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HomeMy WebLinkAbout12019RESOLUTION NO. 12019 A RESOLUTION AUTHORIZING THE ISSUANCE OF A REVOCABLE PERMIT TO SAN ISABEL ELECTRIC ASSOCIATION FOR TEMPORARY NON-EXCLUSIVE USE OF CITY STREETS WITHIN THE COMPANY'S CERTIFICATED SERVICE AREA FOR THE PURPOSE OF DISTRIBUTION AND SALE OF ELECTRICITY BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The attached Revocable Permit is authorized to be issued to San Isabel Electric Association, an electric cooperative ("Company"), for the non-exclusive use of City streets and rights of way within the geographic area for which Company holds a Certificate of Public Convenience and Necessity issued by the Colorado Public Utilities Commission to provide electric service. SECTION 2. The use of the public right-of-way granted hereby is subject to all limitations, terms and conditions set forth in the attached Revocable Permit. INTRODUCED: November 8, 2010 BY: Vera Ortegon COUNCILPERSON Background Paper for Proposed RESOLUTION DATE: AGENDA ITEM # Q-4 November 8, 2010 DEPARTMENT: Law Department Thomas J. Florczak, City Attorney TITLE A RESOLUTION AUTHORIZING THE ISSUANCE OF A REVOCABLE PERMIT TO SAN ISABEL ELECTRIC ASSOCIATION FOR TEMPORARY NON-EXCLUSIVE USE OF CITY STREETS WITHIN THE COMPANY'S CERTIFICATED SERVICE AREA FOR THE PURPOSE OF DISTRIBUTION AND SALE OF ELECTRICITY ISSUE Should City Council issue a temporary Revocable Permit to San Isabel Electric Association ("San Isabel") to provide electric service within that portion of the City for which it holds a Certificate of Public Convenience and Necessity ("CPCN") from the Colorado Public Utilities Commission ("PUC")? RECOMMENDATION The Law Department recommends approval. BACKGROUND Colorado follows the regulated monopoly model with respect to the provision of electricity to retail customers. In furtherance thereof, the PUC issues CPCN's to electric providers for territorial areas within which they are granted the exclusive right to serve the public. In addition to a CPCN, an electric provider must obtain a franchise from any City in which it operates in order to have permission to use the streets and rights of way within the City. With the City's recent annexations to the south, a small portion of the City now lies within San Isabel's certificated service facility. Within that area is one or two users, with the possibility that more users will request service in the future. San Isabel has requested that the City grant a franchise for its area. However, to avoid confusion and other issues that involved Black Hills/Colorado Electric Utility Company, L.P. ("Black Hills") and its franchise for the remainder of the City, San Isabel and City staff deferred action until the Black Hills franchise was approved by the voters. After the approval of Black Hills franchise, there was insufficient time to place a San Isabel franchise question on the ballot for November 2000. In order to avoid unnecessary costs of another franchise election for very few customers, San Isabel has requested that its franchise be submitted to the voters at the Municipal Election to be held in November 2011. In the interim, permission to have its facilities within City streets would be granted by the temporary Revocable Permit. The Revocable Permit before City Council is based upon the Black Hills franchise, within the only essential differences being related to San Isabel's status as an electric cooperative versus Black Hills operation as an investor-owned utility. The term of the Revocable Permit would expire 15 days after the November 2011 election in order to afford time for the canvass of election to occur and the filing of any necessary instruments. San Isabel will pay a 3% Revocable Permit Fee (the same rate as Black Hills' franchise fee) to City, as well collect and remit to City sales tax on all Gross Revenue derived within the City. Should San Isabel reach 1000 customers in the City, it will be required to provide a customer service office and payment locations within the City. FINANCIAL IMPACT None. Issued Effective November 9 2010 REVOCABLE PERMIT ARTICLE 1 DEFINITIONS For the purpose of this Revocable Permit, 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, withm and through the City, and all facilities owned, leased, possessed or otherwise used by the City, or any enterpnse of the City, m connection with the provision of any services or functions which the City, or any enterpnse of the City, is now or may m the future be authonzed 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 San Isabel Electric Association, an electric cooperative and its successors and assigns including affiliates or subsidiaries that undertake to perform any of the obligations under this Revocable Permit. §1 6 "Company Facilities" refer to all facilities owned or legally and beneficially used by the Company reasonably necessary to provide electric service into, withm and through Company's Certificated Area of the City, mcludmg 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 which is. (a) Open daily during normal business hours (currently 8 00 am to 4 00 pm), Monday through Fnday, 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, weathenzation 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 Revocable Permit or otherwise, or 3) redirecting customer specific issues to the appropriate Company personnel responsible for assistance requested by the customer §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 Revocable Permit 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, stnke, 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 Revocable Permit if a failure to perform any of the duties under this Revocable Permit 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, 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 2 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 Revocable Permit shall control except to the extent such Revocable Permit 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 nghts -of -way within the City Streets shall not include Public Utility Easements or park properties 3 §1.22 (Reserved.) §1.23 (Reserved.) §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 Revocable Permit. § 1.25 "Tariffs" refer to those tariffs of the Company on file and in effect. § 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 sale of electricity and any other services by Company to Residents. §1.28 "Certificated Area" means the geographic area within the City of Pueblo for which Company has been granted a valid and unexpired Certificate of Public Convenience and Necessity to provide electric service by the Colorado Public Utilities Commission. ARTICLE 2 GRANT OF REVOCABLE PERMIT §2 1 Grant of Revocable Permit. A. Grant. Pursuant to Section 16 -9 of the Charter of Pueblo, a Municipal Corporation, the City Council of City hereby grants to the Company, subject to all conditions, limitations, terms, and provisions contained in this Revocable Permit, the temporary non - exclusive right to make reasonable use of City Streets within Company's certificated area of the City to do the following: (1) Within the Certificated Area, to furnish and sell electricity to the City and to Residents within the City, and to otherwise carry out the terms of this Revocable Permit. (2) Subject to the term, conditions, and provisions contained in this Revocable Permit, 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 Certificated Area by reasonable non - exclusive use of said City Streets, as may be necessary to carry out the terms of this Revocable Permit. (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 4 and distribution of electric utility service within and through the City This Revocable Permit is intended to be temporary, while Company seeks to obtain a franchise for its Certificated Area. Company shall diligently commence and pursue negotiations for a franchise, the granting of which shall be submitted to the registered electors of the City on November 1, 2011 B Street Lighting Service City and Company may negotiate for Company to provide Street Lighting Service within the Certificated Area. The provision Street Lighting Service shall be pursuant to the terms set forth in a separate "Street Lighting Agreement" which may be entered into between the parties. C Customer Service Office and Customer Payment Locations. At such time as the Company has 1000 customers within the City, the Company shall open and maintain a Customer Service Office within the City of Pueblo In addition, for the convenience of its customers, the Company shall maintain the payment drop box at its Customer Service Office. §2.2 Conditions And Limitations A. Scope of Revocable Permit. The grant of this Revocable Permit shall extend only to all areas of the City as it is now or hereafter constituted which he within the Certificated Area, however, nothing contained in this Revocable Permit 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 Subiect 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 Revocable Permit. D Revocable Permit 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 Revocable Permit, 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 Revocable Permit as provided in Article 18 5 (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 Revocable Permit. (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., (4) To require the maintenance of plant, facilities and service consistent with the police powers of the City and the Public Utilities Laws., (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., (6) To require continuous and nondiscnminatory service to residences in accordance with the terms of this Revocable Permit throughout the entire period hereof, consistent with the police powers of the City and the Public Utilities Laws, and the Company's 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 Revocable Permit does not confer nghts 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 Revocable Permit 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 Revocable Permit is not a warranty of title or any other property interest in any Street, Public Utility Easement, or other public place. 1-1 Waiver Both parties waive as of the effective date of this Revocable Permit Agreement, any claim or defense that any provision of this Revocable Permit Agreement, as it exists on the effective date of this Revocable Permit 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 Revocable Permit granted by this Resolution shall be from the day of approval by City Council to and until November 16, 2011 This Revocable 6 Permit shall take effect at 11 59 pm on the date of such approval, and shall supersede any prior Revocable Permit granted to the Company by the City This Revocable Permit shall terminate at 11 59 99 pm on November 16, 2011, unless extended by mutual consent. B Execution. The Company shall execute this Revocable Permit and deliver five (5) executed ongmals to the City Manager pnor to final approval by the City Council of the Resolution granting this Revocable Permit. C Acceptance and Obligations. The grant of the Revocable Permit shall not become effective unless and until Company has made an unconditional acceptance of the Revocable Permit grant by execution of this Revocable Permit; 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 Revocable Permit. If Company shall fail to timely execute this Revocable Permit within ten (10) days of its grant by City Council, it shall be and become null and void. D Condition Precedent. (reserved) 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 Revocable Permit, 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 matenally 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 nght 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 7 Company except under provisions of this Revocable Permit 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 Revocable Permit 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 REVOCABLE PERMIT FEE §4 1 Revocable Permit Fee A. Fee. In partial consideration for the Revocable Permit, 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 nght, 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 Revocable Permit fee specified herein is declared void for any reason by a court of competent junsdiction, 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 Revocable Permit, an aggregate amount equal to the amount which the Company would have paid as a Revocable Permit 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 Revocable Permit fee revenues provided for herein. In recognition of the length of the term of this Revocable Permit, the Company agrees that in the event any such initiatives or changes adversely impact the Revocable Permit 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 Revocable Permit to provide for an amount in Revocable Permit 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 8 funding as the amount of Revocable Permit fees that would have been paid to the City prior to such initiatives and changes. §4 2 Remittance of Revocable Permit Fee A. Remittance Schedule. Revocable Permit 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 Revocable Permit 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 Revocable Permit, the Company shall provide the City with its estimate of the total Revocable Permit 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 Revocable Permit Fee Payments. In the event that either the City or the Company discovers that there has been an error in the calculation of the Revocable Permit fee payment to the City, it shall provide written notice to the other party of the error If the party receiving the wntten notice of error does not agree with the wntten notice of error, that party may challenge the written notice of error pursuant to Section 4.2.E of this Revocable Permit; otherwise, the error shall be corrected in the next monthly payment. However, if the error results in an overpayment of the Revocable Permit 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 Revocable Permit 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 Revocable Permit Fee. The City Council during the year 2013 and every third year thereafter during the term of this Revocable Permit, 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 Revocable Permit fee should be increased or decreased, it shall provide for such increase or decrease by ordinance. The Company agrees to pay whatever Revocable Permit 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 Revocable Permit fee being greater than 5% of the annual Gross Revenues. The City shall only raise the Revocable Permit 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 9 electric franchisees if the City decreases the franchise fee of any other electric franchisee D Reconciliation and Audit of Revocable Permit 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) (Reserved ) (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 Revocable Permit by filing a wntten 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 Rep ort ReRardm2 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 Revocable Permit Fee Payment Not in Lieu of Permit or Other Fees. So long as the Company performs its obligations under this Revocable Permit 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 Revocable Permit 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 Revocable Permit 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 ]0 Company does not make payment of the Revocable Permit 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 Revocable Permit. ARTICLE 5 ADMINISTRATION OF REVOCABLE PERMIT §5 1 City Designee The City Manager shall designate in writing to the Company an official having full power and authority to administer the Revocable Permit. 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 Revocable Permit 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 Revocable Permit. 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 may prove beneficial and so that the City will be assured that all provisions of this Revocable Permit, 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 11 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 , 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 Service to the City shall be provided at the rates set forth in the Company's approved tariff as the same may be amended from time to time 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 §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. 12 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 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 tnmming 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 13 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' wntten 14 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 authonzed by the Company in wnting 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 Companv Facilities at Public Protects. 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, 15 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 Protect. The Company shall not be responsible for the expenses of any relocation required by Pnvate 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 Revocable Permit 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 Pnonty 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 Revocable Permit. 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 Revocable Permit 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 16 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 nghts 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 nghts. H Coordination. A representative of the Company shall, if notified in advance and when possible, attend monthly nghts 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 Revocable Permit, 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 tariffs and this Revocable Permit, including the payment of Revocable Permit 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 pnor to construction. The City shall pay for the extension of Company Facilities once completed in accordance with the Company's line extension policy §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. 17 §6 12 Movement of Buildmas. 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 City If 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 Revocable Permit, and the Company's approved tariffs. 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 Revocable Permit 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. 18 §8.2 Adiustments 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, (in) 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 19 §9 1 Billing for Utility Services A. Unless otherwise provided in its tanffs, 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 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 rendenng 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 §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, , the City may deduct the unpaid amount from amounts owed by the City to Company for Utility Services 20 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- Emergencv 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 Revocable Permit, 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 in wnting 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. 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. 21 §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 -Wav 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 22 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 Revocable Permit, in addition to the Revocable Permit Fee payable under this Revocable Permit, the Company shall collect from its customers during the term of the Revocable Permit, 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 Revocable Permit Fee) (the "Undergrounding Fee ") for the purpose of undergroundmg 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 Revocable Permit. 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 the Company's tariffs 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 Revocable Permit 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 Protects 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 23 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 Undergroundmg 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 Undergroundmg Fee for the two (2) year penod following such request (or the remaining term of this Revocable Permit if less than 2 years). The Company shall be entitled to recoup such advances from subsequent collection of Undergroundmg 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 Revocable Permit 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 Undergroundmg. If, during the term of this Revocable Permit, the Company should undertake a system wide program or programs of undergroundmg its electric distribution 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 Company , but in no case shall such amount be less than the Undergrounding Fee. Unless otherwise required, funds for the undergrounding program shall be in addition to, and shall not in any way diminish the payment of the Revocable Permit 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 Undergroundmg 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 wntten 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 Revocable Permit, underground the facilities that are the subject of the request in accordance with the procedures set forth in this Section. This section does 24 not apply to relocations under §6 7 of this Revocable Permit 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 Proiects. 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 Undergroundmg 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 Revocable Permit, either the Company or the City may cause an independent auditor to investigate and determine the correctness of the Undergroundmg 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 Undergroundmg 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 Undergroundmg 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 compames that have their facilities above ground to attempt to have all facilities undergrounded as part of the same project. When other utilities or compames are placing their facilities underground, to the extent the 25 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 Protects. 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, nghts -of -way and easements now owned or to be owned by the Company located within the terntonal boundaries of the City In the event of any such purchase, no value shall be ascribed or given to the rights granted under this Revocable Permit 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. 26 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. Rinht of First Refusal. If the Company, at any time during the term of this Revocable Permit , 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 decisions including but not limited to, statutes and rules concerning resource planning, renewable energy standards, and small power producers and co- generators, 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 27 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 Revocable Permit, the parties acknowledge that there are currently no judicial, statutory or regulatory directives requiring retail wheeling in Colorado D Company's Resource Planning. In connection with the Company's preparation of resource 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 Revocable Permit Not to Limit Citv's Rights. Nothing in this Revocable Permit 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 resource plans, and subsequent resource and renewable energy standards plans. G Net Metering. The Company shall provide net metering service to the City in accordance with § 40 -9 5 -118, C.R.S , or any subsequently enacted comparable statute,. 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 Revocable Permit. 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, 28 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. §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 29 §14 4 Company Action. Nothing in this Revocable Permit shall be deemed to require the Company to invest in technologies or to incur costs that its management has not elected to pursue. ARTICLE 15 TRANSFER OF REVOCABLE PERMIT §15 1 Consent of City Required for Transfer of Revocable Permit. The Company shall not transfer or assign any rights under this Revocable Permit 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 obhgations 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 obhgations of Company under this Revocable Permit 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 for any transfer or assignment of this Revocable Permit to any third -party by the Company §15.3 Transfer Fee. In order that the City may share in the value this Revocable Permit adds to the Company's operations, any transfer or assignment of rights granted under this Revocable Permit 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 $50,000 00 plus the product of $50,000 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 Revocable Permit until the date of the approval of the transfer by the City Except as otherwise required by law, such transfer fee shall not be 30 solely recovered from, imposed upon, charged to, added to or collected from Residents of the City §15 4 Taxes. Any transfer of this Revocable Permit 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 Revocable Permit 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 nght to require the removal of Company Facilities, except as provided in this Revocable Permit and under applicable law, unless otherwise ordered or permitted by a Court of competent junsdiction, and Company shall continue to provide Utility Service within the City until the Court 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 and the Company shall be entitled to collect from Residents and shall be obligated to pay the City, at the same times and m the same manner as provided in the Revocable Permit, an aggregate amount equal to the amount which the Company would have paid as a Revocable Permit 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 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 Revocable Permit or the exercise by the Company of the related nghts 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 hen 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 hen, shall permit the Company to assume the defense of such claim, demand, or hen 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 Revocable Permit 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 hen arises from any negligent or intentional act or failure to act of the City or any of its officers or 31 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, hability, 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 Revocable Permit 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 hmitations of habihty 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 Revocable Permit are performed and neither will take any legal action to secure modification of this Revocable Permit. 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; provided that the City retains all rights to intervene and participate in any proceedings involving Company's changes of rates, charges, terms and conditions imposed upon customers, and in all other proceedings as its interests may appear §18 2 Termination. A. Termination of Revocable Permit by City This Permit shall terminate upon the occurrence of any one of the following events (i) the expiration of its term specified in Section 2 3A, (ii) abandonment or non -use by Permittee for a period of three (3) consecutive months, (in) surrender or cancellation of the Permit in writing by Permittee, (iv) the granting of a franchise by vote of the electors of the City on November 1, 2011, as shown by the official canvass thereof; or (v) revocation or termination of this Permit by resolution of the City Council of City Permittee acknowledges and agrees that this Permit is temporary and subject to revocation or termination by resolution of the City Council of City, in its sole discretion, for any reason or no reason, at anytime, without liability to City, and without notice to or hearing by Permittee Permittee waives any and all right or claim to such notice, hearing, and liability of the City B Costs and Attorneys Fees. If the City initiates any legal action seeking damages for 32 any alleged violation of this Revocable Permit, 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 pnor to, dunng or subsequent to the legal action filed by the City ARTICLE 19 AMENDMENTS §19 1 Proposed Amendments At any time during this Revocable Permit the City, through its City Council, or the Company, may propose amendments to this Revocable Permit 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 Revocable Permit shall only become effective in accordance with the provisions of Section 19.2 §19.2 Effective Amendments. No alterations, amendments or modifications to this Revocable Permit shall be valid unless executed by an instrument in writing by the parties, adopted with the same formality used in adopting this Revocable Permit, to the extent required by law Neither this Revocable Permit, nor any term hereof, may be changed, modified or abandoned, m 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 subject to the Equal Employment Opportunity and Affirmative Action policies which it has adopted and published as 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 33 or any other characteristic protected by applicable law Company's Equal Employment Opportunity and Affirmative Action Policies are available in the Company's Policy Manual and employee handbooks. 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 Revocable Permit 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 Revocable Permit 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 Revocable Permit. §21 3 Third Parties. Nothing contained in this Revocable Permit 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 Revocable Permit. 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 San Isabel Electric Association Attention. Reg Rudolph, General Manager 893 E Enterprise Drive Pueblo West, CO 91007 34 and to General Counsel Sisto Mazza 314 West Main Street Trinidad, CO 81082 §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 Revocable Permit. 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 pnvilege. 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 Revocable Permit. 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 Revocable Permit 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 35 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 Revocable Permit, 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 Revocable Permit 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 Revocable Permit, shall be served upon the City as required by law or applicable rule. I would like to retain this section you wish to delete 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 consohdated 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 36 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 hens, 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 hen 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 Revocable Permit 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 Revocable Permit. §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 authonze the undersigned signatones 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 37 Commission to operate under the terms of this Revocable Permit. §21 10 Severabihty Should any one or more provisions of this Revocable Permit 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 Revocable Permit 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 Revocable Permit 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 Maieure. Neither the City nor the Company shall be in breach of this Revocable Permit if a failure to perform any of the duties under this Revocable Permit is due to Force Majeure, as defined in Section 1 10 §21 12 Earlier Permits and Authorizations Superseded. This Revocable Permit shall constitute the only revocable permit between the City and the Company for the furnishing of Utility Service, and it supersedes and cancels all former instruments and authorizations, written or oral, between the parties hereto concerning the subject matter hereof. §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 Revocable Permit. §21 14 Applicable Law. Colorado law shall apply to the construction and enforcement of this Revocable Permit. 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 Citv in Relation to Revocable Permit Agreement. The Company shall pay for expenses incurred by City in negotiating and concluding this Revocable Permit, including the publication of notices, publication of the resolution, and photocopying of documents. §21 16 Contract Obligation. This Revocable Permit constitutes a valid and binding contract between Company and the City In the event that the Revocable Permit fee, or any financial obligation of Company to the City specified in this Revocable Permit 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 Revocable Permit shall be deemed paid pursuant to contract between the City and Company and Company shall not attempt to recoup any Revocable Permit fee previously paid pursuant to the terms of this Revocable Permit. §21 17 Bargained For Exchange. All provisions in this Revocable Permit 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. 38 , IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the-day and first above written. CITY OF PUEBLO ATTEST City_ erk -- resident of City Council APPROVED AS TO FORM 74 \� City Attorney() S N ISABEL ELECTRIC ASSOCIATION By (1 r -Obi/a/o/ 2 a err SEAL Title iii a ( Meted rlegag 39