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ORDINANCE NO. 8360
AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE
TO SAN ISABEL ELECTRIC ASSOCIATION WITHIN ITS
CERTIFICATED AREA TO FURNISH AND SELL ELECTRICITY TO
THE CITY AND TO ALL RESIDENTS WITHIN THE CITY, AND
THE NON-EXCLUSIVE RIGHT TO ACQUIRE, PURCHASE,
CONSTRUCT, INSTALL, MAINTAIN, OPERATE AND EXTEND
INTO, WITHIN AND THROUGH SAID CITY ALL FACILITIES
REASONABLY NECESSARY FOR THE GENERATION,
PRODUCTION, SALE, PURCHASE, EXCHANGE, TRANSMISSION
AND DISTRIBUTION OF THE ELECTRIC UTILITY SERVICE
WITHIN AND THROUGH THE CITY, TOGETHER WITH THE
RIGHT TO MAKE REASONABLE USE OF THE STREETS AND
PUBLIC UTILITY EASEMENTS OF THE CITY AS HEREIN
DEFINED AS MAY BE NECESSARY, AND FIXING THE TERMS,
CONDITIONS, AND REQUIREMENTS APPLICABLE TO ALL OF
THE FOREGOING.
BE IT ORDAINED BY THE PEOPLE OF PUEBLO, COLORADO:
ARTICLE 1
DEFINITIONS
For the purpose of this Franchise, the following words and phrases shall have the meaning
given in this Article. When not inconsistent with context, words used in the present tense include
the future tense, words in the plural include the singular, and words in the singular include the
plural. The word "shall" is mandatory and "may" is permissive. Words not defined in this Article
shall be given their common and ordinary meaning.
§1.1 "City" refers to the City of Pueblo, a municipal corporation of the State of Colorado.
§1.2 "City Council" or "Council" refers to the legislative body of the City.
§1.3 "City Facilities" means all facilities owned by the City or by any enterprise of the City, and
all facilities used by the City, or any enterprise of the City, reasonably necessary to
provide any and all municipal services into, within and through the City, and all facilities
owned, leased, possessed or otherwise used by the City, or any enterprise of the City, in
connection with the provision of any services or functions which the City, or any enterprise of the
City, is now or may in the future be authorized to provide or to exercise under its charter or
applicable law.
§1.4 "Clean Energy" means energy produced from Renewable Energy Resources, eligible
energy sources, and by means of advanced technologies that cost-effectively capture and
sequester carbon emissions produced as a by-product of power generation. For purposes of
this definition, "cost" means all those costs as determined and authorized by the PUC.
§1.5 "Company" refers to 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 Franchise.
§1.6 "Company Facilities" refer to all facilities owned or legally and beneficially used by the
Company reasonably necessary to provide electric service into, within and through
Company’s Certificated Area of the City, including but not limited to plants, works, electric
systems, substations, transmission and distribution structures, lines, equipment, pipes,
mains, conduit, transformers, underground lines, meters, meter reading devices,
communication and data transfer equipment, control equipment, street lights, wire
conductors, cables and poles.
§1.7 Customer Service Center” means a business office conveniently located for residential and
business customer access which is:
(a) Open daily during normal business hours (currently 8:00 am to 4:00 pm), Monday
through Friday, except holidays (“ordinary business hours”);
(b) Staffed with company employees present onsite during ordinary business hours set
forth above;
(c) Available to provide general information and guidance and, if necessary, to schedule
an appointment, concerning:
1) contacting Company’s Call Centers for initiation, termination, cancellation and
resumption of customer electrical service, or make changes to existing service; and to answer
questions concerning billing statements,
2) addressing general customer service issues, energy efficiency, ways in which
customer bills may be minimized, budget billing programs designed to provide level payments
by customers over the course of a year, Company and third-party energy payment assistance
programs, weatherization programs and any other services which are available by Company to
customers to assist customers in paying their bills and minimizing their energy usage, and
general questions and complaints regarding all regulated services and activities of the
Company conducted pursuant to this Franchise or otherwise, or
3) redirecting customer specific issues to the appropriate Company personnel
responsible for assistance requested by the customer.
§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
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during any selected period with end-use services of such customers held constant.
§1.12 "Force Majeure" means the inability to undertake an obligation of this Franchise due to a
cause that could not be reasonably anticipated by a party or is beyond its reasonable control,
after exercise of best efforts to perform, including but not limited to fire, strike, war, riots,
acts of governmental authority, acts of God, floods, epidemics, quarantines, labor disputes,
unavailability or shortages of materials or equipment or failures or delays in delivery of
materials. Neither the City nor the Company shall be in breach of this Franchise if a failure
to perform any of the duties under this Franchise is due to a Force Majeure condition.
§1.13 "Gross Revenues" refers to those amounts of money, which the Company receives from the
sale of electricity within the City, as adjusted for refunds, net write-offs of uncollectible
accounts, corrections or regulatory adjustments. Regulatory adjustments include, but are
not limited to, credits, surcharges, refunds, and pro-forma adjustments including, by way of
example, but not limited to purchase capacity cost adjustments, fuel cost adjustments,
transmission cost adjustments or other adjustments) pursuant to federal or state regulation.
"Gross Receipts" shall include any revenues from the sale of electricity to the City. The
term “Gross Revenues” shall also include any amounts of money which the Company
receives from the retail wheeling of electricity in the City but shall not include any
amounts received for wholesale wheeling.
§1.14 "Other City Property" refers to the surface, the air space above the surface and the area
below the surface of any property owned or controlled by the City or hereafter held by the
City, that would not otherwise fall under the definition of "Streets." As to any Company
Facilities authorized on Other City Property, the terms of this Franchise shall control
except to the extent such Franchise terms are inconsistent with the terms of any
easements, rights-of-way, licenses or similar rights held by the Company on such Other
City Property.
§1.15 "Private Project" refers to any project which is not covered by the definition of "Public
Project."
§1.16 "Public Project" refers to (1) any public work or improvement within the City that is
wholly or beneficially owned by the City or an enterprise of the City, or which is being
acquired by the City or enterprise of the City under a lease-purchase agreement; or (2) any
public work or improvement within the City where fifty percent (50%) or more of the
funding is provided by any combination of the City, any enterprise of the City, the federal
government, the State of Colorado, or Pueblo County; or (3) a relocation project necessitated
or reasonably required by changes to, or realignment of, any road system or utility system
owned by the City or by any City enterprise.
§1.17 "Public Utilities Commission" or "PUC" or “Commission” refers to the Public Utilities
Commission of the State of Colorado or other state agency succeeding to the regulatory
powers of the Public Utilities Commission.
§1.18 "Public Utility Easement" refers to any easement over, under, or above public or private
property, lawfully acquired by or dedicated generally for public utility use and the
placement of public utility facilities, including but not limited to Company Facilities.
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Public Utility Easement shall not include any easement for the use of the Company that is
located within the Streets or in Other City Property or any easements, rights-of-way or
licenses or similar rights held by the Company on any other property located in the City
limits.
§1.19 "Renewable Energy Resources" means any eligible renewable energy resource as defined
in any federal or state law establishing a renewable portfolio standard, such as § 40-2-
124(1)(a), C.R.S., as the same shall be amended from time to time, or any similar statute
hereafter enacted.
§1.20 "Residents" refer to all persons, businesses, industries, governmental agencies, including
the City, and any other entity whatsoever, presently located or to be hereinafter located, in
whole or in part, within the territorial boundaries of the City.
§1.21 "Streets" or "City Streets" refers to the surface, the air space above the surface and the area
below the surface of any City dedicated streets, alleys, sidewalks, bridges, roads, viaducts,
lanes, public easements, and other public rights-of-way within the City. Streets shall not
include Public Utility Easements or park properties.
§1.22 (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 Franchise.
§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 FRANCHISE
§2.1 Grant of Franchise.
A. Grant. The City hereby grants to the Company, subject to all conditions,
limitations, terms, and provisions contained in this Franchise, the non-exclusive right to
make reasonable use of City Streets within Company’s certificated area of the City to do
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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 Franchise.
(2) Subject to the term, conditions, and provisions contained in this Franchise,
the City also hereby grants to the Company a non-exclusive right to construct, install,
maintain, and operate all facilities reasonably necessary to provide electricity within the
Certificated Area by reasonable non-exclusive use of said City Streets, as may be necessary
to carry out the terms of this Franchise.
(3) These rights and obligations shall extend to all areas of the City, as it is now
constituted and to additional areas as the City may increase in size by annexation or
otherwise, which are within the service territory of the Company, as established by the
Commission.
(4) To acquire, purchase, construct, install, locate, maintain, operate, and extend
into, within and through the City all Company Facilities reasonably necessary for the
generation, production, manufacture, sale, purchase, exchange, transmission, transportation
and distribution of electric utility service within and through the City.
B. Street Lighting Service. 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. Any such Street Lighting Agreement shall
be approved by the City Council by Resolution.
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 Franchise. The grant of this Franchise shall extend only to all areas of the
City as it is now or hereafter constituted which lie within the Certificated Area; however,
nothing contained in this Franchise shall be construed to authorize the Company to engage
in activities other than the provision of electric utility service or in areas not expressly
authorized by the Commission.
B. Subject to City Usage. The authorization granted herein is subject to the City's prior
and paramount right to use of the Streets, public easements and other public places for
public or municipal purposes, and is also subject to the City's exercise of its lawful police
power, including, but not limited to, planning, zoning, subdivision, permit and building code
requirements.
C. Prior Property Interests Not Revoked. This grant is not intended to revoke any
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prior license, easement, or right to use real property and such licenses, easements or
rights of use are hereby affirmed. Such rights shall, however, be governed by the terms of
this Franchise.
D. Franchise Not Exclusive. The authorization to use and occupy said Streets, Public
Utility Easements, and other public places for the purposes set forth herein is not, and shall
not be deemed to be, an exclusive Franchise, and the City reserves the right to make or grant
a similar authorization to such use of Streets, Public Utility Easements and other public
places to any other person, firm or corporation.
E. Rights Retained. The City retains the right:
(1) To terminate the Franchise as provided in Article 18 for substantial misuse,
substantial non-use or material failure of Company to substantially comply with the
provisions of this Franchise;
(2) To use, control and regulate the use of Streets, Public Utility Easements and
other public places and the space above and beneath them, including, without limitation the
right to perform work on its Streets, roadways, rights of way, Public Utility Easements and
public places, by constructing, altering, renewing, paving, widening, grading, blasting or
excavating; the right to build and install systems, facilities and projects of any nature; and
the right to require relocation of Company’s facilities in accordance with the terms of this
Franchise;
(3) To require proper and adequate extension of plant, facilities and service
consistent with the police powers of the City and the Public Utilities Laws;
(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 nondiscriminatory service to residences in
accordance with the terms of this Franchise throughout the entire period hereof, consistent
with the police powers of the City and the Public Utilities Laws, 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 Franchise does not confer rights upon Company
other than as expressly provided herein. No privilege or power of eminent domain is
bestowed by this grant. No right or privilege passes, or is conferred, by implication under
this Franchise Agreement. Nothing herein precludes Company from exercising any
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statutory powers of eminent domain provided under federal or state law. Nothing herein
grants any rights to Company in or upon Other City Property.
G. No Warranty. The grant of the Franchise is not a warranty of title or any other
property interest in any Street, Public Utility Easement, or other public place.
H. Waiver. Both parties waive as of the effective date of this Franchise Agreement,
any claim or defense that any provision of this Franchise Agreement, as it exists on the
effective date of this Franchise Agreement, is unenforceable or otherwise invalid or void.
Neither party waives the right to challenge the validity of any applicable law.
§2.3 Effective Date and Term.
Term. The term of the Franchise granted by this Ordinance shall be for nineteen
A.
(19) years. This Franchise shall take effect at 12:00 am on November 1, 2011, and shall
supersede any prior Revocable Permit granted to the Company by the City, and all prior
Revocable Permits issued to Company by City shall be deemed revoked and cancelled.
This Franchise shall terminate at 11:59.99 pm on October 31, 2030, unless extended by
mutual consent.
B. Execution. The Company shall execute this Franchise and deliver five (5) executed
originals to the City Manager prior to final approval by the City Council of the ordinance
referring the grant of this Franchise to the qualifying taxpaying electors of the City at a duly
called election. The Franchise shall only become effective upon the majority vote of the
qualifying taxpaying electors voting thereon. The question of its being granted shall be
submitted to each vote by ordinance, upon deposit with the Director of Finance of the
expense (to be determined by the Director of Finance) of such submission by the Company
for the Franchise. Within one week after the effective date of the ordinance approving this
Franchise, the President of the City Council and other necessary or proper officials of the
City are hereby authorized and directed to sign this Franchise in the name of the City, and the
City Clerk is hereby authorized and directed to attest to the same under seal of the City, and
to do all things necessary for the delivery of this Franchise at a duly called election.
C. Acceptance and Obligations. The grant of the Franchise shall not become effective
unless and until Company has (a) filed an unconditional acceptance of the Franchise grant in
the form appended hereto as Exhibit "A"; and (b) made all payments, posted all securities
and guarantees, and supplied all information that it is required to supply prior to or upon the
effective date of the Franchise. Company shall file with the City Clerk its written
unconditional acceptance of this Franchise and all of its terms and provisions at least ten
(10) days prior to the special municipal Franchise election. Company shall file with the City
Clerk its written ratification thereof, in the form appended hereto as Exhibit "B" within ten
(10) days after the approval of this ordinance by the qualified electors of the City at said
special municipal Franchise election. If Company shall fail to timely file its written
acceptance or ratification as herein provided, this Franchise shall be and become null and
void.
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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 Franchise, and
Company shall comply therewith. Unless pre-empted by state or federal law, the City
expressly reserves, and the Company expressly acknowledges the City's right to adopt,
from time to time, in addition to the provisions contained herein, such laws, charter
provisions, ordinances, rules and regulations, as it may deem necessary in the lawful
exercise of its governmental powers, which may include the imposition of non-
discriminatory fees payable by the Company and other businesses to defray costs
incurred by the City in supervising and regulating the Company and other businesses.
The City acknowledges the Company’s right to oppose the adoption of such laws, charter
provisions, ordinances, rules and regulations. If the City considers making any substantive
changes in its local codes or regulations that in the City's reasonable opinion will substantially
and materially impact the Company's operations in the City's Streets, the City shall make a
good faith effort to advise the Company of such consideration; provided, however, that lack
of notice shall not be justification for the Company's non-compliance with any applicable
local requirements.
§3.2 Regulation of Streets or Other City Property. The Company expressly acknowledges the
City's right to enforce all ordinances, resolutions and regulations concerning the Company's
access to or use of the Streets, including requirements for permits.
§3.3 Use of Streets Limited. Streets within the City shall not be occupied by or used by
Company except under provisions of this Franchise and as otherwise available for use by the
general public. Company shall not use City Streets to store or park company vehicles when
such vehicles are not in active use, but shall store same on off-street parking areas provided
or leased by Company for such purpose.
§3.4 Use of Utility Poles. This Franchise shall not be deemed to expressly or impliedly
authorize the Company to utilize poles or conduits owned by any public or private utility
which are located within the Streets, without the express consent of the utility, including the
City.
ARTICLE 4
FRANCHISE FEE
§4.1 Franchise Fee.
Fee. In partial consideration for the Franchise, which provides for the Company's use
A.
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of City Streets, which are valuable public properties acquired and maintained by the City at
great expense to its Residents, and in recognition that the grant to the Company of the use
of City Streets is a valuable right, the Company shall collect from its customers and shall pay
to the City a sum equal to three percent (3%) of all Gross Revenue. To the extent required
or provided for by law, the Company shall collect this fee from a surcharge upon City
residents, including businesses, who are customers of the Company. Included within
“Gross Revenue” shall be all amounts paid to the Company by the City or any of its
departments, including amounts paid by the Board of Water Works of Pueblo, Colorado
for its meters located within the City.
B. Obligation in Lieu of Fee. In the event that the Franchise fee specified herein is
declared void for any reason by a court of competent jurisdiction, unless prohibited by law,
the Company shall be obligated to pay the City, at the same times and in the same manner as
provided in the Franchise, an aggregate amount equal to the amount which the Company would
have paid as a Franchise fee as partial consideration for use of the City Streets. To the
extent required by law, the Company shall collect the amounts agreed upon through a
surcharge upon Utility Service provided to City Residents, or at the option of the City the
City shall have the right to impose any lawful occupation fees or similar tax reasonably
equivalent on an annual basis to said Franchise fee.
C. Changes in Utility Service Industries. The City and the Company recognize that
utility service industries are the subject of restructuring initiatives by legislative and
regulatory authorities, and are also experiencing other changes as a result of mergers,
acquisitions, and reorganizations. Some of such initiatives and changes have or may
have an adverse impact upon the Franchise fee revenues provided for herein. In recognition
of the length of the term of this Franchise, the Company agrees that in the event any such
initiatives or changes adversely impact the Franchise fee revenues, to the extent permitted by
law, upon receiving a written request from the City, the Company will cooperate with and
assist the City in modifying this Franchise to provide for an amount in Franchise fees or some
other form of compensation that may be assessed to the Company’s customers in the City and
that will provide the same level of funding as the amount of Franchise fees that would have
been paid to the City prior to such initiatives and changes.
§4.2 Remittance of Franchise Fee.
A. Remittance Schedule. Franchise fee revenues shall be remitted by the Company to
the City as directed by the City in monthly installments not later than thirty (30) days
following the close of each month. Upon written request of the City, the Company shall
provide to the City at the time of remittance of each installment of the Franchise Fee a
copy of all calculations and supporting documentation (sometimes referred to as “work
papers”) used in calculating the installment then paid. On or before November 1 of each
year during the term of this Franchise, the Company shall provide the City with its
estimate of the total Franchise Fee which it estimates may be paid to the City for the next
succeeding calendar year. All Franchise fee payments shall be made by check payable to
the City, or upon mutual agreement, by electronic funds transfer, made to a City bank
account identified by the Director of Finance of the City of Pueblo.
B. Correction of Franchise Fee Payments. In the event that either the City or the
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Company discovers that there has been an error in the calculation of the Franchise fee
payment to the City, it shall provide written notice to the other party of the error. If the party
receiving the written notice of error does not agree with the written notice of error, that party
may challenge the written notice of error pursuant to Section 4.2.E of this Franchise;
otherwise, the error shall be corrected in the next monthly payment. However, if the error
results in an overpayment of the Franchise fee to the City, and said overpayment is in
excess of Ten Thousand Dollars ($10,000.00), credit for the overpayment shall be spread
over the same period the error was undiscovered. All Franchise fee underpayments shall be
corrected in the next monthly payment, together with interest computed at the rate set by the
Company for customer security deposits held by the Company, from the date when due until
the date paid. In no event shall either party be required to fund or refund any overpayment or
underpayment made as a result of a Company error which occurred more than three (3)
years prior to the discovery of the Company error.
C. Change of Franchise Fee. The City Council during the year 2013 and every third
year thereafter during the term of this Franchise, upon giving sixty (60) days notice to the
Company of its intention to do so, may reconsider the consideration to be paid by the
Company under this article. If the City Council decides that the Franchise fee should be
increased or decreased, it shall provide for such increase or decrease by ordinance. The
Company agrees to pay whatever Franchise fee is so established by the City in this section;
provided, however, no increase shall exceed 1% of the annual Gross Revenues, and further
provided, that the cumulative aggregate increases shall not result in the Franchise fee being
greater than 5% of the annual Gross Revenues. The City shall only raise the Franchise fee
on Company’s customers if it also raises the Franchise fee of any and all other electric
Franchisees granted an electric Franchise to the same level imposed on Company and its
customers. The City will decrease the Franchise fee imposed on Company and its
customers to the level imposed on the other electric Franchisees if the City decreases the
Franchise fee of any other electric Franchisee.
D. Reconciliation and Audit of Franchise Fee Payments.
(1) The City shall endeavor to keep the Company advised of all annexations
into the City so that the Company may timely change its billing to all customer meters in
the annexed area to change the associated taxes and to charge the Franchise fee.
Additionally, the City shall assist the Company, as requested, in identifying any customer
meters for which the City has agreed to waive or reduce sales taxes or the Franchise fee
for any period of time.
(2) (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
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costs of the audit.
E. Fee Disputes. Either party may challenge any written notification of error as
provided for in Section 4.2.B of this Franchise by filing a written notice to the other party
within thirty (30) days of receipt of the written notification of error. The written notice
shall contain a summary of the facts and reasons for the party's notice. The parties shall
make good faith efforts to resolve any such notice of error before initiating any formal legal
proceedings for the resolution of such error. The prevailing party in any formal legal
proceeding shall be awarded recovery of all of its attorney’s fees and costs incurred in
pursuing legal proceedings.
F. Report Regarding Pole Attachments. Upon written request by the City, but not
more than once per year, the Company shall supply the City with reports, in such formats
and providing such details as reasonably requested by the City, of all persons or entities that
have Company-permitted pole attachments, or which use available space in company
conduits, on Company Facilities within the City, and the names and addresses of each such
person or entity.
§4.3 Franchise Fee Payment Not in Lieu of Permit or Other Fees. So long as the Company
performs its obligations under this Franchise Agreement, including payment of the
Franchise fee, the Company will be exempt from the payment of any license fees or license
charges to the City, but payment of the Franchise fee does not exempt the Company from
any other lawful tax or fee imposed generally upon persons doing business within the City,
including any sales or use tax, fee for a street closure permit, pavement impact fee,
excavation permit, a street cut permit, or other lawful permits hereafter required by the City,
except that the Franchise fee provided for herein shall be in lieu of any occupation or
similar tax for the use of City Streets. If for any reason the Company does not make
payment of the Franchise fee, the City may institute such license fee, license charge,
occupation tax or other, similar tax for use of City Streets, as well as exercising other
remedies available under the terms of this Franchise.
ARTICLE 5
ADMINISTRATION OF FRANCHISE
§5.1 City Designee. The City Manager shall designate in writing to the Company an official
having full power and authority to administer the Franchise. The City may also designate
one or more City representatives to act as the primary liaison with the Company as to
particular matters addressed by this Franchise and shall provide the Company with the
name and telephone numbers of said City representatives. The City may change these
designations by providing written notice to the Company. The City's designee shall have
the right, at all reasonable times, to inspect any Company Facilities in City Streets.
§5.2 Company Designee. The Company shall designate a representative to act as the primary
liaison with the City and shall provide the City with the name, address, and telephone
number for the Company's representative under this Franchise. The Company may
change its designation by providing written notice to the City. The City shall use this liaison
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to communicate with the Company regarding Utility Service and related service needs
for City facilities.
§5.3 Coordination of Work.
The Company agrees to meet with the City's designee, upon request, at a
A.
mutually agreeable time for the purpose of reviewing, implementing, or modifying
mutually beneficial procedures for the efficient processing of Company bills, invoices and
other requests for payment.
B. The Company and City agree to mutually coordinate the Company’s activities in
City Streets. The City and the Company will meet annually, in the month of October of
each calendar year, at a time and place mutually agreed, to exchange their respective
short-term and long-term forecasts and/or work plans for construction and other similar
work which may affect City Streets. The City and Company shall hold such meetings as
either deems necessary to exchange additional information with a view towards
coordinating their respective activities in those areas where such coordination mayprove
beneficial and so that the City will be assured that all provisions of this Franchise, building
and zoning codes, and air and water pollution regulations are complied with, and that
aesthetic and other relevant planning principles have been given due consideration.
ARTICLE 6
SUPPLY, CONSTRUCTION, AND DESIGN
§6.1 Purpose. The Company acknowledges the critical nature of the municipal services
performed or provided by the City to the Residents which require the Company to provide
prompt and reliable Utility Service and the performance of related services for City
facilities. The City and the Company wish to provide for certain terms and conditions
under which the Company will provide Utility Service and perform related services for the
City in order to facilitate and enhance the operation of City Facilities. They also wish to
provide for other processes and procedures related to the provision of Utility Service to the City.
§6.2 Supply. Pursuant to its duties and obligations under Colorado statutes, 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.
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B. Restoration. In the event the Company's electric system, or any part thereof, is
partially or wholly destroyed or incapacitated, the Company shall use due diligence to
restore such systems to satisfactory service within the shortest practicable time, or provide a
reasonable alternative to such system if the Company elects not to restore such system.
§6.5 Obligations Regarding Company Facilities.
A. Company Facilities. All Company Facilities within City Streets shall be
maintained in good repair and condition.
B. Company Work Within the City. All work within City Streets performed or
caused to be performed by the Company shall be done:
(1) in a good and workmanlike manner;
(2) in accordance with all applicable laws, ordinances, and regulations; and,
(3) with all applicable permitting and other fees and charges paid in full.
Additionally, consistent with the nature of the project and the conditions in effect during
the project, the Company will endeavor to complete such work in a timely and expeditious
manner and in a manner which minimizes inconvenience to the public.
C. No Interference with City Facilities. Company Facilities shall not interfere with
any City Facilities, facilities of City enterprises, special districts or other municipal or
quasi-municipal uses of City Streets and rights of way, including, but not limited to:
water facilities, sanitary or storm sewer facilities, telecommunication facilities, other
communication facilities, traffic signal lights, street lights or other City or authorized
public uses of the Streets; and if and where Company Facilities may be authorized upon
Other City Property, Company Facilities shall not interfere with City’s present and future
use of Other City Property. Company shall endeavor to install and maintain Company
Facilities in City Streets (and, if and where authorized, in Other City Property) so as to
minimize interference with other property, trees, and other improvements and natural
features in and adjoining the Streets, provided, however, that Company shall not be
prevented from engaging in such lawful activities as may be required to maintain the
safety and reliability of Company’s Facilities. Company Facilities shall be located and
installed and maintained in conformity with the National Electrical Safety Code.
D. Permit and Inspection. The installation, maintenance, renovation, and
replacement of any Company Facilities in the City Streets and Public Utility Easements
(and, if and where authorized, in Other City Property) by or on behalf of the Company
shall be subject to applicable permit, inspection and approval requirements of the City,
payment of all required fees, and posting of any required securities (unless waived).
Such permit, inspection and approval requirements may include, but shall not be limited to
the following matters: location of Company Facilities within the City Streets and Public
Utility Easements (and, if authorized, in Other City Property), cutting and trimming of trees
and shrubs (such as the requirement to use licensed tree trimmers), and disturbance of
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pavement, sidewalks, and surfaces of City Streets or Other City Property. The City shall
not be arbitrary or capricious in permitting, inspection or approval processes. The
Company agrees to cooperate with the City in conducting inspections and shall promptly
perform any remedial action lawfully and reasonably required by the City pursuant to any
such inspection. Except in emergency circumstances, prior to construction of any new
generation plant, substations, transmission facilities, buildings, or similar structures
within the City, the Company shall furnish to the City the plans for such structures.
E. Compliance. The Company shall comply with the requirements of all municipal
laws, ordinances, regulations, permits, and standards, including but not limited to
requirements of all building and zoning codes, and requirements regarding curb and
pavement cuts, excavating, digging, and other construction activities. The Company
shall, by contract, require that its contractors also comply with the requirements of all
municipal laws, ordinances, regulations, permits, and standards, including but not
limited to requirements of all building and zoning codes, and requirements regarding
curb and pavement cuts, excavating, digging, and other construction activities and hold
the necessary licenses and permits required by law.
F. Increase in Voltage. The Company shall reimburse the City for the cost of
upgrading the electrical system or facility of any City building or facility that uses Utility
Service where such upgrading is caused or occasioned by the Company's decision to
increase the voltage of delivered electrical energy.
G. As-Built Drawings. Upon reasonable written request of the City designee, the
Company shall provide, within 14 days of the request, as-built drawings of any Company
Facility installed within the City Streets or contiguous to the City Streets. As used in this
section, as-built drawings refers to the facility drawings as maintained in the Company's
geographical information system or any equivalent electronic or paper-based system.
The Company shall not be required to create drawings that do not exist at the time of the
request.
H. No Third Party Rights. Nothing in this Article 6 shall be construed to provide
rights to third parties nor shall it excuse any third-party from liability caused by negligent or
intentional action.
§6.6 Excavation and Construction Related Damages. The Company shall remedy, or caused
to be remedied, within a reasonable time, all damage caused by the Company or its
contractors to private property located adjacent to Streets or dedicated easements caused
by the Company’s excavation or construction activities in the City Streets or dedicated
easements.
§6.7 Restoration of City Streets.
A. When the Company does any work in or affecting the City Streets or Other City
Property (if and where authorized), the Company shall, upon completion, without cost to
the City, promptly remove any obstructions therefrom and restore such City Streets or Other
City Property to a condition that meets applicable written City standards. If weather or
other conditions do not permit the complete restoration required by this Section, the
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Company may, with the approval of the City, temporarily restore the affected City Streets or
Other City Property, provided that such temporary restoration is without cost to the City and
provided further that the Company promptly undertakes and completes the required
permanent restoration when the weather or other conditions no longer prevent such
permanent restoration. Upon the request of the City, the Company shall restore the Streets or
Other City Property to a better condition than existed before the work was undertaken,
provided that the City shall be responsible for any additional costs of such restoration. If the
Company fails to promptly restore the City Streets or Other City Property as required by
this Section, and if in the reasonable discretion of the City immediate action is required for
the protection of public health and safety, the City may, upon giving three (3) days' written
notice to the Company, restore such City Streets or Other City Property or remove the
obstruction therefrom; provided however, that the City’s actions shall not unreasonably
interfere with Company Facilities. The Company shall be responsible for the actual cost
incurred by the City to restore such City Streets or Other City Property or to remove any
obstructions therefrom. In the course of its restoration of City Streets or Other City
Property under this Section, the City shall not perform work on Company facilities unless
specifically authorized by the Company in writing on a project by project basis and subject
to the terms and conditions agreed to in such authorization.
B. To the extent reasonably practicable, the Company will endeavor to accommodate
the reasonable desires of any property owner respecting location within easements or rights-
of-way traversing private land of above ground boxes or appurtenances constituting a part of
the Company Facilities. Additionally, to the extent reasonably practicable, the Company
will continue its existing practice of attempting to contact the occupants of all private
property in advance of entering such property for the purpose of construction or initial
installation of Company Facilities within easements or rights-of-way traversing such
property. If any easements or rights-of-way traversing private land are disturbed by
Company’s activities, Company will substantially restore such easements and rights-of-way
consistent with good utility practice and as required by any terms of such easements and
rights-of-way. The Company may, but shall not be required, to reasonably restore or replace
landscaping, fencing or other improvements located in such easements and rights-of-way
except as otherwise provided by law or the terms of its easements and rights-of-way.
§6.8 Relocation of Company Facilities at Public Projects.
A. Relocation Obligation. The Company shall, without cost to the City,
temporarily or permanently remove, relocate, change or alter the position of any Company
Facility in City Streets or in Other City Property whenever the City shall determine that such
removal, relocation, change or alteration is necessary for the completion of any Public
Project. For all such relocations, the Company and the City agree to confer on the location
and relocation of the Company Facilities in the City Streets or Other City Property in order to
achieve relocation in the manner which is most efficient and cost-effective for City.
Notwithstanding the foregoing, once the Company has relocated any Company Facility at the
City's direction, if the City requests that the same Company Facility be relocated within
two years, the subsequent relocation shall not be at the Company's expense. Following
relocation from the public right-or-way or city streets, all property shall be restored to its
former condition or better by the Company at its expense. Company will not be required to
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relocate its equipment or facilities from private easements without full payment of the
relocation costs to the Company.
City shall consider reasonable alternatives in designing its public works projects and
exercising its authority under this section so as not to arbitrarily cause Company
unreasonable additional expense. If alternative public right-of-way space if available, City
shall also provide a reasonable alternative location for Company’s facilities. City shall give
Company written notice of an order or request to vacate a public right-of-way; provided,
however, that its receipt of such notice shall not deprive Company of its right to operate
and maintain its existing facilities in such public right-of way until it (a) if applicable,
receives the reasonable cost of relocating the same and (b) obtains a reasonable public
right-of-way, dedicated utility easement, or private easement alternative location for such
facilities.
B. Private Project. The Company shall not be responsible for the expenses of any
relocation required by Private Projects, and the Company has the right to require the payment
of estimated relocation expenses from the affected private party before undertaking such
relocation. To the extent the City orders or requests Company to relocate its facilities or
equipment for the benefit of a commercial or Private Project at the request of a commercial
or private developer, another non-public entity, then Company shall receive payment for
the cost of such relocation as a precondition to relocating its facilities or equipment.
C. Relocation Performance. The relocations set forth in Section 6.7.A of this
Franchise shall be completed within a reasonable time. Subject to delays caused by Force
Majeure or by City revisions to supporting documents, in the case of relocations with
an estimated cost of $250,000 or less, the Company shall use commercially reasonable
efforts to complete such relocations within ninety (90) days , and in the case of relocations
with an estimated cost of greater than $250,000, the Company shall use commercially
reasonable efforts to complete such relocations within one hundred-twenty (120) days, from
the later of the date on which the Director requests, in writing, that the relocation
commence, or the date when the Company is provided the Supporting Documentation,
except as otherwise provided herein.
D. Process for Preplanned and Priority Relocations. At the request of the City in
connection with a particular major preplanned relocation, priority relocations or
relocations involving unusual circumstances the Company and the City may agree in
writing upon procedures to coordinate such relocations. Such procedures, once
agreed upon, shall not be modified by either party without the written consent of the other
party.
E. City Revision of Supporting Documentation. Any revision by the City of
Supporting Documentation provided to the Company that causes the Company to
substantially redesign and/or change its plans regarding facility relocation shall be deemed
good cause for a reasonable extension of time to complete the relocation under the
Franchise.
F. Completion. Each such relocation shall be complete only when the Company
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actually relocates the Company Facilities, restores the relocation site in accordance with
Section 6.7A of this Franchise or as otherwise agreed with the City, and removes from the
site or properly abandons on-site all unused facilities, equipment, material and other
impediments.
G. Utility Easements For Which Relocation Obligation Does Not Apply. The
relocation obligation set forth in this Section shall only apply to Company Facilities
located in City Streets or in Other City Property. The obligation shall not apply to
Company Facilities located on property owned by the Company in fee, or to Company
Facilities located in privately-owned easements or in Public Utility Easements. The
provisions of this Section 6.7 shall also not apply to Company Facilities located in Other City
Property within any easements, rights-of-way, licenses or similar rights held by Company
and the Company’s rights and obligations as to such Facilities shall be governed by the terms
of the instruments creating such rights.
H. Coordination. A representative of the Company shall, if notified in advance and when
possible, attend monthly rights of way coordination meetings of the City, for any pending
Public Project involving relocation of Company Facilities. Such meetings shall be for the
purpose of minimizing conflicts where possible and to facilitate coordination with any
timetable established by the City for any Public Project.
I. Proposed Alternatives or Modifications. Upon receipt of written notice of a
required relocation, the Company may propose an alternative to or modification of the
Public Project requiring the relocation in an effort to mitigate or avoid the impact of the
required relocation of Company Facilities, particularly transmission facilities (“mitigation
proposal”). The City shall perform a reconnaissance review of the mitigation proposal at
no charge to the Company. As a result of the reconnaissance review of the mitigation
proposal, the City shall, in good faith, estimate its cost to implement the mitigation
proposal and shall communicate that estimate in writing to the Company, so that the
Company can make an informed decision as to whether it will request that the mitigation
proposal be implemented. The acceptance of the proposed alternative or modification shall
be at the sole discretion of the City, provided, however, that such acceptance shall not be
unreasonably withheld. In the event the City accepts the proposed alternative or
modification, the Company agrees to promptly compensate the City for all additional
costs, expenses or delay that the City reasonably determines will result from the
implementation of the proposed alternative.
§6.9 Service to New Areas. If the territorial boundaries of the City are expanded during the
term of this Franchise, the Company shall, to the extent permitted by law, be authorized to
extend service to Residents in the expanded area at the earliest practicable time. Service to
the expanded area shall be in accordance with the terms of the Company's tariffs and this
Franchise, including the payment of Franchise fees.
§6.10 City Not Required to Advance Funds. Upon receipt of the City's authorization for billing
and construction, the Company shall extend Company Facilities to provide Utility Service
to the City as a customer, without requiring the City to advance funds prior to construction.
The City shall pay for the extension of Company Facilities once completed in accordance
17
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.
§6.12 Movement of Buildings. Company shall, upon request by any person holding a building
moving permit, license or other approval issued by the City or State, temporarily remove,
raise or lower its wires to permit the moving of buildings. The expense of such removal,
raising or lowering shall be paid by the person requesting same, and Company shall be
authorized to require such payment in advance. Company shall be given not less than thirty
(30) business day’s oral or written notice to arrange for such temporary wire changes. If the
request to raise or lower wires to permit the moving of buildings is made by the City for a
municipal purpose, the removal, raising or lowering shall be without cost to the CityIf a
.
line is de-energized or temporarily relocated at the request of a party other than the City, the
Company may seek reimbursement from the party seeking the relocation.
ARTICLE 7
RELIABILITY
§7.1 Reliability. The Company shall operate and maintain Company Facilities efficiently and
economically and in accordance with the all applicable Federal and State standards,
including standards promulgated by the North American Energy Reliability Corporation
(“NERC”) and of the Commission and consistent with the national utility standards for
the provision of adequate, safe, and reliable Utility Service.
§7.2 Reliability Reports. The Company shall provide the City with a copy of any and all
reports provided to any State or Federal agency regarding the reliability of Company
Facilities and Utility Service in Colorado contemporaneously with the filing of any such
report with the agency. Nothing herein shall require Company to prepare reports not
otherwise in existence or otherwise required by federal or state laws.
ARTICLE 8
COMPANY PERFORMANCE OBLIGATIONS
§8.1 Service To City Facilities. The conditions under which the Company shall install new or
modified Utility Service to City Facilities shall be governed by this Franchise, 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
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regarding such City Projects, (iii) action or inaction of the City, (iv) for other good cause
shown, or (v) as otherwise agreed to by the parties.
B. Completion/Restoration. Each such new or modified Utility Service shall be complete
only when the Company actually provides the service installation or modification, restores the
project site in accordance with the terms of the Franchise or as otherwise agreed with the
City and removes from the site or properly abandons on site any unused facilities,
equipment, material and other impediments.
§8.2 Adjustments to Company Facilities to Accommodate Street Maintenance, Repair and
Paving Operations. The Company shall perform adjustments to Company Facilities,
including manholes and other appurtenances in Streets and Other City Property, to
accommodate City street maintenance, repair and paving operations (“City Operations”)
at no cost to the City. In providing such adjustments to Company Facilities, the
Company agrees to perform as follows:
A. Performance. The Company shall complete each requested adjustment within
a reasonable time, subject to delays due to (i) Force Majeure or other cause that could not
be reasonably anticipated by the Company, (ii) City revision of Supporting Documentation
that causes the Company to substantially redesign and/or change its plans regarding such City
Projects, (iii) action or inaction of the City, (iv) for other good cause shown, or (v) as
otherwise agreed to by the parties.
B. Completion/Restoration. Each such adjustment shall be complete only when the
Company actually adjusts the Company Facility to accommodate the City Operations in
accordance with City instructions and, if required, readjusts, following City paving
operations.
C. Coordination. As requested by the City or the Company, representatives of the
City and the Company shall meet regarding anticipated City Operations which will
require such adjustments to Company Facilities in streets or Other City Property. Such
meetings shall be for the purpose of coordinating and facilitating performance under this
Section.
§8.3 Third Party Damage Recovery.
A. Damage to Company Interests. If any third-party damages any Company Facilities
that the Company is responsible to repair or replace, to the extent permitted by law, upon
request for information by Company to City, the City will provide to the Company within a
reasonable time all pertinent information within its possession regarding the incident and
the damage, including the identity of the responsible third-party.
B. Damage to City Interests. If any third-party damages any Company Facilities for
which the City is obligated to reimburse the Company for the cost of the repair or
replacement of the damaged facility, to the extent permitted by law the Company will notify
the City of any such incident and will provide to the City within a reasonable time all
pertinent information within its possession regarding the incident and the damage, including
the identity of the responsible third-party.
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C. Meeting. The Company and the City agree to meet periodically, upon written
request of either party, for the purpose of developing, implementing, reviewing, improving
and/or modifying mutually beneficial procedures and methods for the efficient gathering and
transmittal of information useful in recovery efforts against third parties for damaging
Company Facilities.
ARTICLE 9
BILLING AND PAYMENT
§9.1 Billing for Utility Services.
Unless otherwise provided in its tariffs, or the laws of Colorado, the Company
A.
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.
Billings for service rendered during the preceding month, except for billings
B.
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.
The Company shall provide all billings and any underlying support documentation
C.
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.
Upon request of the City, the Company will meet with the City for the purpose of
D.
developing, implementing, reviewing, and for modifying mutually beneficial and
acceptable billing procedures, methods, and formats which may include, without
limitation, electronic billing and upgrades or beneficial alternatives to the Company’s
current most advanced billing technology, for the efficient and cost effective rendering and
processing of such billings submitted by the Company to the City. No such discussions
will require Company to implement a billing system other than one used for all of its
customers in Colorado.
§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
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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.
ARTICLE 10
USE OF COMPANY FACILITIES
§10.1 City Use of Company Facilities.
. Emergency Use: In the event of an Emergency, the City shall be permitted by
A
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.
. Non-Emergency Use: The City shall be permitted to make reasonable attachments
B
of its communication systems to the Company’s electrical distribution or transmission
system, including underground facilities, at the City’s expense, provided such use does not
unreasonably interfere with the use of such systems for electrical energy or create an
unreasonable hazard. The City shall complete the pole attachment process outlined by the
Company. This process requires that the City shall sign a Pole Attachment Agreement and
Permit that outlines the NESC requirements for making attachments to company- owned
facilities. In accordance with this Franchise, Company will not require a rental fee or other
charge for the City to reasonably attach communication systems to the Company’s electric
distribution system. The City shall communicate its intent to attach communication
systems in writing 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.
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Nothing under this Section 10.1(B) shall confer any right upon a third party to use
Company Facilities.
§10.2 Third Party Use of Company Facilities. If requested in writing by the City, the Company
shall allow other companies who hold Franchises, or otherwise have obtained consent from
the City to use the Streets, to utilize Company Facilities for the placement of their facilities
upon approval by the Company and agreement upon reasonable terms and conditions
including payment of fees established by the Company. Company reserves the right to
refuse to allow such attachments if the Company reasonably determines that such
attachments will interfere with Company safety requirements or otherwise determines such
attachments are not reasonable or prudent. The Company’s consent to allow such use of
Company Facilities shall not be unreasonably withheld. No such use shall be permitted if
it would violate terms of the Telecommunications Act of 1996, (Pub. Law. No. 104-104,
110 Stat. 56).
§10.3 City Use of Company Transmission Rights-of-Way. To the extent Company is authorized
to do so under the terms of its rights-of-way, the Company shall permit the City use of
rights-of-way which Company may now, or in the future, own or have an interest in within
the City for the purposes set forth in and pursuant to the provisions of the Colorado Park and
Open Space Act of 1984, C.R.S. Section 29-7-.5-101, et seq., provided that the Company
shall not be required to make such an offer in any circumstances where such offer would
materially interfere with the Company’s use of rights-of-way. If the Company’s offer of use
is accepted by the City, then any improvements deemed appropriate by the City and
consistent with the purpose of the Park and Open Space Act of 1984 shall be made by the
City at the City’s expense.
§10.4 Emergencies. Upon written request, the Company shall assist and fully cooperate with
the City in developing an emergency management plan. In the case of any Emergency or
disaster, the Company shall, upon verbal request of the City, make available Company
Facilities for emergency use during the Emergency or the disaster period. Such use of
Company Facilities shall be of a limited duration and will only be allowed if the use does
not interfere with the Company’s own use of Company Facilities. In the case of any
Emergency or disaster, the City shall, upon verbal request of the Company, make
available City facilities for emergency use during the Emergency or the disaster period.
Such use of City facilities shall be of a limited duration and will only be allowed if the
use does not interfere with the City’s own use of City facilities. Nothing in this section
shall be construed to prevent or limit the City’s power of eminent domain as provided by
law.
ARTICLE 11
UNDERGROUNDING OF OVERHEAD FACILITIES
§11.1 Underground Policy. The official public policy of the City is that all new and relocated
utility lines be placed underground.
§11.2 Underground Electrical Lines. The Company shall, upon payment to the Company of the
charges provided in its tariffs or under any agreement entered into between the Company
22
and any third party, place all newly constructed electrical distribution lines underground as
required by and in accordance with the Company’s tariffs and as required by subdivision or
other regulations adopted by the City or other proper authority as set forth in Chapter 4 of
Title XII and Chapters 2 and 4 of Title XVII of the Pueblo Municipal Code as it exists or
may be amended, replaced or renumbered, and City Ordinance No. 7560 relating to
utilities, defining and regulating overhead electrical feeder lines, and providing penalties
for violation thereof. Newly constructed electric distribution lines are lines that did not
exist prior to their construction. Any existing overhead line that requires an upgrade does
not constitute a new line.
§11.3 Underground Conduit. In addition to the rights given the City under this Article, whenever
the Company installs new underground conduits or replaces existing underground conduits,
the Company shall provide reasonable advance notice to the City, prior to placing newly
constructed electrical distribution lines in newly developed areas underground, so that the
City may elect to request that the Company install additional conduit for the City. If City
wants additional conduit installed, it will notify Company and provide conduit to the
Company at the City’s expense. The City will pay to the Company any additional or
incremental cost required to install the City’s conduit. City and Company shall cooperate
to minimize installation costs of underground conduit and minimize cutting the streets.
§11.4 Undergrounding Conversion Fee.
A. Undergrounding Fee. In further consideration for this Franchise, in addition to the
Franchise Fee payable under this Franchise, the Company shall collect from its customers
during the term of the Franchise, a sum equal to one half of one percent (0.5%) of the
current charges appearing on each customer statement (except that portion of current
charges constituting pass through of the Franchise Fee) (the “Undergrounding Fee”) for
the purpose of undergrounding existing overhead distribution facilities in streets and other
public places within the City and the associated service lines, as requested by the City in
the exercise of its police powers and in accordance with the provisions of this Franchise.
To the extent required or provided for by law, the Company shall collect the
Undergrounding Fee from a surcharge upon City residents, including businesses, who are
customers of the Company, in the manner provided by 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 Franchise Fees to the City. Alternatively, at the request of the City, the Company
agrees to deposit, on at least a monthly basis, the Underground Fees collected by the
Company into one or more segregated, interest-bearing accounts, in the Company’s name
but for the benefit of the City, at institutions selected by the City and, upon such deposit, the
Company shall not be responsible for any losses that might be incurred as a result of the
failure or performance of such institutions.
C. Undergrounding Eligible Projects Any undergrounding of any distribution line
shall extend for a minimum distance of one City block or 750 feet, whichever is less, or
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as may be mutually agreed to by the parties. The determination of undergrounding
projects that can be completed with the amount of funds available from the Underground Fee
shall be made by the City, after consultation with the Company, and shall be dependent
upon safety concerns and protection of the operating integrity of the Company’s electric
system, which determination shall be made by the Company on a case-by-case basis in
accordance with prudent engineering and utility practices (“Eligible Projects”). The
Company shall be responsible for all of the work associated with any all Eligible Project.
D. Advances of Undergrounding Fees. In the event the City proposes an Eligible Project
which has an estimated cost that exceeds the amount of Undergrounding Fees then collected,
upon request by the City, the Company agrees to advance and expend the additional amounts
required to complete such Eligible Project; provided, however, that the Company shall not be
required to advance more than the amount anticipated to be available from collection of the
Undergrounding Fee for the two (2) year period following such request (or the remaining
term of this Franchise if less than 2 years). The Company shall be entitled to recoup such
advances from subsequent collection of Undergrounding Fees and, without the Company’s
consent, the City shall not propose another Eligible Project until the Company has recouped
such advances. No relocation expenses which the Company would be required to expend
pursuant to Article 6 (except for § 6.8 B thereof), Article 12, or Article 13 of this Franchise
shall be payable out of the Underground Fund. City may, at any time, by Ordinance duly
adopted by its City Council, temporarily suspend or terminate the collection of
Undergrounding Fees, and thereafter, it may likewise re-impose such Fees by Ordinance;
provided, however, that no suspension of the Undergrounding Fees shall be effective
unless and until the Company has recouped any amounts advanced pursuant to this
Section 11.4D.
E. System Wide Undergrounding. If, during the term of this Franchise, the
Company should undertake a system wide program or programs of undergrounding its
electricdistribution facilities, the Company will budget and allocate to the program of
undergrounding in the City such amount as may be determined and approved by the
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 Franchise Fee provided in Article 4 of
this Agreement.
F. City Requirement to Underground. In addition to the provisions of this Article, the
City may require any above ground Company Facilities to be moved underground at the
City’s expense pursuant to the City’s police power.
§11.5 Undergrounding Performance. Promptly upon receipt of a request for an Eligible Project and
all Supporting Documentation from the City necessary to design such Project, the Company
shall prepare a detailed, good faith cost estimate of the anticipated actual cost of the requested
project for the City to review and, if acceptable, issue a project authorization. At the City’s
request, the Company will provide all documentation which forms the basis of the estimate.
The Company will not proceed with any requested project until the City has provided a
written acceptance of the estimate. Upon receipt of a written acceptance of the estimate, the
Company shall, to the extent of monies collected from the Underground Fee and advanced by
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the Company pursuant to Section 11.2B of this Franchise, underground the facilities that are
the subject of the request in accordance with the procedures set forth in this Section. This
section does not apply to relocations under §6.7 of this Franchise Agreement.
A. Timing. The Company shall complete each Eligible Project within a commercially
reasonable time.
B. Performance Standards. Performance under this Article shall be subject to the
standards of Article 8 of this Agreement.
C. Report of Actual Costs. Upon completion of each undergrounding project, the
Company shall submit to the City a detailed report of the Company’s actual cost to
complete the project and the Company shall reconcile this total actual cost with the
accepted cost estimate. In the event the Underground Fee collections have been paid to
the City, upon completion of an Eligible Project, the City shall promptly pay the
Company for its actual costs. In the event the Underground Fee collections have been
deposited in one or more interest-bearing accounts at the request of the City, upon
completion of an Eligible Project, upon twenty (20) days prior written notice to City, the
Company may reimburse itself for its actual costs.
D. Audit of Underground Projects. The City may require that the Company
undertake an independent audit of up to two (2) undergrounding projects in any calendar
year. The cost of any such independent audit shall be paid for out of the Undergrounding
Fee collections. The Company shall cooperate fully with any audit and the independent
auditor shall prepare and provide to the City and the Company a final audit report showing
the actual costs associated with completion of the project. If a project audit is requested by
the City, only those actual project costs confirmed and verified by the independent
auditor shall be charged to the Fund.
§11.6 Audit of Underground Fund. Upon written request, every three (3) years commencing at
the end of the third year of this Franchise, either the Company or the City may cause an
independent auditor to investigate and determine the correctness of the Undergrounding Fee
collections and costs of Eligible Projects paid for by such Underground Fee collections.
Such audits shall be limited to the previous three (3) calendar years. The auditor shall
provide a written report containing its findings to the City and the Company. The Company
shall reconcile the Fund consistent with the findings contained in the independent
auditor’s written report. If there are no adjustments required by the independent auditor, the
costs of the audit and investigation shall be paid by the Undergrounding Fee collections. If
adjustments are required, the Company shall pay the costs of the audit and investigation and
they shall not be paid out of the Undergrounding Fee collections.
§11.7 Cooperation with Other Utilities. At the time any Company electrical line is placed
underground pursuant to this Article, the Company shall notify any City Licensee having
access to affected Company poles that such poles are to be abandoned and vacated and
the Company shall request that any such facilities belonging to other Licensees be
removed. When undertaking an undergrounding project the City and the Company shall
use reasonable efforts to coordinate with other utilities or companies that have their facilities
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above ground to attempt to have all facilities undergrounded as part of the same project.
When other utilities or companies are placing their facilities underground, to the extent the
Company has received prior notification, the Company may cooperate with these utilities
and companies and undertake to underground Company facilities as part of the same
project where financially, technically and operationally feasible; provided, however, that
such undergrounding will not represent an increased expense to the Company and not
create an unreasonable safety hazard or otherwise interfere with the Company’s use of its
underground facilities. The Company shall not be required to pay for the cost of
undergrounding the facilities of other companies or the City in connection with this
Article.
§11.8 Planning and Coordination of Undergrounding Projects. The City and the Company shall
mutually plan in advance the scheduling of undergrounding projects to be undertaken
according to this Article. The City and the Company agree to meet, as required, to review the
progress of the current undergrounding projects and to review planned future
undergrounding projects. Such meetings shall be to further cooperation between the City and
the Company to achieve the orderly undergrounding of Company Facilities.
Representatives of both the City and the Company shall meet periodically to review the
Company’s undergrounding of Company Facilities and at such meetings shall review:
Undergrounding, including conversions, Public Projects and replacements which
A.
have been accomplished or are underway, together with the Company’s plans for additional
undergrounding; and
B. Public Projects anticipated by the City
ARTICLE 12
PURCHASE OR CONDEMNATION
§12.1 Municipal Right to Purchase or Condemn.
A. Right and Privilege of City. The right and privilege of the City to purchase or
condemn any Company Facilities located within the territorial boundaries of the City, and
the Company’s rights in connection therewith, as set forth in applicable provisions of the
constitution and statutes of the State of Colorado relating to the acquisition of public
utilities, and the City’s rights as set forth in its Charter and ordinances, are expressly
recognized. The City shall have the right, within the time frames and using the procedures
set forth in such provisions, to purchase Company Facilities, land, rights-of-way and
easements now owned or to be owned by the Company located within the territorial
boundaries of the City. In the event of any such purchase, no value shall be ascribed or
given to the rights granted under this Franchise in the valuation of the property thus taken.
B. Value Upon Condemnation. Neither the Company nor the City agree at this time
upon any particular method for valuation of any interest in Company Facilities or other
property to be condemned, but each party reserves all rights to advocate for such method
of valuation as it may elect.
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C. Notice of Intent to Purchase or Condemn. The City shall provide the Company such
notice of intent to purchase or condemn Company Facilities as may be required by law.
Nothing in this section shall be deemed or construed to constitute consent by the
Company to the City’s purchase or condemnation of Company Facilities.
D. Limitations on Company Removal. If, at the time of termination of this Franchise,
no renewal has been negotiated between the City and Company, the Company shall have
no right to remove facilities from streets, public ways and dedicated easements Upon
request by the City, made in writing, Company facilities located in public streets, ways and
dedicated easements which are not purchased by the City at the termination of this
Franchise shall be removed by the Company at Company expense and all public and
private property shall be restored by the Company at Company expense and all public and
private property shall be restored to its former condition. Company need not remove
property that it shall continue to own, use and maintain.
E. Right of First Refusal. If the Company, at any time during the term of this
Franchise, proposes to sell or dispose of any of its real estate or water facilities lying
within the City, the Company shall so notify the City. The property shall be offered to
the City for the price contained in a bona fide offer from a third party which is acceptable
to the Company. The terms thereof shall be included in the Company's notice to the City.
The City shall have thirty (30) days thereafter to give written notice of its interest in, and
non-binding preliminary intent, to exercise a right of first refusal to purchase this
property. The City shall have an additional thirty (30) days after notice of receipt by the
Company of such notice of the City's preliminary non-binding intent to exercise its first
right of refusal in which to complete its firm obligation to exercise its right of first
refusal. The provisions shall not restrict the rights of the City to purchase or condemn the
Company's facilities reserved under Article 12 of this Ordinance.
ARTICLE 13
MUNICIPALLY-PRODUCED UTILITY SERVICE
§ 13.1 Municipally-Produced Utility Service.
A. City Reservation. The City expressly reserves (i) the right to engage in the
production of electric power, (ii) the right to exercise its Constitutional power to create
and operate a municipal electric utility under applicable law and to, thereafter, exercise the
rights of a municipal utility including, but not limited to, the right to purchase wholesale
power, and (iii) to otherwise exercise each and every power held under its home rule
charter.
B. Sale of Power. To the extent consistent with statutory requirements and 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
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resource needs and needs under the renewable energy standards.
C. Delivery Services. To the extent the Company is required by judicial, statutory
and/or regulatory directive to provide transmission and/or retail wheeling services, the
Company agrees to provide such services on the terms and conditions contained in such
directives. As of the effective date of this Franchise, the parties acknowledge that there
are currently no judicial, statutory or regulatory directives requiring retail wheeling in
Colorado.
D. Company’s Resource Planning. 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. Franchise Not to Limit City’s Rights. Nothing in this Franchise prohibits the City
from becoming an aggregator of utility service or from selling utility service to customers
should it be permissible under law.
F. Exploration of Options to Reduce City Costs. The Company and the City agree to
cooperate in the evaluation of options to reduce the City’s costs for electric service
including, but not limited to, energy efficiency, peak shaving, renewable energy options,
and net metering. The parties will endeavor to timely identify mutually agreeable options
that may impact the Company’s 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 Franchise. The
Company agrees to
A. Continue to cost-effectively monitor its operations to mitigate environmental
impacts; shall meet or exceed the requirements of environmental laws, regulations and
permits; invest in cost-effective environmentally-sound technologies; consider
environmental issues in its planning and decision-making; and support environmental
research and development projects and partnerships in the City through corporate giving,
employee involvement and projects including but not limited to the Solar Technology
Application Center;
B. Continue to work with the applicable governmental agencies to develop and
implement avian protection plans to reduce electrocution and collision risks by eagles,
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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:
notify the City regarding all eligible Renewable Energy
(1)
Resource programs;
provide the City with technical support regarding how the City
(2)
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.
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§14.4 Company Action. Nothing in this Franchise shall be deemed to require the Company to
invest in technologies or to incur costs that its management has not elected to pursue.
ARTICLE 15
TRANSFER OF FRANCHISE
§15.1 Consent of City Required for Transfer of Franchise. The Company shall not transfer or
assign any rights under this Franchise to any third party, unless the City consents to and
approves such transfer or assignment in writing. In order to obtain such consent and
approval, the Company shall provide to City a request for consent and approval sufficient
information showing that the proposed assignee has the technical and financial ability to
perform the obligations of Company under this Agreement. Consent and approval may be
denied by the City if, based upon the information provided, it reasonably determines that
the assignee appears either unwilling or not technically or financially qualified or able to
perform the obligations of Company under this Franchise Agreement, or for any other
valid municipal or public policy reason.
§15.2 Condition Precedent. Consent of the City shall be, and hereby is made, an express
condition precedent to any application for any transfer or assignment of this Franchise to
any third-party by the Company.
§15.3 Transfer Fee. In order that the City may share in the value this Franchise adds to the
Company’s operations, any transfer or assignment of rights granted under this Franchise
requiring City approval, as set forth herein, shall be subject to the condition that the
Company shall promptly pay to the City a transfer fee in an amount equal to $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 Franchise until the date of the approval of the
transfer by the City. Except as otherwise required by law, such transfer fee shall not be
solely recovered from, imposed upon, charged to, added to or collected from Residents of the
City.
§15.4 Taxes. Any transfer of this Franchise or of Company assets located in the City shall be
subject to applicable taxes.
ARTICLE 16
CONTINUATION OF UTILITY SERVICE
§16.1 Continuation of Utility Service. In the event this Franchise is not renewed at the
expiration of its term or is terminated for any reason, and the City has not provided for
alternative utility service, the Company shall have no right to discontinue service or to
remove any Company Facilities and the City shall have no right to require the removal of
Company Facilities, except as provided in this Franchise and under applicable law, unless
otherwise ordered or permitted by a Court of competent jurisdiction, 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
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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 in the same
manner as provided in the Franchise, an aggregate amount equal to the amount which the
Company would have paid as a Franchise fee as consideration for use of the City’s
Streets. Only upon receipt of written notice from the City stating that the City has
adequate alternative Utility Service for Residents shall the Company be allowed to
discontinue the provision of Utility Service to the City and its Residents.
ARTICLE 17
INDEMNIFICATION AND IMMUNITY
§17.1 City Held Harmless. The Company shall indemnify, defend and hold the City harmless
from and against all claims, demands, liens, judgments, and all liability or damage of
whatsoever kind on account of or arising from the grant of this Franchise or the exercise by
the Company of the related rights of the Company within the City, and shall pay the costs of
defense plus reasonable attorneys’ fees. The City shall (a) give prompt written notice to
the Company of any claim, demand or lien with respect to which the City seeks
indemnification hereunder and (b) unless in the City’s judgment a conflict of interest may
exist between the City and the Company with respect to such claim, demand or lien, shall permit
the Company to assume the defense of such claim, demand, or lien with counsel satisfactory
to the City. If such defense is assumed by the Company, the City shall not be subject to
any liability for any settlement made without its consent. If such defense is not assumed by the
Company or if the City determines that a conflict of interest exists, the parties reserve all
rights to seek all remedies available in this Franchise against each other. Notwithstanding
any provision hereof to the contrary, the Company shall not be obligated to indemnify, defend
or hold the City harmless to the extent any claim, demand or lien arises from any negligent or
intentional act or failure to act of the City or any of its officers or employees.
§17.2 Indemnification by Company. The Company shall construct, maintain and operate its plant,
equipment, structures and other facilities in a manner which provides protection against
injury or damage to persons or property. Company shall save the City harmless and
indemnify and defend the City from and against all claims, demands, liability, judgments
and loss whatsoever in nature, and reimburse the City, for all its reasonable expenses,
including attorney and expert witness fees, arising out of or resulting directly or indirectly
from the construction, maintenance and operations of the Company within the City and the
securing of and the exercise by Company of the Franchise rights granted herein, including
any third-party claims, administrative hearings and litigation. None of the City expenses
reimbursed by the Company under the Article shall be surcharged to the City or its residents.
§17.3 Immunity. Nothing in this Section or any other provision of this agreement shall be
construed as a waiver of the notice requirements, defenses, immunities and limitations the
City may have under the Colorado Governmental Immunity Act, §24-10-101, C.R.S., et.seq.
or of any other defenses, immunities, or limitations of liability available to the City by law.
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ARTICLE 18
BREACH
§18.1 Non-Contestability. The City and the Company agree to take all reasonable and necessary
actions to assure that the terms of this Franchise are performed and neither will take any
legal action to secure modification of this Franchise. However, the Company reserves the
right to seek a change in its rates, charges, terms, and conditions imposed upon customers
of providing Utility Service to the City and its Residents; 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 Breach.
A. Notice/Cure/Remedies. Except as otherwise provided in this Franchise, if a party
(the "breaching party") to this Franchise fails or refuses to perform any of the terms or
conditions of this Franchise (a "breach"), the other party (the "non-breaching party") may
provide written notice to the breaching party of such breach. Upon receipt of such notice,
the breaching party shall be given a reasonable time, not to exceed sixty (60) days,
subject to Force Majeure, in which to remedy the breach. If the breaching party does not
remedy the breach within the time allowed in the notice, the non-breaching party may
exercise the following remedies for such breach:
(1) specific performance of the applicable term or condition; and
(2) recovery of actual damages from the date of such breach incurred by the
non-breaching party in connection with the breach, but not excluding any
consequential damages.
If a breach is of such type or nature that it cannot reasonably be remedied in sixty (60)
days, the breaching party shall immediately inform and demonstrate to the non-breaching
party of the fact that the breach cannot reasonably be remedied in sixty (60) days. The
breaching party shall immediately begin work to cure the breach and shall diligently and
expeditiously prosecute to completion all work necessary to remedy the breach.
B. Termination of Franchise by City. In addition to the foregoing remedies, if the
Company fails or refuses to perform any material term or condition of this Franchise (a
"material breach"), the City may provide written notice to the Company of such material
breach. Upon receipt of such notice, the Company shall be given a reasonable time, not to
exceed ninety (90) days, subject to Force Majeure, in which to remedy the material breach.
If a breach is of such type or nature that is cannot reasonably be remedied in ninety (90) days,
the Company shall immediately inform and demonstrate to the City of the fact that the breach
cannot reasonably be remedied in ninety (90) days. The Company shall immediately begin
work to cure the breach and shall diligently and expeditiously prosecute to completion all
work necessary to remedy the breach. If the Company does not remedy the material breach
within the time provided in this subparagraph B, the City may, at its sole option, terminate
this Franchise. This remedy shall be in addition to the City's right to exercise any of the
32
remedies provided for elsewhere in this Franchise. Upon such termination, the Company
shall continue to provide Utility Service to the City and its Residents until the City makes
alternate arrangements for such service and the Company shall be entitled to collect from the
Residents and shall be obligated to pay the City, at the same times and in the same manner as
provided in the Franchise, an aggregate amount equal to the amount which the Company
would have paid as a Franchise fee as consideration for the use of City Streets.
C. Company Shall Not Terminate Franchise. In no event does the Company have the
right to terminate this Franchise.
D. No Limitation. Except as provided herein, nothing in this Franchise shall limit or
restrict any legal rights or remedies that either party may possess arising from any alleged
breach of this Franchise.
E. Costs and Attorneys Fees. If the City initiates any legal action seeking damages
for any alleged violation of this Franchise, or to seek enforcement of any of the
provisions hereof, then the prevailing party in any such action shall recover from the
other party all of its reasonable costs and attorneys fees incurred in connection with the
matter, regardless of whether such costs and/or fees were incurred prior to, during or
subsequent to the legal action filed by the City.
ARTICLE 19
AMENDMENTS
§19.1 Proposed Amendments. At any time during this Franchise the City, through its City
Council, or the Company, may propose amendments to this Franchise by giving thirty
(30) days written notice to the other party of the proposed amendment(s) desired.
Thereafter, both parties, through their designate representatives shall, within a reasonable
time, negotiate in good faith in an effort to agree upon mutually satisfactory
amendment(s). Proposed amendments to this Franchise shall only become effective in
accordance with the provisions of Section 19.2.
§19.2 Effective Amendments. No alterations, amendments or modifications to this Franchise
shall be valid unless executed by an instrument in writing by the parties, adopted with the
same formality used in adopting this Franchise, to the extent required by law. Neither this
Franchise, nor any term hereof, may be changed, modified or abandoned, in whole or in part,
except by a written instrument mutually agreed upon, and no subsequent oral agreement
shall have any validity whatsoever.
ARTICLE 20
EQUAL EMPLOYMENT OPPORTUNITY
§20.1 Equal Opportunity Employer. The Company shall be an equal opportunity employer and
will comply with applicable laws. As an equal opportunity employer, the Company will
not discriminate in its employment decisions on the basis of race, color, national origin,
sex, religion, age, disability, veteran status or any other characteristic protected by
33
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
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 Franchise by any failure of the other, or any of its officers,
employees, or agents, upon any one or more occasions, to insist upon or to seek compliance
with any such terms and conditions.
§21.2 Successors and Assigns. The rights, privileges, and obligations, in whole or in part,
granted and contained in this Franchise shall inure to the benefit of and be binding upon the
Company, its successors and assigns, to the extent that such successors or assigns have
succeeded to or been assigned the rights of the Company pursuant to Article 15 of this
Franchise.
§21.3 Third Parties. Nothing contained in this Franchise shall be construed to provide rights to
any third parties.
§21.4 Notice. Both parties shall designate from time to time in writing representatives for the
Company and the City who will be the persons to whom notices shall be sent regarding
any action to be taken under this Franchise. Notice shall be in writing and
forwarded by certified mail or hand delivery to the persons and addresses as hereinafter
stated, unless the persons and addresses are changed at the written request of either
party, delivered in person or by certified mail. Until any such change shall hereafter be
made, notices shall be sent as follows:
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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
and to:
General Counsel
Sisto Mazza, Esq.
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 Franchise.
Information shall be provided promptly and in any event within thirty (30) days of any
written request. Any books, documents, papers, and records of the Company in any form
that are requested by the City, that contain confidential information shall have the
confidential information therein contained conspicuously identified as "confidential" or
"proprietary" by the Company. Confidential information shall be provided to City, except
that in no case shall any privileged communication be subject to examination by the City
pursuant to the terms of this section. "Privileged communication" means any
communication that would not be discoverable due to the attorney client privilege or any
other privilege that is recognized in Colorado, including but not limited to the work product
privilege. The work product privilege shall include information developed by the Company
in preparation for Commission proceedings.
B. With respect to any information requested by the City which the Company
identifies as "Confidential" or "Proprietary":
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The City will maintain the confidentiality of the information by keeping it
(1)
under seal and segregated from information and documents that are available to the public;
The information shall be used solely for the purpose of determining the
(2)
Company's compliance with the terms and conditions of this Franchise. The information
shall only be made available to City employees and consultants who represent in writing
that they agree to be bound by the provisions of this subsection B;
The information may be held by the City for such time as is reasonably
(3)
necessary for the City to address the Franchise issue(s) that generated the request, and, if
requested by Company, shall be returned to the Company or destroyed when the City has
concluded its use of the information. The parties agree that in most cases, the information
should be returned within one hundred twenty (120) days. However, in the event that the
information is needed in connection with any action that requires more time, including, but
not necessarily limited to litigation, administrative proceedings and/or other disputes, the
City may maintain the information until such issues are fully and finally concluded.
C. If an Open Records Act request is made by any third party for confidential or
proprietary information that the Company has provided to the City pursuant to this Franchise,
the City will promptly notify the Company of the request and shall allow the Company to
defend such request at its sole expense, including filing a legal action in any court of
competent jurisdiction to prevent disclosure of such information. In any such legal action the
Company shall join the person requesting the information and the City. In no circumstance
shall the City provide to any third party confidential information provided by the Company
pursuant to this Franchise without first conferring with the Company or as otherwise
permitted by a Court of Competent Jurisdiction. The Company shall defend, indemnify
and hold the City harmless from any claim, judgment, costs or attorney fees incurred in
participating in such proceeding.
D. Unless otherwise agreed between the Parties, the following information shall not be
provided by the Company: confidential employment matters, specific information
regarding any of the Company's customers, information related to the compromise and
settlement of disputed claims, information provided to the Company which is declared by the
provider to be confidential, and which would be considered confidential to the provider
under applicable law.
E. The Company shall provide the City, upon request not more than every two (2)
years, a list of utility related property owned or leased by the Company within the City. All
such records must be kept for a minimum of four (4) years.
F. Communications with Regulatory Agencies. Upon request of the City, a copy of all
petitions, applications, communications, filings and reports submitted by Company to
FERC, the Commission or any other Federal or State regulatory commission or agency
having jurisdiction in respect to any matters which may specifically impact the City's rights
or obligations with regard to this Franchise, shall be served upon the City as required by law
or applicable rule.
36
G. Information. Upon written request, the Company shall provide the City Manager or
the City Manager' designee with access to the following:
a copy of the Company's or its parent company's consolidated annual
(1)
financial report, or alternatively, a URL link to a location where the same information is
available on the Company's web site;
maps or schematics in electronic format indicating the location of specific
(2)
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.
The Company shall supply to the City, and maintain in an up-to-date
(3)
condition, in a format compatible with the City’s geographic information systems database,
as presently existing or as revised by the City, a set of maps showing the following:
a.emergency routes;
b.locations where hazardous materials may exist, including but not
limited to, transformers, substations and power plants;
c.any other information as my reasonably be requested by City
police, fire or emergency preparedness services.
The Company shall provide the maps set forth in this section to the City at no charge to
the City.
(4) a copy of any report required to be prepared for a federal or state agency
detailing the Company's efforts to comply with federal and state air and water pollution
laws.
§21.6 Payment of Taxes And Fees.
The Company shall pay and discharge as they become due, promptly and before
A.
delinquency, all taxes, assessments, rates, charges, license fees, municipal liens, levies,
excises, or imposts, whether general or special, or ordinary or extra-ordinary, of every
name, nature, and kind whatsoever, including all governmental charges of whatsoever
name, nature, or kind, which may be levied, assessed, charged, or imposed, or which may
become a lien or charge against this agreement ("Impositions"), provided that Company
shall have the right to contest any such Impositions and shall not be in breach of this
section so long as it is actively contesting such Impositions.
The City shall not be liable for the payment of taxes, late charges, interest or
B.
penalties of any nature other than pursuant to applicable tariffs on file and in effect.
§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
37
ordinances and regulations of the City.
§21.8 Certificate of Public Convenience and Necessity. Upon execution of this Franchise by
both parties, the City agrees to support any application the Company may file with the
Commission to obtain a certificate of public convenience and necessity to exercise the
rights and obligations granted under this Franchise.
§21.9 Authority. Each party represents and warrants that except as set forth below, it has taken
all actions that are necessary or that are required by its ordinances, regulations, procedures,
bylaws, or applicable law, to legally authorize the undersigned signatories to execute this
agreement on behalf of the parties and to bind the parties to its terms. The persons
executing this agreement on behalf of each of the parties warrant that they have full
authorization to execute this agreement. The City acknowledges that notwithstanding the
foregoing, the Company requires a certificate of public convenience and necessity from the
Commission to operate under the terms of this Franchise.
§21.10 Severability. Should any one or more provisions of this Franchise be determined to be
unconstitutional, illegal, unenforceable or otherwise void, all other provisions nevertheless
shall remain effective. In the event a provision is determined to be unconstitutional,
illegal, unenforceable or otherwise void, all other terms, covenants and conditions of this
Franchise and their application not adversely affected thereby shall remain in force and
effect; provided, however, that the Parties shall negotiate in good faith to attempt to
implement a replacement provision or an equitable adjustment in the provisions of this
Franchise with a view toward effecting the purposes of the provision by replacing the
provision that is held invalid, illegal, or unenforceable with a valid provision the
economic effect of which comes as close as possible to that of the provision that has been
found to be invalid, illegal or unenforceable
§21.11 Force Majeure. Neither the City nor the Company shall be in breach of this Franchise if a
failure to perform any of the duties under this Franchise is due to Force Majeure, as defined
in Section 1.10.
§21.12 Earlier Permits and Authorizations Superseded. This Franchise shall constitute the only
Franchise 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 Franchise.
§21.14 Applicable Law. Colorado law shall apply to the construction and enforcement of this
Franchise. The parties agree that exclusive venue for any litigation arising out of this
Franchise shall be in the District Court in and for Pueblo County, State of Colorado.
§21.15 Payment of Expenses Incurred by City in Relation to Franchise Agreement. The
Company shall pay for expenses incurred by City in negotiating and concluding this
Franchise, including the publication of notices, publication of the resolution, and
photocopying of documents.
38
" r
§21 16 Contract Obligation. This Franchise constitutes a valid and binding contract between
Company and the City In the event that the Franchise fee, or any financial obligation of
Company to the City specified in this Franchise is declared illegal, unconstitutional or void
for any reason by decision of any court or other proper authonty, fees previously paid under
the terms of this Franchise shall be deemed paid pursuant to contract between the City and
Company and Company shall not attempt to recoup any Franchise fee previously paid
pursuant to the terms of this Franchise
§21 17 Bargained For Exchange. All provisions in this Franchise are part of a bargained -for
exchange. The parties agree that no use of any course of negotiations, or the inclusion or
exclusion of any term or provision in drafts shall be admissible to demonstrate, as an
evidentiary matter in any proceeding, that either party has taken, acceded to or foregone any
position.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
4 CITY OF PUEBLO
ATTEST c#' oo;
�r
;ail' s - /Ai Cit lerk �� \� . 4 "resident Cit Council
O' a
•�' _.
lI ,�° i /
APPROVED AS T
City Attorne fi
SAN IS • 1 EL ELECTRIC ASSOCIATION
N..1 e. Donald G. eairns
SEAL Title President
[Note — City Officials not to sign until and unless approved by the registered electors, and Company files its
acceptance and ratification.]
39
EXHIBIT "A"
ACCEPTANCE BY SAN ISABEL ELECTRIC ASSOCIATION OF AN ELECTRIC
FRANCHISE GRANTED BY ORDINANCE NO 8360
TO BE SUBMITTED TO A VOTE OF THE ELECTORS OF THE CITY OF PUEBLO,
COLORADO
WHEREAS, San Isabel Electric Association ( "Company ") has negotiated the terms and
conditions of a new electric franchise between said Company and the City of Pueblo, a
Municipal Corporation which franchise is as set forth in Ordinance No 8360 entitled
AN ORDINANCE GRANTING A NON - EXCLUSIVE FRANCHISE TO SAN
ISABEL ELECTRIC ASSOCIATION WITHIN ITS CER I'IF'ICA TED AREA TO
FURNISH AND SELL ELECTRICITY TO THE CITY AND TO ALL RESIDENTS
WITHIN THE CITY, AND THE NON - EXCLUSIVE RIGHT TO ACQUIRE,
PURCHASE, CONSTRUCT, INSTALL, MAINTAIN, OPERATE AND EXTEND
INTO, WITHIN AND THROUGH SAID CITY ALL FACILITIES REASONABLY
NECESSARY FOR THE GENERATION, PRODUCTION, SALE, PURCHASE,
EXCHANGE, TRANSMISSION AND DISTRIBUTION OF THE ELECTRIC
UTILITY SERVICE WITHIN AND THROUGH THE CITY, TOGETHER WITH
THE RIGHT TO MAKE REASONABLE USE OF THE STREETS AND PUBLIC
UTILITY EASEMENTS OF THE CITY AS HEREIN DEFINED AS MAY BE
NECESSARY, AND FIXING THE TERMS, CONDITIONS, AND REQUIREMENTS
APPLICABLE TO ALL OF THE FOREGOING
NOW, THEREFORE, in consideration of the premises and in pursuance of the provisions
of said Ordinance No 8360 of Pueblo, Company does hereby accept the franchise and all of its
terms and conditions contained in said Ordinance No 8360
IN WITNESS WHEREOF, Company has caused its corporate name to be hereunto
subscribed by its President , and its Corporate Seal to be hereunto affixed,
attested by its Secretary , as of this 31 stday of August , 2011
SAN I' BEL EL C R SO CIATION
ATTEST. �
� Name Donald G Kearns
Name Of 2.2)&-e Title President
Title c if el�ri
EXHIBIT "B"
RATIFICATION BY SAN ISABEL ELECTRIC ASSOCIATION OF FRANCHISE
GRANTED BY THE CITY OF PUEBLO, COLORADO
BY ORDINANCE NO 8360 APPROVED BY THE
ELECTORS OF THE CITY OF PUEBLO
WHEREAS, a special municipal franchise election was held on November, 1, 2011, and
at said election the majority of the registered electors of the City of Pueblo voting thereon
approved the franchise as set forth in Ordinance No 8360, entitled.
AN ORDINANCE GRANTING A NON - EXCLUSIVE FRANCHISE TO SAN
ISABEL ELECTRIC COMPANY WITHIN ITS CERTIFICATED ICATED AREA TO
FURNISH AND SELL ELECTRICITY TO THE CITY AND TO ALL RESIDENTS
WITHIN THE CITY, AND THE NON - EXCLUSIVE RIGHT TO ACQUIRE,
PURCHASE, CONSTRUCT, INSTALL, MAINTAIN, OPERATE AND EXTEND
INTO, WITHIN AND THROUGH SAID CITY ALL FACILITIES REASONABLY
NECESSARY FOR THE GENERATION, PRODUCTION, SALE, PURCHASE,
EXCHANGE, TRANSMISSION AND DISTRIBUTION OF THE ELECTRIC
UTILITY SERVICE WITHIN AND THROUGH THE CITY, TOGETHER WITH
THE RIGHT TO MAKE REASONABLE USE OF THE STREETS AND PUBLIC
UTILITY EASEMENTS OF THE CITY AS HEREIN DEFINED AS MAY BE
NECESSARY, AND FIXING THE TERMS, CONDITIONS, AND REQUIREMENTS
APPLICABLE TO ALL OF THE FOREGOING.
WHEREAS, Ordinance No 8360 provides that San Isabel Electric Association
( "Company ") shall file with the City Clerk its written ratification of the franchise granted by
Ordinance No 8360 within ten (10) days after the special municipal election,
NOW, THEREFORE, Company hereby ratifies the franchise and all of its terms and
conditions contained in said Ordinance No 8360 and agrees to be bound thereby
IN WITNESS WHEREOF, Company has caused its corporate name to be hereunto
subscribed by its President , and its Corporate Seal to be hereunto affixed,
attested by its Secretary , as of this 2nd day of November, 2011
SAN I` BEL EL CT' IC ASSOCIATION
/
ATTEST
J44L.Q Name Donald G. Keairns
Name Deborah Rose Title President
Title Secretary