 2 day of August, 2010.
BLACK HILLS / COLORA 0 ELECTRIC UTILITY COMPANY
By `�i /7
A •
' 1
!! j',ltli �! ► Name: S L ar-F L v
Name: (Z■ya■ R. Title: \t Ekr ie u'k /i 14'e
Title: Corkor - SE��Eygrl
EXHIBIT "B"
RATIFICATION BY BLACK HILLS / COLORADO ELECTRIC UTILITY COMPANY, L.P.
OF FRANCHISE GRANTED BY THE CITY OF PUEBLO, COLORADO
BY ORDINANCE NO. 8186 APPROVED BY THE
ELECTORS OF THE CITY OF PUEBLO
WHEREAS, a special municipal franchise election was held on Tuesday, August 10,
2010, and at said election the majority of the registered electors of the City of Pueblo voting
thereon approved the franchise as set forth in Ordinance No. 8186, entitled:
AN ORDINANCE GRANTING A NON - EXCLUSIVE FRANCHISE TO
BLACK HILLS / COLORADO ELECTRIC UTILITY COMPANY, L.P. TO
FURNISH AND SELL ELECTRICITY TO THE CITY AND TO ALL
RESIDENTS WITHIN THE CITY, AND THE NON - EXCLUSIVE RIGHT TO
ACQUIRE, PURCHASE, CONSTRUCT, INSTALL, MAINTAIN, OPERATE
AND EXTEND INTO, WITHIN AND THROUGH SAID CITY ALL
FACILITIES REASONABLY NECESSARY FOR THE GENERATION,
PRODUCTION, SALE, PURCHASE, EXCHANGE, TRANSMISSION AND
DISTRIBUTION OF ELECTRIC UTILITY SERVICE WITHIN AND
THROUGH THE CITY, TOGETHER WITH TI -IE RIGHT TO MAKE
REASONABLE USE OF THE STREETS AND PUBLIC UTILITY
EASEMENTS OF THE CITY AS HEREIN DEFINED AS MAY BE
NECESSARY, AND FIXING THE TERMS, CONDITIONS, AND
REQUIREMENTS APPLICABLE TO ALL OF THE FOREGOING.
WHEREAS, Ordinance No. 8186 provides that Black Hills / Colorado Electric Utility
Company ( "Company ") shall file with the City Clerk its written ratification of the franchise
granted by Ordinance No. 8186 within ten (10) days after the special municipal election;
NOW, THEREFORE, Company hereby ratifies the franchise and all of its terms and
conditions contained in said Ordinance No. 8186 and agrees to be bound thereby.
IN WITNESS WHEREOF, Company has caused its corporate name to be hereunto
subscribed by its Vice President — Electric Utilities, and its Corporate Seal to be hereunto
affixed, attested by its Vice President — Governance and Corporate Secretary, as of this l 1 th day
of August, 2010.
BLACK HILLS / OLORADO ELECTRIC UTILITY COMPANY
By : , _ 4
Name: 'uart A. Wevik
/ _ I Title: Vice President — Electric Utilities
Name: Roxann R. Basham
Tiile: Viee Prre ident Gov and Corporate
":� eeretary
20189I0 --
(Exhibit C)
Black Hills /Colorado Electric Utility Company, LP
d/b /a
Black Hills Energy
PERMIT TO ATTACH LICENSEE'S FACILITIES
;^ 'yes"�,s�`'"t.`""��`".'�" + 'S k'`'''it x` �'�' �v xf {" � "�,.""...` ,—� �^ ,, � sw -,vr• - � — 'F7 �. ws +'^ a an �3.
& ; q iy x , r APPLICATION v . '
11P: :F ` "��+*'4 Y =m" rT LF . � �L ir -+# 1t ` 41 d^ ..i+ e, "FJ
� ` S� t e '�t �'t� tu '� s�K.r' S. ;� vim• °,r "'��r�e� •
7 '.`�;.. =:w ' .r�
In accordance with the terms of our Agreement dated , 20_, application is hereby made for permission to make attachment of
LICENSEE's Facilities to the COMPANY Facilities in and in the vicinity of , Colorado, at the locations shown on the
sketch attached.
Description (type, quantity, etc.) of facilities: Attach to pole (s), remove _ pole(s), abandon pole(s)
Dated: 20
LICENSEE
By
Title
pf, , «;�^* r rr , �` ,.,, i c -
,y • G 5 w ; . z tv yrw B t, 3 z s
� � � � � �CONDITIONS
LI Engineering Review cost is $
0 No Make Ready
El Make Ready required. The total estimated cost of doing such work is $ . After COMPANY receives payment of said amount
and acceptance of the conditions herein, COMPANY shall proceed to make such changes in its facilities. After completion of this work, payment shall be
adjusted in the following manner: If the actual cost of doing the work exceeds said estimated cost by an amount greater than 5 %, then LICENSEE shall
make a further payment to COMPANY to cover the excess amount; however, if the actual cost of doing the work is lower than said estimated cost by an
amount greater than 5 %, then COMPANY shall refund an amount equal to such difference.
If the above meets with your approval, please indicate your acceptance in the space provided below and return with your payment.
ACCEPTED: Black Hills/Colorado Electric Utility Company, LP
d/b /a
Black Hills Energy
By
Licensee Title
By Date 20
Title Work Order No.
Date 20 Job Order
No.
District File
No.
Pl�.itl�il s.. r , s ` � Tag
&' 'zx{E tu� i ° ;� dr *t` #" �` a' R
,;.�"'� �. ..w4f ... r..:..r...a'>�. ... .,....�..:'.. .. ,,a h�.,b ...."s,..,....x.'.�5.:6
Permission is granted Licensee to make attachments to the poles at the locations set forth in the above application.
Permit No. Black Hills/Colorado Electric Utility Company, LP
d/b /a
Black Hills Energy
INVENTORY OF POLES USED BY LICENSEE
Previous Added by New By
Balance This Permit Balance
Title
Added by Date Attachments
This Permit Made
(Exhibit 9)
•
BLACK HILLS /COLORADO ELECTRIC UTILITY COMPANY, L.P.
d/b /a Black Hills Energy
Attachment of Communication Facilities to Distribution Poles Agreement
THIS AGREEMENT is made and entered into this day of , 2010, by and between
BLACK HILLS /COLORADO ELECTRIC UTILITY COMPANY, L.P. d/b /a Black Hills Energy, (hereinafter
referred to as "Company "), and City of Pueblo, Colorado, (hereinafter referred to as "City" or "Licensee ").
WITNESSETH:
WHEREAS, Company owns electrical distribution poles within the corporate limits of City (the "Company
Facilities ");
WHEREAS, Licensee desires access to the Company Facilities to attach, install, operate and/or maintain
, other necessary facilities (the "Licensee's Facilities ") used to provide various
services ( "Services "), as permitted by law, to its citizens and City government authorities and agencies; and
WHEREAS, subject to the terms and conditions set forth herein and as otherwise permitted by the franchise
between Company and City, Company agrees to permit the attachment and operation of Licensee's Facilities on the
Company Facilities.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. Scope of Permission. Company hereby grants permission to Licensee to attach and operate Licensee's
Facilities on the Company Facilities to provide the Services. Pursuant to this Agreement, Licensee may also provide
telecommunications service (as such term is defined under the Communications Act of 1934) provided Licensee
notifies Company of its intent to do so in writing in advance thereof and agrees to pay the additional rates set forth
in paragraph 4 hereto. Licensee warrants that it is not now utilizing attachments on Company's poles for the purpose
of providing telecommunications service, or if it is utilizing such attachments for such purpose, it has notified
Company prior to execution of this Agreement.
2. Utility Obligations of Company; Reservation of Space.
(a) Utility Obligations. Company has been granted the rights to construct operate and maintain the
Company Facilities under its electricity utility franchises. Licensee agrees that this Agreement and the rights granted
herein are subject to the needs and requirements of Company in operating its electric utility business including,
without limitation, the installation, operation, repair and replacement of any and all of the Company Facilities in a
manner that will enable Company to fulfill its electric utility obligations. Nothing in this Agreement shall in any way
restrict, modify or alter Company's absolute right to use, in its sole discretion, the Company Facilities in the conduct
of its electric utility business.
(b) Reservation of Space. In furtherance of Company's obligations set forth in paragraph 2(a), Company
may reserve space and loading capacity on the Company Facilities for future use as set out in Company's bona fide
development plan contained in Company's Electric Distribution Construction Standards, which may be amended
from time to time by Company.
3. Attachment of Licensee's Facilities.
(a) Right to Attach. Licensee's right to attach to the Company Facilities shall be nonexclusive and
nondiscriminatory. Company reserves the right to grant to competitors of Licensee and other persons permission to
use the Company Facilities. Applications for attachments will be reviewed and approved on a first come, first
served, basis and subject to adequate surplus space being available for Licensee's Facilities. No attachment shall be
made which would violate any term or condition of Company's existing easements, rights -of -way or licenses pursuant
to which the pole has been erected and maintained.
1
(b) Compliance with Laws, Rules and Regulations. Licensee shall at all times install, maintain and
remove Licensee's Facilities in accordance with the requirements and specifications of all applicable federal, state
and local laws, including rules and regulations adopted pursuant thereto, including, but not limited to, the National
Electrical Safety Code, Company's Electric Distribution Construction Standards, and the Occupational Safety and
Health Act, as each may be amended and updated from time to time, as well as such other reasonably necessary rules
as may be set from time to time by Company. Company shall in no way be responsible for the installation,
construction, operation or performance of Licensee's Facilities.
(c) Application to Attach. Prior to installing any of Licensee's Facilities on the Company Facilities,
Licensee shall apply for and receive approval from Company using the application form supplied by Company, a
sample of which is attached hereto as Exhibit A, as same may be amended and updated by Company from time to
time. Licensee shall fill out said application forms properly and include copies of maps indicating the poles to which
Licensee intends to attach and Licensee's Facilities to be attached thereto. No attachments shall be made unless and
until Company issues a permit therefore. Upon receipt of an approved permit, but no sooner, Licensee shall have the
right to install, maintain, and use the equipment described in said application upon the poles identified therein,
provided that Licensee shall complete installation within sixty (60) days where no make ready work is required on
the part of Company and within ninety (90) days where such make ready work is required for the installation of
Licensee's Facilities.
(d) Make Ready and Accommodations. Prior to approving Licensee's request to attach Licensee's
Facilities on the Company Facilities, Company may, at its sole discretion, inspect the poles to which Licensee
intends to attach to determine if any changes are necessary to accommodate Licensee's request. Licensee shall be
responsible for all costs associated with such inspection, which may include, without limitation, engineering, survey
and administrative costs. If any of Company's poles are inadequate to support the additional facilities in accordance
with the greater of: (i) specifications of Company's Electric Distribution Construction Standards or (ii) the National
Electrical Safety Code, or as described herein, Company shall indicate on said application the changes necessary to
accommodate Licensee, together with the estimated cost of doing such work and shall return the application to
Licensee. If Licensee still desires to make the attachments, it shall return the application to Company indicating
thereon its approval and shall make a payment to Company of a deposit in said amount to cover such estimated costs.
Thereupon, if necessary, Company shall replace such Company Facilities with suitable poles or perform such other
necessary work due to the presence of Licensee's Facilities.
Furthermore, Licensee agrees to pay Company for the portion of the cost and expense attributable to: (i) the
increased cost of any larger poles, (ii) the cost of removal of any poles less any salvage value, (iii) the expense of
transferring Company's utility attachment from the old poles to the new poles, and (iv) other costs specified herein.
In the event that the installation of Licensee's Facilities would interfere with attachments already in place belonging
to others, the location and method of attachment of Licensee's facilities shall be determined by Company. Where
Licensee's attachments are made to existing poles by rearranging the facilities thereon, Licensee shall compensate
Company and any other owners of facilities on such poles for the full expense incurred in rearranging such facilities.
Licensee shall also pay Company for any expenses incurred in strengthening such poles by guys, anchors or other
means, in order to permit the attachment of Licensee's equipment. Licensee shall not use Company's anchors or guys
without Company's prior written approval. It is understood that the charges for rearranging Company's facilities to
allow such attachments include all costs for such arrangement which include, but are not limited to, all engineering
and supervision labor, materials and administrative costs.
(e) Inspections by Company. Company shall have the right, but not an obligation, to inspect any of
Licensee's Facilities on the Company Facilities prior to and during installation, and to conduct random field
inspections of Licensee's Facilities after installation. If Company discovers that Licensee's Facilities are not
installed according to the terms and conditions set out in this Agreement, Company has the right to stop the work and
require immediate action by Licensee to correct the installation. Licensee shall pay the entire cost of any inspection
done by Company. For all attachments to the Company Facilities which are found by Company or Licensee for
which there does not exist an approved permit, Licensee shall immediately shall submit an application for the
attachment and pay any applicable make ready costs for the unauthorized attachments.
(f) Overlashing. Overlashing of Licensee's Facilities with additional facilities (whether Licensee's or a
third party's) ( "Overlashing ") shall be permitted under this Agreement, so long as Licensee gives Company prior
written notice of its intent to overlash. Such notice shall contain a detailed description of the Overlashing, including,
without limitation, (i) the parties responsible for the Overlashing, (ii) the current attachments to be overlashed, and
(iii) any other information reasonably requested by Company. There will be no annual attachment fee for
Overlashing; however, make ready costs may be payable by Licensee if applicable.
2
(g) Maintenance of LICENSEE Facilities. LICENSEE Facilities shall be maintained by LICENSEE at
LICENSEE's expense in a manner satisfactory to COMPANY. A manner satisfactory to the COMPANY must
meet the requirements of all bargaining unit labor and local jurisdictional agreements that outline the
requirements for a "Qualified Employee." A qualified employee as defined by OSHA 1910.269 (a) (2) (ii)
sections (A), (B) & (C), is a worker who is knowledgeable in the construction and operation of the electric
power generation, transmission, and distribution equipment involved in his or her job, along with the
associated hazards. Existing labor agreements require any work performed by LICENSEE or 3 party
Contractor under the direction of the LICENSEE on COMPANY owned facilities above the
"Communications Safety Zone" must be performed by a "Qualified" union journeyman lineman. Upon receipt
of notice from COMPANY that said attachments interfere with COMPANY's property or pre- existing facilities of
others, to include any relocation, removal or rearrangement thereof, or endanger the public or COMPANY's
employees, LICENSEE shall, at its own expense, alter, rearrange, reroute, improve or repair said attachments in such
manner as COMPANY may require. The COMPANY shall be under no obligation to replace COMPANY's
structures in any predetermined time frame should damage occur due to storms or car hits beyond the
COMPANY's control. COMPANY will perform replacement to damaged poles in a reasonable time frame
determined by the COMPANY.
4. Fees.
(a) Annual Attachment Fees. N/A per Pueblo Franchise
(b) Late Payments. N/A per Pueblo Franchise
5. Billing. N/A per Pueblo Franchise
6. Licensee's Records. All Licensee's records pertaining to attachments to the Company Facilities,
including, but not limited to, maps, plats, design drawings, permits and intra- company correspondence, shall be open
to Company's inspection for the purpose of verification under this Agreement. Access shall be granted to Company
personnel, or its outside auditors or contract personnel, during normal working hours on fourteen (14) calendar days'
notice by Company. All information disclosed under this paragraph 6 shall be deemed confidential and proprietary
information. Such information shall not be disclosed to any third party without the consent of Licensee, except
pursuant to a valid court order or otherwise required by law.
7. Licensee's Licenses, Easements, etc. Company assumes no responsibility for securing franchises,
rights -of -way permits or easements for the making and maintaining of Licensee's Facilities over, across, or along
streets, alleys, roads, or privately or publicly owned property, or permission to make such attachments to the poles of
others. Licensee assumes the duty and responsibility of securing the same. The permission herein granted is
likewise subject to all laws, ordinances and regulations now in force or which may hereafter be enacted or
promulgated by any governmental body or agency having jurisdiction.
In the event any franchise, license, permit, consent, or easement held by Licensee is revoked, or is hereafter
denied to Licensee for any reason, in whole or in part, Licensee's rights hereunder shall immediately terminate to
such extent, and Licensee shall within a reasonable time remove such equipment from Company's poles as may be
required to comply with revocation or denial of authority. Company at its option may terminate this Agreement if
Licensee's authority is revoked in its entirety. However, Licensee's rights hereunder shall not terminate and Licensee
shall not be required to remove its attachments to the extent that and while Licensee is diligently pursuing good faith
efforts to contest such denial or revocation in appropriate judicial and/or administrative proceedings, provided that
Licensee further agrees to protect, indemnify, and hold harmless Company from any and all claims, demands, or
causes of action, suits, or other proceedings of every kind and character resulting from the presence of Licensee's
attachments on the poles of Company, backed by letters of credit, bonds, or guaranties reasonably satisfactory to
Company.
8. No Interference with Other Arrangements. In the event that the installation or operation of
Licensee's Facilities, or any part thereof, interfere with telephone, telegraph, radio or television reception or other
regularly used communication or signaling arrangements, upon notification thereof by Company, Licensee shall
immediately proceed to eliminate, at its expense, the cause of such interference by altering, rearranging, or changing
the installation or operation of its system. If it is determined that such interference has been caused by improper
installation or operation of Licensee's Facilities, and the determination was made by Company at its expense,
Licensee, when requested by Company, shall reimburse Company for any expense in connection therewith.
3
9. Precautions. Licensee agrees to take any necessary precautions, by the installation of protective
equipment or otherwise, to protect all persons and property against injury or damage that may result from attachment
of Licensee's Facilities to the Company Facilities. If, in Company's opinion, Licensee has not taken such necessary
precautions, Company shall have the right by written notice to Licensee to terminate the permission herein granted.
However, Company shall not be considered in any way responsible for the adequacy or inadequacy of such
precautions of Licensee.
10. Indemnification. Licensee agrees to indemnify, defend and save Company harmless against any loss
or damage that may result to the equipment or any property owned or used by Company and from and against any
and all legal and other expenses, costs, losses, suits or judgments for damage, injuries, or death arising to persons or
property, or in any other manner, by reason of the construction, use or maintenance of Licensee's Facilities on the
poles of Company.
11. Insurance. Licensee shall secure commercial general liability insurance satisfactory to Company
covering bodily injury and property damage. The insurance required by this Agreement shall include Workers'
Compensation and employer's liability coverage in the amount required by applicable law, automobile liability and
general liability coverage's, including premises- operations, contractual liability and independent contractor liability
for no less than $1,000,000 combined single limit per occurrence and shall name Company as an additional insured.
Licensee shall furnish satisfactory Certificates of Insurance before approval is granted and for any renewals thereof
to Company so long as this Agreement shall remain in effect. Certificates of Insurance must include a non - restricted
thirty (30) days' notice of cancellation or material change provision.
12. Bond. N/A for municipal entities
13. Assignment or Delegation. Licensee shall not assign, transfer, or sublet any of the rights herein
granted, and shall not delegate the performance of its duties required herein without the written consent of Company
having first been obtained, which consent shall not unreasonably be withheld. Company may make assignments or
delegations upon notice to Licensee.
14. No Property Rights. Nothing herein contained shall be construed to confer upon Licensee any
property rights in Company's poles or other distribution facilities, or to compel Company to maintain said poles or
other distribution facilities longer than the business of Company requires in the sole judgment of Company.
15. Company's Right of Removal. Company reserves the right to remove at Licensee's expense
Licensee's Facilities or any part of them upon failure of Licensee to comply with any of the conditions hereof, and
the permit granted in this Agreement shall thereupon terminate as to the attachments to be removed. Company will
not be responsible for the condition of Licensee's equipment which is removed or the equipment it is disconnected
from. Licensee shall pay Company for all costs incurred for such removal and for any storage charges Company
incurs.
16. Term and Termination. This Agreement shall become effective upon signature by the parties hereto
and shall remain effective for a term of five (5) years thereafter. Thereafter, this Agreement shall remain in effect
until terminated by either party by giving to the other party sixty (60) days written notice of its intent to terminate.
Notwithstanding the foregoing, Licensee may terminate this Agreement at any time by giving sixty (60) days written
notice to Company, and Company may terminate this Agreement at any time upon an Event of Default, as set forth in
paragraph 17. Company reserves the right to renegotiate this Agreement by giving written notice to Licensee if a
change in regulations or laws applicable to this Agreement materially alters the assumptions upon which this
Agreement was made, or if such change renders this Agreement illegal. If the parties are unable to agree on new
terms within thirty (30) days after Company's written notice was sent to Licensee, this Agreement shall terminate
sixty (60) days after such written notice was sent to Licensee. Upon termination for any reason, Licensee shall
immediately remove all of Licensee's Facilities from the Company Facilities.
17. Events of Default. The following events shall be deemed to be events of default by Licensee (each, an
"Event of Default "):
(a) Licensee shall fail to comply with any term, condition, or covenant of this Agreement,
other than the payment of rent, and shall not cure such failure within thirty (30) days after
written notice thereof to Licensee; or if such failure cannot reasonably be cured within
thirty (30) days, Licensee shall not have commenced to cure such failure within said thirty
(30) days and shall not thereafter with reasonable diligence and good faith proceed to
cure such failure.
4
Upon the occurrence of any of such Event of Default, Company shall have the option to pursue any one or
more of the following remedies without any notice or demand whatsoever: (1) terminate this Agreement in its
entirety; (2) revoke the permit covering the pole or poles involved in such default or noncompliance or satisfy the
obligations of Licensee to Company from the bond required by Paragraph 12; or (3) obtain service of an attorney to
institute suit or other judicial proceeding to remedy any default by Licensee in its performance of the covenants,
terms, and conditions of this Agreement.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any other remedies herein provided or
any other remedies provided by law, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver
of any rental due to Company hereunder or of any damages accruing to Company by reason of the violation of any
terms, conditions, and covenants herein contained.
18. Removal, Abandonment or Modification.
(a) By Licensee. If Licensee intends to remove, abandon or modify any of Licensee's Facilities,
Licensee shall give sixty (60) days' written notice to Company describing time, location, reasons and other necessary
information as Company may request using the form supplied by Company, a sample of which is attached hereto as
Exhibit B, as same may be amended and updated by Company from time to time. Licensee shall use the utmost care
in removing or modifying Licensee's Facilities to the satisfaction of Company and shall avoid causing any negative
consequences and damages to the Company Facilities. Licensee shall be solely responsible for any consequences
and damages caused by its removal, abandonment or modification. Licensee shall remove any abandoned equipment
from Company Facilities within thirty (30) days after giving such notice to Company. If Licensee fails to remove its
abandoned equipment within such 30 -day period, Company may remove the abandoned equipment at Licensee's
expense as provided in Paragraph 15.
(b) By Company. If Company intends to abandon, remove, replace, or otherwise modify any of the
Company Facilities to which Licensee has secured attachments, Company shall give Licensee sixty (60) days' written
notice. If at the expiration of this period any of Licensee's property remains attached to the pole(s), Company may
remove Licensee's property and charge a penalty in the amount of One Hundred Fifty Dollars ($150.00) per pole for
the costs of such removal. Licensee may, however, avoid this liquidated damage penalty and assume ownership of
the abandoned pole if Licensee (1) notifies Company of its intent to do so prior to the expiration of the sixty (60) day
notification deadline, (2) pays Company a sum equal to the value in place of such abandoned pole as calculated by
Company and agreed to by Licensee, and (3) agrees in writing to indemnify and hold harmless Company for any and
all obligations, liabilities, settlements, judgments, damages, costs, expenses, attorneys' fees or other charges incurred
by Company as a result of injury to person or property, regardless of the cause and notwithstanding any fault by C
Company.
19. No Liability on Company. Licensee agrees and acknowledges that Company has no experience or
expertise in any of Licensee's Facilities. Licensee shall be solely responsible for any losses or damages to
Licensee's Facilities, including, but not limited to, fiber optic cable, except where it is found that such losses or
damages were solely and directly caused by reckless or willful misconduct on the part of Company's employees or
agents when working on the Company Facilities.
20. Miscellaneous.
(a) Integration and Amendments. This contract replaces all previous contracts between the parties, and
all such prior contracts are hereby mutually terminated by this Agreement. Any amendments to this Agreement must
be in writing and signed by authorized representatives of Company and Licensee.
(b) Notice. All communication relating to this Agreement shall be sent by certified mail, return receipt
requested, facsimile, or overnight mail to the following addresses, or as may be later designated by written notice to
the other party:
If to Company:
Address: Black Hills /Colorado Electric Utility Company, L.P.
d/b /a Black Hills Energy
105 S Victoria Ave
Pueblo, CO 81003
Attention: Tom Ruth, Director Business Operations
5
If to Licensee:
Mailing Address: City of Pueblo, Colorado
Pueblo, Colorado 81003
Physical Address: Same as above
Attention: Mr.
(c) Waiver. The waiver of either party of a breach or a default of any portion of this Agreement by the
other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall
any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has,
or may have hereunder, operate as a waiver of any right, power or privilege by such party.
(d) Severability. In the event that any provision of this Agreement is held in a proceeding of competent
jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the
validity of the remaining provisions shall not be affected.
(e) Third Party Rights. Nothing herein contained shall be construed as affecting or limiting the rights or
privileges previously conferred by Company to a third party, by contract or otherwise to use the Company Facilities,
and Company shall have the right to continue to extend such rights or privileges to others.
(t) Headings. Captions and headings contained in this Agreement have been included for convenience
of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of
this Agreement.
(g) Governing Law and Dispute Resolution. This Agreement shall be governed, construed and enforced
in accordance with the laws of the State of Colorado and the Federal Communications Act of 1934, as amended,
including, without limitation, the Telecommunications Act of 1996. The parties hereby agree to the exclusive
jurisdiction of, as may be appropriate, the Federal Communications Commission or any state or federal court within
the State of Colorado for resolution of any matters in connection with the interpretation, construction and
enforcement of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in triplicate by
their respective officers thereunto duly authorized and their corporate seals to be affixed hereto the day and year first
above written.
BLACK HILLS /COLORADO ELECTRIC UTILITY COMPANY, L.P.
d/b /a Black Hills Energy )
Name,��u io�UI
Signature: O / _ i! ,
Title: V p E/geV / /1 t eJ
CITY OF PUEBLO, COLORADO
Name: a() LFnJCC J . T) Ta'Aic t c�
Signatur
Title: PKQ-b(6 C,41 l.OK Petst Se. n4-
6
AGREEMENT
This Agreement is made and entered into by and between the City of Pueblo, Colorado
(Cit') and Black Hills /Colorado Electric Utility Company, LP, d/b /a Black Hills Energy
(Company) effective as of the effective date of that certain Franchise Ordinance No. 8186
(Franchise) and constitutes an independent agreement in support of, and as part of the
consideration for, the Franchise.
WHEREAS, in Section 13.1A of the Franchise, the City reserves the right to exercise its
Constitutional power to create and operate a municipal electric utility under applicable law
(including the right to own its own electric power generation, transmission and distribution
systems), and
WHEREAS, the Company has the right and duty to serve all of its customers within its
certificated electric public utility service territory granted to it pursuant to applicable provisions
of the Public Utilities Law, §40 -1 -101, C.R.S. et seq., and is required to have sufficient facilities
and capacity and energy resources to fulfill that duty, and
WHEREAS, the Company is currently required to file resource plans with the
Commission at least every four years (with the next scheduled resource plan to be filed in 2011),
renewable energy compliance plans on an annual basis, and electric transmission facility
construction or extension plans on an annual basis (collectively, the'Resource Plane.
WHEREAS, the City is an existing electric customer of the Company, and
WHEREAS, the parties desire to set forth a process and procedure that will give the
Company a reasonable opportunity to adjust its Resource Plans, as necessary, to mitigate any
damages that might otherwise be caused to the Company in the event the City exercises its right
to create and operate a municipal electric utility solely to serve City Facilities as that term is
defined in the Franchise.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Disclosure. The City shall keep the Company reasonably informed, on an
ongoing and confidential basis, of any plans of the City to own or lease (either as the City or
through a City Enterprise) electric power generation, transmission and /or distribution systems
including, but not limited to, renewable energy resources such as solar and wind resources,
and /or to create and operate a municipal electric utility.
2. Notice. The City shall give the Company a minimum of one (1) years notice
before the City, or an Enterprise of the City, commences operation as a municipal electric utility
to serve City Facilities with electric power generated by the City or an Enterprise of the City.
The City shall give the Company a minimum of two (2) years notice before the City, or an
Enterprise of the City, commences operation as a municipal electric utility to serve City
Facilities with electric energy or capacity purchased on a wholesale basis; provided, however,
that if such energy or capacity is purchased from the Company on a wholesale basis, such notice
period shall be reduced to one (1) year.
3. Confidentiality. All information furnished to Company by City pursuant to this
Agreement (the "Confidential Information ") shall be deemed confidential and proprietary
information, excluding information which (a) becomes generally available to the public other
than as a result of a disclosure by Company or its Representatives; (b) was available to Company
on a non - confidential basis prior to its disclosure by the City; or (c)was or is made available to
Company on a non - confidential basis by another source, provided that such source is not bound
by a similar confidentiality obligation. Unless otherwise agreed in writing, Company shall not:
(a) disclose or reveal any Confidential Information to any persons or entities other than those of
its employees and representatives who are actively and directly involved in the Company's
Resource Plans, which employees and representatives shall be required by Company to observe
the terms and conditions set forth herein as though each employee and representative were bound
hereby, or (b) use the Confidential Information for any purpose other than in connection with the
Company's Resource Plans, except as required by law.
In the event Company or its employees or representatives are requested or required (by
oral questions, interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process from a governmental authority, agency or tribunal) to
disclose any Confidential Information, it is agreed that Company will provide City with prompt
notice of such request in order that City may seek an appropriate protective order and/or waive
compliance with the provisions of this Agreement. If, failing the entry of a protective order or
the receipt of a waiver hereunder, Company or its employees or representatives are, in the
opinion of counsel, compelled to disclose Confidential Information under pain of liability for
contempt or other censure or penalty, such information may be disclosed to the governmental
authority, agency or tribunal without liability hereunder; however, Company also will exercise
its commercially reasonable efforts to obtain a protective order in regard to any such disclosure,
or to obtain other reliable assurance that confidential treatment will be accorded to any such
Confidential Information which is disclosed.
4. No Taking or Inverse Condemnation Claims. The Company agrees that upon the
City's good faith compliance with the provisions of this Agreement, the Company will have a
reasonable opportunity to adjust its Resource Plans, as necessary, to mitigate any damages that
might otherwise be caused to the Company in the event the City exercises its right to create and
operate a municipal electric utility solely to serve City Facilities and, therefore, the Company
irrevocably acknowledges and agrees that it will not have any taking claims or inverse
condemnation claims against the City arising from such exercise of the City's rights.
5. Limitation on Scope of Agreement. The terms of this Agreement are limited to
the provision of electric utility sales or delivery service by a City municipal electric utility to
City Facilities and the Company and City fully reserve their respective rights and claims with
respect to any electric utility sales or delivery service provided by a City municipal electric
utility to any other customers of Company located within its certificated electric public utility
service territory granted to Company pursuant to the Colorado Public Utilities Law. Nothing in
this Agreement shall authorize the City to utilize Company Facilities in connection with the
City's creation and operation of a municipal electric utility and the Company and City expressly
reserve their respective rights and claims as to any such proposed use.
6. Term of Agreement. This Agreement shall remain in full force and effect during
the term of the Franchise and any extensions thereof.
7. Successors and Assigns. The obligations and covenants of this Agreement shall
be binding upon any City- approved transferee of the Franchise.
8. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Colorado.
9. No Third Party Beneficiaries. Nothing in this Agreement is intended for the
benefit of third parties and there shall be no third party beneficiaries of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
CITY OF PUEBLO
ATTEST:
-clr)
V2&
City erk President of City Council
APPROVED AS TO FORM:
__Z
City Attorn
BLACK HILLS /COLORADO ELECTRIC
UTILITY COMPANY L.P. d /b /a BLACK
HILLS ENERGY
By —.418.4. L.A.
Name: ` , i ,1 ' V
SEAL Title: VP 1� //C C jithIdieS'
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
STREET LIGHTING AGREEMENT
Date: May 21, 2010
THIS STREET LIGHTING AGREEMENT, made and entered this 10th day of
August, 2010 by and between BLACK HILLS /COLORADO ELECTRIC UTILITY
COMPANY, L.P. d/b /a BLACK HILLS ENERGY, a company duly organized and
existing under the laws of the State of Colorado, hereinafter referred to as "Company ",
and the CITY OF PUEBLO, a municipal corporation existing under Article XX of the
Constitution of the State of Colorado and the Charter of the City of Pueblo, hereinafter
referred to as "City ".
WITNESSETH:
WHEREAS, the Company is a public utility engaged in the distribution and sale of
electric energy and electric service within the corporate limits of the City; and
WHEREAS, on May 27, 2008, the City approved Ordinance No. 7804
approving the transfer of an electric utility franchise and street lighting agreement from
Aquila, Inc., to the Company; and
WHEREAS, the existing electrical utility franchise and street lighting agreement
between the City and Aquila, Inc., will expire on August 15, 2010, and the Company
and the City desire to enter into a new agreement for the service of street lighting to the
City;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
and promises of the parties hereto, it is hereby agreed as follows:
ARTICLE 1
DEFINITIONS
For the purpose of this street lighting agreement, the following words and phrases
shall have the meaning given in this Article. When not inconsistent with context, words
used in the present tense include the future tense, words in the plural include the singular,
and words in the singular include the plural. The word "shall" is mandatory and "may"
is permissive. Words not defined in this Article shall be given their common and
ordinary meaning.
§ 1.1 "Applicable Authority or Applicable Authorities" refers to any governmental
body or forum vested by law with authority to do the act or to make the order, rule or
regulation involved.
§ 1.2 "City" refers to Pueblo, a municipal corporation of the State of Colorado,
organized and existing under Article XX of the Constitution of the State of Colorado
and the Home Rule Charter of the City.
§ 1.3 "City Council" or "Council" refers to the legislative body of the City.
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
§ 1.4 "Company" refers to Black Hills /Colorado Electric Utility Company, L.P.
d /b /a Black Hills Energy, and its successors and assigns, and including affiliates
or subsidiaries that undertake to perform any of the obligations under this
agreement.
§ 1.5 "Company Facilities" refer to all facilities owned or legally and beneficially used by
the Company reasonably necessary to provide Utility Service, as defined in the
Franchise, into, within and through the City, including but not limited to plants,
electric works, systems, substations, transmission and distribution structures,
lines, equipment, pipes, mains, conduit, transformers, underground lines, meters,
meter reading devices, communication and data transfer equipment, control
equipment, street lights, wire conductors, cables and poles.
§ 1.6 "Company -Owned Non - Ornamental Street Lights" refer to luminaires attached to
brackets mounted on the Company's standard wooden or composition poles of the
type used in its electric distribution system.
§ 1.7 "Company -Owned Ornamental Street Lights" refer to luminaires attached either
to Company -owned ornamental standards or directly to vehicular underpass
structures or vehicular tunnels, or other structures and differentiated in appearance
from Company -Owned Non - Ornamental Street Lights.
§ 1.8 "Force Majeure" means physical or governmental causes of the kind not
reasonably within the control of the Company including, but not be limited to,
disaster, labor disturbances, strikes, lockouts, other industrial disturbances, acts of
God, acts of a public enemy, war, blockade, riot, insurrection, lightning, fire,
storm, flood, explosion, or any other condition, whether enumerated or not, that is
beyond the reasonable control of the Company.
§ 1.9 "Franchise" refers to Pueblo City Ordinance 8186 which is the franchise agreement
between the City of Pueblo, Colorado and Black Hills/Colorado Electric Utility Company,
L.P. d/b /a Black Hills Energy.
§ 1.10 "City Manager" refers to the City Manager of the City, or such other official of the
City who shall succeed to the duties and responsibilities of said Manager as set
forth in the Charter of the City.
§ 1.11 "Other City Property" refers to the surface, the air space above the surface and the
area below the surface of any property owned or controlled by the City or hereafter
held by the City, including Parks or City buildings. Other City Property shall not
include Public Ways and Places.
§ 1.12 "Parks" refer to municipal parks, park areas, playgrounds, playfields, lake
facilities, swimming pools, fountains, recreation and community buildings, sports
arenas, stadia, golf courses, city cemeteries, and related facilities, both inside and
outside the corporate limits; public physical, and cultural recreational facilities,
2
Amu
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
concert facilities, public monuments, museums, and all similar or related
facilities.
§ 1.13 "Public Utilities Commission," "PUC" or "Commission" refers to the Public
Utilities Commission of the State of Colorado or other state agency succeeding to the
regulatory powers of the Public Utilities Commission.
§ 1.14 "Public Ways and Places" refer to the surface, the air space above the surface and
the area below the surface of any City dedicated public right -of -way. Public Ways
and Places shall not include Other City Property.
§ 1.15 "Residents" refer to all persons, businesses, industries, governmental agencies,
and any other entity whatsoever, presently located or to be hereinafter located, in
whole or in part, within the territorial boundaries of the City.
§ 1.16 "Streets" or "City Streets" refers to the surface, the air space above the surface and
the area below the surface of any City dedicated streets, alleys, sidewalks,
bridges, roads, viaducts, lanes, public easements, and other public rights -of -way
within the City. Streets shall not include Public Utility Easements (as defined in
the Franchise) or park properties.
§ 1.17 "Street Lighting Facilities" refer to all Company Facilities necessary to provide
Street Lighting Service.
§ 1.18 "Street Lighting Service" refers to the illumination of Public Ways and Places
and Other City Property by means of Company -Owned Non - Ornamental Street
Lights and Company -Owned Ornamental Street Lights located in the City or
along the streets adjacent to the City limits thereof, supplied from Company's
overhead or underground electric distribution system.
ARTICLE 2
PURPOSE AND SCOPE
§ 2.1 Purpose. The Company shall furnish and sell to the City, and the City shall
take and purchase from the Company, subject to the Company's applicable
tariffs and all conditions and limitations, terms, and provisions contained in this
street lighting agreement, Street Lighting Service used by the City within the
territorial boundaries of the City and within the service territory of the Company
as established by the Colorado Public Utilities Commission. The City hereby
grants to the Company the right to make reasonable use of City Streets, Public
Ways and Places, and Other City Property to provide such Street Lighting Service
to the City.
§ 2.2 Scope. This street lighting agreement shall extend to all areas of the City, as it is
now or hereafter constituted.
§ 2.3 Conditions And Limitations.
3
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
A. Subject To City Usage. The right to make reasonable use of Public Ways
and Places to provide Street Lighting Service to the City is subject to and
subordinate to any City usage of said Public Ways and Places.
B. Police Powers. The parties expressly acknowledge the City'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.
C. Regulation Of Public Ways And Places Or Other City Property. The parties
expressly acknowledge the City's right to enforce reasonable regulations
concerning the Company's access to or use of the Public Ways and Places or
Other City Property, including requirements for permits.
D. Compliance With Laws. The Company shall promptly and fully comply with
all laws, regulations, permits, and orders of any Applicable Authority.
E. Subject To Franchise. The parties .expressly acknowledge that this agreement is
subject to the terms and conditions of the Franchise. In the event of any
inconsistent provision between the Franchise and this agreement, the terms of
the Franchise shall be controlling.
§ 2.4 Term And Execution Of Street Lighting Agreement.
A. This street lighting agreement shall be effective for a period coincident with the
term of the Franchise granted to the Company by the City and approved by the
electors of the City at the election to be held on or before August 10, 2010. If
the Franchise is not approved by the electors of the City at the election, this
street lighting agreement shall be void and of no force or effect.
13. City Council Approval. Approval by the City Council of the City of Pueblo,
acting by ordinance, in accordance with Section 3 -9 of the Charter of the City
of Pueblo is and shall be an express condition precedent to the lawful and
binding execution, effect and performance of this street lighting agreement.
Such approval shall authorize the President of the City Council and other
necessary or proper officials of the City to sign this street lighting agreement in
the name of the City, and shall authorize the City Clerk to attest to the same
under seal of the City.
C. Execution. Within twenty (20) days after approval of the Franchise by vote of
the registered electors of the City, the Company shall signify its acceptance
of this street lighting agreement by executing this street lighting agreement
and delivering five (5) executed originals to the City Clerk. Upon receipt of
the executed street lighting agreement, the President of the City Council and
other necessary or proper officials of the City are hereby authorized and
directed to sign this street lighting agreement in the name of the City, and the
City Clerk is hereby authorized and directed to attest to the same under seal of
the City, and to do all things necessary for the delivery of this street lighting
4
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
agreement and for fully carrying out the street lighting agreement.
ARTICLE 3
LIGHTING PERIODS AND RATES
§ 3.1 Lighting Periods. The lighting periods shall be determined in accordance with
applicable tariffs on file with the Public Utilities Commission.
§3.2 Rates. The City shall pay the Company for Street Lighting Service pursuant to
the rates and at the times set forth in the Company's tariffs on file and in effect from
time to time with the Public Utilities Commission.
ARTICLE 4
CITY MANAGER
§ 4.1 City Manager. The City Manager is hereby designated the official of the City
having full power and authority to administer this street lighting agreement,
including the power to take appropriate action to require the enforcement of the
provisions of this street lighting agreement and to investigate any alleged violations
or failures of the Company to comply with the provisions of this street lighting
agreement, or to adequately and fully discharge its responsibilities and obligations
under this street lighting agreement. The failure or omission of the City Manager
to so act shall not constitute any waiver or estoppel, nor limit independent action by
either the City Manager, or by other City officials. The City Manager shall
designate a City representative to act as the primary liaison with the Company and
provide the Company with the name and telephone number of said City
representative.
§ 4.2 Administration Of Street Lighting Agreement. In order to facilitate the
administration of this street lighting agreement, the Company agrees as follows:
A. The City Manager or the City Manager's designee shall have the right to
inspect, at all reasonable times, any Street Lighting Facilities in Public Ways
and Places or Other City Property;
B. The City Manager or the City Manager's designee may investigate and convey
to the Company and to the PUC any complaint of any Resident regarding Street
Lighting Service;
C. The Company shall designate a local representative to act as the primary
liaison with the City and to provide the City Manager with the name, location
of the local office, electronic mail address, and the local telephone number for
the Company's local representative; the Company may change its designation by
providing written notice to the City Manager; the City Manager shall designate a
City representative to act as the primary liaison with the Company and to
provide the Company with the name, location and telephone number of said
5
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
City representative; the City Manager may change this designation by
providing written notice to the Company; and
D. The Company shall provide convenient and effective procedures for all
Residents to report outages of street lights; such procedures may include, but
are not limited to, establishing a single purpose telephone number, a single -
purpose electronic mail address or a single purpose reporting form accessible
through Company's website, currently "BlackHillsEnergv.coin ".
§ 4.3 Billing And Payment.
A. The Company shall render bills monthly to the offices of the City for Street
Lighting Service for which the Company is entitled to payment and for which
the City may authorize payment.
B. Billings for Street Lighting Service rendered during the preceding month shall
be sent to the person(s) designated by the City Manager, and payment for the
same shall be made as prescribed in the applicable tariff on file and in effect
from time to time with the Public Utilities Commission in accordance with the
City's charter, ordinances and regulations, the terms of the Franchise and this
agreement.
C. The Company shall provide all billings and any underlying support
documentation reasonably requested by the City in an editable and manipulatable
electronic format that is mutually acceptable to the Company and the City as
soon as such technology is available to the Company. The Company has
advised the City that it expects to have electronic billing available by March
31, 2011, and the Company agrees to keep the City advised in the event of any
delays in having electronic billing available by that date.
D. Company agrees to meet with the City Manager or designee at least
annually for the purpose of developing, implementing, reviewing, and/or
modifying mutually beneficial and acceptable billing procedures, methods, and
formats including, without limitation, upgrades or beneficial alternatives to the
existing formats, for the efficient rendering and processing of such billings
submitted by the Company to the City.
§ 4.4 Bill Inserts. At the request of the City, the Company agrees to provide and mail,
or deliver as otherwise agreed by the parties, at least annually, a section in a
customer communication insert in its bills to all Residents informing them of 1)
specific procedures for reporting outages of street lights and, 2) available low -
income energy assistance programs.
ARTICLE 5
INSTALLATION, OPERATION AND MAINTENANCE
§ 5.1 Installation Of Facilities. Street Lighting Facilities will be installed when
6
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
requested and authorized by the City in accordance with the following:
A. Company shall furnish and install permanent Company -Owned Non -
Ornamental Street Lights and Company —Owned Ornamental Street Lights
supplied by overhead or underground feed from overhead or underground
distribution circuits in accordance with the Company's tariffs on file from time
to time with the Public Utilities Commission and any applicable rules and
regulations of the Public Utilities Commission, provided that the City shall
install any conduit and foundation for street lighting units on new bridges,
viaducts, underpasses and other similar structures where such facilities are in
an integral part of those structures. To supply street lighting requested by City,
Company -Owned Ornamental Street Lights will be supplied by an
underground feed unless otherwise mutually agreed. In those situations where
City desires to have Street Lighting Service installed on the same fixture as the
City's traffic signal service, the City shall request in writing, and the Company
shall install the luminaires requested by the City. The City shall own the poles,
base and all property on such fixtures, except for the luminaires, which shall be
owned by the Company. The traffic signal shall be metered and the Street
Lighting Service shall be as provided by the Company in accord with its
approved tariffs on file with the Commission.
B. The Company shall install at the request of City temporary street lighting
installations, provided that the City shall bear the cost of installing and
removing all facilities necessary to supply the service requested, less the
salvage value of the materials used. Temporary installations shall be any
street lighting unit installed for periods not to exceed one (1) year, unless
otherwise agreed. In the event an installation planned as a permanent
installation is removed within one (1) year, it shall be deemed to be a
temporary installation and the City shall reimburse Company accordingly.
C. The type and rating of all equipment shall not be less than the standard of the
equipment most recently installed in the City and comparable to that currently
accepted in the industry in the State of Colorado for cities of population of
100,000 or greater, provided that the type and rating of special ornamental
standards to accommodate City traffic signals and Company -owned
luminaires shall be subject to mutual agreement by City and Company. The
Company shall make a good faith effort to insure that the type and rating of all
equipment is effective to provide for safe and proper illumination of Public
Ways and Places.
D. The Company shall have the right to make excavations and parking and paving
cuts necessary for the operation and maintenance of Street Lighting Service,
including the installation of new or moving of existing street lighting
facilities as provided herein, subject to all pertinent Ordinances and Rules and
Regulations of the City.
7
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
E. All new Company -Owned Non - Ornamental Street Lights and Company -Owned
Ornamental Street Light pole installations shall comply with the American
Association of State Highway and Transportation Officials ( "AASHTO ")
requirements for roadway setbacks. The Company will obtain easements for its
street lighting units in those instances where the distance between the curb line
and the property line along the street is less than three (3) feet. If the
Company is unable to obtain the easements, it shall notify the City and the City
may attempt to obtain the necessary easements. If the City is unable to
obtain the easements, the parties will work together to find alternate locations
for pole installations.
F. The Company shall provide to the City:
1. The City and the Company shall work together to develop a process by
which Company data can be input into an electronic map, including GIS
location information, the identification number, pole type, luminaire
type, wattage and date installed of all Company -owned fixtures which
are the subject of this Agreement. The City shall provide to the
Company an electronic base map for use in preparing the information
required by this paragraph. Information required by this section shall
be provided at no cost to the City. The electronic base map shall be
provided to the Company in a format used by the City. The City shall
not charge the Company for the base map.
2. The Company shall also provide a record of all Company -Owned Non -
Ornamental Street Lights and Company -Owned Ornamental Street Lights
installed, which shall clearly specify the location, type and lumen rating
of each light, and shall provide with each monthly bill a list of all
additions and deletions, specifying like information. The City and
the Company shall work together to develop a process or methodology
by which the Company's records (currently in Access computer
format) can be utilized electronically by the City. Information
required by this section shall be provided at no cost to the City.
§ 5.2 Repair, Replacement And Maintenance. The Company shall maintain, repair
and, if necessary, replace, all Street Lighting Facilities utilized in providing
Street Lighting Service within the City in accordance with the applicable tariffs on
file with the Public Utilities Commission. In the event of any conflict between the
provisions of this agreement and tariffs on file with the Commission, the
provisions of the tariffs shall be controlling.
§ 5.3 Painting, The Company shall paint all initially painted street light standards
and brackets and Company -owned luminaires as needed consistent with good
maintenance and to prevent an unsightly appearance. The paint used shall meet
or exceed the standard paint currently accepted in the industry for painting of
street light standards and brackets, including any special ornamental standards
in Colorado.
•
8
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
§ 5.4 Improvements.
A. The City shall at all times be the beneficiary of any improvements in street
illumination, and the Company agrees to cooperate with the City in the
application of such improvements to Street Lighting Service. As burn -outs
occur the Company agrees to substitute lamps of increased efficiency for
lamps in existing luminaires under like conditions of cost and service to the
extent more efficient substitute lamps are available and can be acquired on a
cost - effective basis.
B. The Company also agrees upon request of City to increase the light intensity on
streets by replacing its existing street lighting luminaires not classified as
temporary, at a cost to the City as specified by the applicable tariff, line
extension policies, and rules and regulations of the Public Utilities Commission.
The City will designate the lumen rating required and will pay the appropriate
monthly rate on file, and in effect from time to time, with the Public Utilities
Commission.
C. The Company agrees to investigate and if appropriate, to develop, in
cooperation with the City, new, alternative street light facilities and to support
before the Public Utilities Commission applicable tariffs which are consistent
with and reflect the purchase, installation and/or maintenance of such facilities
by the Company.
D. The Company shall provide full cut -off fixtures at the time of the replacement
in ordinary course, of any fixtures except for decorative fixtures. The
objective of this Section D. is to provide fixtures which prevent unnecessary
illumination of the night -time skies,
E. The Company will continue to evaluate technological advances in the street
lighting industry for cost - effective opportunities to improve energy savings
consistent with the provision of safe and reliable service to the City and will
use reasonable efforts to implement technological advances identified by the
Company which the Company believes are consistent with its obligation to
provide safe, reliable service at just and reasonable rates. The Company
reserves the right to seek authorization from the Commission prior to
implementing any technological advances.
§ 5.5 Maintenance. The Company shall provide continuous, reliable illumination at the
illumination level designated by the City as provided in Section 5.4B. In the
operation and maintenance of its street lighting system, the Company will comply
with all applicable safety standards and maintenance criteria as set by federal,
state and local rules, regulations and statutes, as the same may be amended from
time to time. Each individual luminaire shall be fully cleaned and washed by the
Company every thirty (30) months. The Company agrees to repair all non -
functioning street lights no later than forty -eight hours after receiving notification
of non - functioning street lights, subject to Force Majeure. For the purposes of
Sections 5 and 6 of this agreement, "non- functioning street lights" shall include
9
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
lights providing inadequate lighting (i.e., cycling or illumination measured at
street level of less than 75% of full candle power of design standard at time of
installation). The Company further agrees it will repair and restore any City
property or private property damaged or destroyed by the Company, its agents
and employees in conducting the operations herein described, to substantially the
condition such property was in prior to the damage or destruction, or will make
full and complete restitution to the owner thereof.
§5.6 Determination of Lumen Rating. The lumen rating of electric discharge lamps
shall be considered to be the sustained lumen rating determined in accordance with
standard industry practices.
§5.7 Permission from City. Except as necessary to respond to emergency situations,
the Company shall obtain prior permission from the City before installing,
removing or altering any street light fixture.
ARTICLE 6
PERFORMANCE MEASURES
§ 6.1 Outage Credit. Recognizing that even the highest reasonable maintenance service
level cannot guarantee that all street lights will be burning at all appropriate times,
the Company agrees that the City's bill will be reduced by an outage credit to
reflect the number of non-functioning street lights. Commencing during January
1, 2011, at the City's request, the outage credit will be determined by a random
sampling of street Lights twice a year, in a sample area mutually agreeable to the
City and the Company. The sample shall include at least 350 lights, but no more
than 450 lights. Representatives of the Company and City shall check each
individual light within the sample area and count the number of non - functioning
street lights. An outage credit for the next six (6) months shall be applied to the
City's street lighting bill in accordance with the following schedule:
% Non- functioning
Lights in the Sample Outage Credit
0 — 1.999% No Credit
2% - 2.999% 1% of total monthly street
lighting base bill
3% - 4.999% 2% of total monthly street
lighting base bill
5% and over 4% of total monthly street
lighting base bill
10
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
The City shall have the right to waive the random sampling. If the City waives its
right, there shall be no outage credit for the following six (6) months.
§ 6.2 Restoration of Street Lights.
A. Starting on January 1, 2011, and continuing for the duration of this street
lighting agreement, the Company shall, upon receiving notice of a non -
functioning street light, as defined in Section 5.5 of this agreement, from the City
by electronic mail notification of the local representative or through such other
convenient and effective procedures as the parties may agree, use its best efforts
to repair the street light to an operational condition no later than midnight of the
second business day after the date on which the notice from the City was
received, subject to Force Majeure.
B. No later than ten (10) business days following the end of each calendar
quarter during the term of this street lighting agreement, starting with the
calendar quarter that begins with January 1, 2011, the Company shall
provide the City Manager's designee with a quarterly report detailing
the Company's actual performance under Section 6.2A for the prior three
month period. The report will be accompanied by any supporting
documentation reasonably required by the City to verify the results of the
report. If the four quarterly reports for a calendar year show that during
such calendar year more than fifteen percent (15 %) rounded to the nearest
tenth of one percent of the street light outages reported to the Company by the
City as provided in Section 6.2A were not repaired to operational condition
within forty -eight (48) hours of the Company's receipt of notice that they
were not operational plus such additional time, if any, during which a
condition of Force Majeure was in effect, the Company shall pay to the
City the ensuing month an amount of money equal to the number of outages
not timely repaired to operational condition times the applicable monthly
flat rate per luminaire. For example, if the sum of the four quarterly
reports for a calendar year shows 100 street light outages during 2011 of
7,000 lumens Mercury Vapor Lamps - Burning Dusk to Dawn installed in
Company -Owned Street Lighting Fixtures, and 20 of those outages were
not timely restored (i.e., more than 15 %), the Company shall pay to the
City 20 x $11.09 (the tariff monthly flat rate for this type of fixture in
effect at the time of the outage).
C. Where a street light is not operational because the pole has been knocked
down, the Company shall use its best efforts to replace the pole and luminaire
within five days, subject to Force Majeure, unless the Company advises the
City Manager or the City Manager's designee that the Company has no
replacement equipment in stock to make the necessary repairs. If the
Company advises that the Company has no replacement equipment in stock to
make the necessary repairs the Company shall, at that time, specify the date
upon which the Company expects to have replacement equipment available
and when the repairs will be made. Subject to Force Majeure, in no event
11
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
shall the repair of a knocked down light pole be delayed more than 30 days
from the date of the report to the Company of the knocked down pole.
§ 6.3 No Duty To Third Parties. The performance measures established by Article 6
reflect a financial arrangement between the City and the Company to ensure that
the City has received fair value for its payment for Street Lighting Services.
Nothing in this street lighting agreement shall be construed to create a standard of
care or any duty to any third person or to the general public with respect to street
lighting.
§6.4 Attachment of Street Signs. The City shall have the right, without notifying the
Company, to attach typical traffic signage to Company -owned poles in the public
rights of way.
ARTICLE 7
LIABILITY
§ 7.1 City Held Harmless. The Company shall indemnify, defend and hold the City
harmless from and against claims, demands, liens and all liability or damage of
whatsoever kind on account of or arising from the grant of this street lighting
agreement, the exercise by the Company of the related rights, or from the
operations of the Company within the City, and shall pay the costs of defense
plus reasonable attorneys' fees. The City shall (a) give prompt written notice to
the Company of any claim, demand or lien with respect to which the City seeks
indemnification hereunder and (b) unless in the City's judgment a conflict of
interest may exist between the City and the Company with respect to such claim,
demand or lien, permit the Company to assume the defense of such claim, demand,
or lien with counsel satisfactory to the City. If such defense is assumed by the
Company, the City shall not be subject to any liability for any settlement made
without its consent. If such defense is not assumed by the Company or if the
City determines a conflict of interest exists, the parties reserve all rights to seek
all remedies against each other. Notwithstanding any provision hereof to the
contrary, the Company shall not be obligated to indemnify, defend or hold the City
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 City or any of its officers or employees.
§ 7.2 Immunity. Nothing in this Section or any other provision of this street lighting
agreement shall be construed as a waiver of the notice requirements, defenses,
immunities and limitations the Parties may have under the Colorado Governmental
Immunity Act ( §24 -10 -101, C.R. S., et. seq.) or to any other defenses,
immunities, or limitations of liability available to the City by law.
ARTICLE 8
BREACH
§ 8.1 Non - Contestability. The City and the Company agree to take all reasonable and
12
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
necessary actions to assure that the terms of this street lighting agreement are
performed and neither will take any action to secure modification of this street
lighting service before any Applicable Authority.
§ 8.2 Breach.
A. Notice /Cure Remedies. If a party (the "breaching party ") to this street
lighting agreement fails or refuses to perform any of the terms or conditions
of this agreement (a "breach "), the other party (the "non- breaching party ")
may provide written notice to the breaching party of such breach. Upon
receipt of such notice, the breaching party shall be given a reasonable time,
not to exceed sixty (60) days, subject to Force Majeure, in which to
remedy the breach. If the breaching party does not remedy the breach
within the time allowed in the notice, the non - breaching party may
exercise the following remedies for such breach:
1) seek specific performance of the applicable term or condition; and,
2) recovery of actual damages from the date of such breach incurred by
the non - breaching party in connection with the breach.
If a breach is of such a type or nature that it cannot reasonably be
remedied in sixty (60) days, the breaching party shall immediately
inform and demonstrate to the non- breaching party of the fact that the
breach cannot reasonably be remedied in sixty (60) days. The breaching
party shall immediately begin work to cure the breach and shall
diligently and expeditiously prosecute to completion all work necessary
to remedy the breach.
B. Termination Of Street Lighting Agreement By City. In addition to the
foregoing, if the Company fails or refuses to perform any material term
or condition of this street lighting agreement (a "material breach "), the
City may provide written notice to the Company of such material
breath. Upon receipt of such notice, the Company shall be given a
reasonable time, not to exceed ninety (90) days, subject to Force Majeure,
in which to remedy the material breach. that it cannot reasonably be
remedied in ninety (90) days, the breaching party shall immediately
inform and demonstrate to the non - breaching party of the fact that the
breach cannot reasonably be remedied in ninety (90) days. The
breaching party shall immediately begin work to cure the breach and
shall diligently and expeditiously prosecute to completion all work
necessary to remedy the breach. If the Company does not remedy the
material breach within the time allowed in the notice, the City may, at
its sole option, terminate all of the Company's rights under this street
lighting agreement. This remedy shall be in addition to the City's right
to exercise any of the remedies provided for in Section 8.2.A. Upon
such termination, the Company shall continue to provide Street
Lighting Service to the City until the City makes alternative
13
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
arrangements for such service.
C. Company Shall Not Terminate Street Lighting Agreement. In no event does
the Company have the right to terminate this street lighting agreement.
D. No Limitation. Except as provided herein, nothing herein shall limit or
restrict any legal rights or remedies that either party may possess arising
from any alleged breach of this street lighting agreement.
ARTICLE 9
DI SPUTE RESOLUTION
§ 9.1 It is the express intention of the parties to this agreement that all disputes of any
nature whatsoever regarding the agreement, including but not limited to, any
claims for compensation or damages arising out of breach or default under this
street lighting agreement shall be resolved by good faith discussion and negotiation
between the parties before litigation is commenced. Either party shall deliver a
written request for good faith negotiation to the other party. Unless otherwise
impractical under the circumstances, the parties shall then have fifteen (15) days to
commence good faith negotiations, and shall complete such negotiations within
thirty (30) days. Good faith negotiation pursuant to this section shall be a
precondition to any lawsuit commenced under this agreement.
ARTICLE 10
MISCELLANEOUS
§ 10.1 Amendments. No alterations, amendments or modifications hereof shall be valid
unless executed by an instrument in writing by the parties with the same formality
as this agreement. Neither this street lighting agreement, nor any term hereof; can
be changed, modified or abandoned, in whole or in part, except by an instrument in
writing, and no subsequent oral agreement shall have any validity whatsoever.
§ 10.2 Approval By City Council. This street lighting agreement, and each and every
one of its provisions and terms, is expressly subject to, and shall not be or become
effective or binding on City or the Company until, approval by the City Council
under and in accordance with Section 3 -9 of the Charter of the City.
§ 10.3 Subject To Local Laws: Venue. Each and every term, provision or condition
herein is subject to and shall be construed in accordance with the provisions of
Colorado law, the Charter of the City, and the applicable ordinances, regulations,
executive orders, or fiscal rules, enacted or promulgated pursuant thereto. Venue
for any legal action relating to this street - lighting agreement shall lie in the District
Court in and for the City and County of Pueblo, Colorado.
§10.4 Examination of Records. The parties agree that any duly authorized representative
of the City, including the Pueblo City Manager or his designee or equivalent
14
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
official, shall have access to and the right to examine any directly pertinent books,
documents, papers, and records of the parties involving any activities related to this
street lighting agreement. All such records must be kept a minimum of four (4)
years.
§10.5 Assignment. The benefits of this street lighting agreement shall inure to and its
obligations shall be binding upon the successors and assigns of the respective
parties hereto.
§10.6 Notice. Both parties shall designate from time to time in writing representatives
for the Company and the City who will be the persons to whom notices shall be sent
regarding any action to be taken under this agreement, 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 as follows:
To the City;
City Manager
One City Hall Place
Pueblo, Colorado 81003
With copies to:
Pueblo City Attorney
503 N. Main Street, Suite 203
Pueblo, Colorado 81003
Department of Transportation
350 South Grand Avenue
Pueblo, Colorado 81003
Attn: Traffic Engineer
To the Company:
Black Hills Energy
105 S. Victoria Ave.
Pueblo, CO 81002
Attn: Vice President of Operations
With a copy to:
General Counsel
Black Hills Corporation
625 Ninth Street
Rapid City, SD 57709
15
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
§ 10.7 No. Discrimination in Employment. The Company shall not refuse to hire,
discharge, promote or demote or discriminate in matters of compensation
against any person otherwise qualified, solely because of race, creed, color,
religion, sex, age, national origin or ancestry or handicap: and further
agrees to insert the foregoing provision or its equivalent in all contracts to
which the Company is a party which affect or relate to its activities in
connection with this street lighting agreement.
§ 10.8 Payment Of Taxes And Fees.
A. The Company shall pay and discharge as they become due, promptly and
before delinquency, all taxes, assessments, rates, charges, license fees,
municipal liens, levies, excises, or imposts, whether general or special, or
ordinary or extra - ordinary, of every name, nature, and kind whatsoever,
including all governmental charges of whatsoever name, nature, or kind, which
may be levied, assessed, charged, or imposed, or which may become a lien or
charge against this street lighting agreement (collectively, "Impositions "),
provided that Company shall have the right to contest any such Impositions
and shall not be in breach of this section so long as it is actively contesting
such Impositions.
B. The City shall not be liable for the payment of taxes, late
charges, interest or penalties of any nature other than pursuant
to applicable tariffs on file and in effect from time to time with
the PUC.
§ 10.9 No Third Party Beneficiaries. It is expressly agreed and understood that the
enforcement of the terms and conditions of this agreement, and all rights of action
relating to such enforcement, shall be strictly reserved to the Company and the
City; and nothing contained in this agreement shall give or allow any such claim
or right of action by any other or third person.
§10.10 Conflict Of Interest. The parties agree that no official, officer or employee of
the City shall have any personal or beneficial interest whatsoever in the
services or property described herein and the Company further agrees not to hire
or contract for services any official, officer or employee of the City or any other
person which would be in violation of Section 2 -11 of the Charter for the City of
Pueblo.
§10.11 Entire Agreement. This street lighting agreement shall constitute the only street
lighting agreement between the City and the Company for furnishing Street
Lighting Service and supersedes and cancels all former street lighting agreements
between the parties hereto.
§10.12 Paragraph Headings. The captions and headings set forth herein are for
convenience of reference only, and shall not be construed so as to define or limit
16
City of Pueblo - BH Street Lighting Agreement May 21, 2010 FINAL
the terms and provisions hereof.
§10.13 Severability. Should any one or more provisions of this street lighting agreement
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 a term that will achieve the
original intent of the parties hereunder.
§10.14 Authority. Each party represents and warrants that it has taken all actions that are
necessary or that are required by its procedures, bylaws, or applicable law, to
legally authorize the undersigned signatories to execute this street lighting
agreement on behalf of the parties and to bind the parties to its terms. The person(s)
executing this street lighting agreement on behalf of each of the parties warrants that
they have full authorization to execute this street lighting agreement on behalf of
their principals.
§10.15 Counterparts of Agreement. This street lighting agreement shall be executed in two
(2) counterparts, each of which shall be deemed to be an original of this street
lighting agreement, and all of which, taken together, shall constitute one and the
same document.
§10.16 City -Owned Street Lighting System. Nothing in this Agreement shall prohibit the
City from constructing and owning all or part of its street lighting equipment and
other facilities, nor limit how the City shall accomplish the same. In the event the
City elects to purchase, construct, install, or operate its street lighting equipment or
facilities, the Company agrees, at the City's request, to provide electricity to
energize these facilities and if requested by the City, the Company will maintain
these facilities in accordance with rates, terms and conditions submitted to and
_ approved by the Colorado Public Utilities Commission.
§ 10.17Discount for Off -Peak Usage. In its presentation of cost -of- service studies to the
Public Utilities Commission for ratemaking purposes, the Company shall utilize, if
allowed by the Commission, allocation methodologies that will equitably distribute
cost to the street lighting class by taking into account such attributes as non -
coincidence with the Company's peaks.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
CITY OF PUEBLO
ATTEST:
I
City erk . President, City Council
17
City of Pueblo - pH Street Lighting Agreement May 21, 2010 FINAL
APPROVED AS TO FORM:
City Attorne 'S
BLACK HILLS /COLORADO ELECTRIC
UTILITY COMPANY L.P. d/b /a BLACK
HILLS ENERGY
BY . I _:. L L
Name: ti/i
SEAL Title: e C* C ( -r j ljJ> L-q
18