HomeMy WebLinkAbout08967 ORDINANCE NO. 8967
AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE TO PUBLIC SERVICE
COMPANY OF COLORADO, ITS SUCCESSORS AND ASSIGNS, THE RIGHT TO
PROVIDE NATURAL GAS UTILITY SERVICE 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 SALE,
PURCHASE, EXCHANGE, TRANSMISSION AND DISTRIBUTION OF NATURAL GAS
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, UPON THE TERMS,
CONDITIONS AND REQUIREMENTS SET FORTH IN THE FRANCHISE AGREEMENT
ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE
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FRANCHISE AGREEMENT BETWEEN THE CITY OF PUEBLO, COLORADO AND
PUBLIC SERVICE COMPANY OF COLORADO
ARTICLE 1 DEFINITIONS
ARTICLE 2 GRANT OF FRANCHISE
ARTICLE 3 CITY POLICE POWERS
ARTICLE 4 FRANCHISE FEE
ARTICLE 5 ADMINISTRATION OF FRANCHISE
ARTICLE 6 SUPPLY, CONSTRUCTION,AND DESIGN
ARTICLE 7 RELIABILITY
ARTICLE 8 COMPANY PERFORMANCE OBLIGATIONS
ARTICLE 9 BILLING AND PAYMENT
ARTICLE 10 PURCHASE OR CONDEMNATION
ARTICLE 11 TRANSFER OF FRANCHISE
ARTICLE 12 CONTINUATION OF UTILITY SERVICE
ARTICLE 13 INDEMNIFICATION AND IMMUNITY
ARTICLE 14 BREACH
ARTICLE 15 AMENDMENTS
ARTICLE 16 EQUAL OPPORTUNITY
ARTICLE 17 MISCELLANEOUS
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS 1
§1.1 "City" 1
§1.2 "Company" 1
§1.3 "Company Facilities" 1
§1.4 "Council"or"City Council" 1
§1.5 "Force Majeure" 1
§1.6 "Gross Revenues" 1
§1.7 "Industry Standards" 1
§1.8 "Other City Property" 2
§1.9 "Private Project" 2
§1.10 "Public Project" 2
§1.11 "Public Utilities Commission"or"PUC" 2
§1.12 "Public Utility Easement" 2
§1.13 "Relocate,""Relocation,"or"Relocated" 2
§1.14 "Residents" 2
§1.15 "Streets" or"City Streets" 2
§1.16 "Supporting Documentation" 2
§1.17 "Tariffs" 3
§1.18 "Utility Service" 3
ARTICLE 2 GRANT OF FRANCHISE 3
§2.1 Grant of Franchise 3
§2.2 Conditions and Limitations 3
§2.3 Effective Date and Term 4
ARTICLE 3 CITY POLICE POWERS 4
§3.1 Police Powers 4
§3.2 Regulation of Streets or Other City Property 4
§3.3 Compliance with Laws 4
ARTICLE 4 FRANCHISE FEE 4
§4.1 Franchise Fee. 4
§4.2 Remittance of Franchise Fee 5
§4.3 Franchise Fee Payment not in Lieu of Permit or Other Fees 7
ARTICLE 5 ADMINISTRATION OF FRANCHISE 7
§5.1 City Designee 7
§5.2 Company Designee 7
§5.3 Coordination of Work. 7
ARTICLE 6 SUPPLY, CONSTRUCTION, AND DESIGN 8
§6.1 Purpose 8
§6.2 Supply 8
§6.3 Charges to the City for Service to City Facilities. 8
§6.4 Restoration of Service. 8
§6.5 Obligations Regarding Company Facilities. 8
§6.6 Excavation and Construction 10
§6.7 Restoration 10
§6.8 Relocation of Company Facilities 11
§6.9 New or Modified Service Requested by City 13
§6.10 Service to New Areas 13
§6.11 City Not Required to Advance Funds if Permitted by Tariffs 13
. §6.12 Technological Improvements 13
ARTICLE 7 RELIABILITY 13
§7.1 Reliability 13
§7.2 Franchise Performance Obligations 13
§7.3 Reliability Reports 13
ARTICLE 8 COMPANY PERFORMANCE OBLIGATIONS 14
§8.1 New or Modified Service to City Facilities 14
§8.2 Adjustments to Company Facilities 14
§8.3 Third Party Damage Recovery 15
ARTICLE 9 BILLING AND PAYMENT 15
§9.1 Billing for Utility Services. 15
§9.2 Payment to City 16
ARTICLE 10 PURCHASE OR CONDEMNATION 16
§10.1 Municipal Right to Purchase or Condemn 16
ARTICLE 11 TRANSFER OF FRANCHISE 17
§11.1 Consent of City Required 17
§11.2 Transfer Fee 17
ARTICLE 12 CONTINUATION OF UTILITY SERVICE 17
§12.1 Continuation of Utility Service 17
ARTICLE 13 INDEMNIFICATION AND IMMUNITY 18
§13.1 City Held Harmless 18
§13.2 Immunity 18
ARTICLE 14 BREACH 18
§14.1 Change of Tariffs 18
§14.2 Breach. 18
ARTICLE 15 AMENDMENTS 19
§15.1 Proposed Amendments 19
§15.2 Effective Amendments 20
11.
ARTICLE 16 EQUAL OPPORTUNITY 20
§16.1 Economic Development 20
§16.2 Employment. 20
§16.3 Contracting 21
§16.4 Coordination 21
ARTICLE 17 MISCELLANEOUS .. 22
§17.1 No Waiver 22
§17.2 Successors and Assigns 22
§17.3 Third Parties 22
§17.4 Notice 22
§17.5 Examination of Records 23
§17.6 List of Utility Property 23
§17.7 PUC Filings 23
§17.8 Information 23
§17.9 Payment of Taxes and Fees 24
§17.10 Conflict of Interest 24
§17.11 Certificate of Public Convenience and Necessity 24
§17.12 Authority 24
§17.13 Severability 25
§17.14 Force Majeure 25
§17.15 Earlier Franchises Superseded 25
§17.16 Titles Not Controlling 25
§17.17 Applicable Law 25
§17.18 Payment of Expenses Incurred by City in Relation to Franchise Agreement 25
§17.19 Costs of Compliance with Franchise 25
§17.20 Conveyance of City Streets, Public Utility Easements or Other City Property 25
§17.21 Audit 25
§17.22 Land Use Coordination 26
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ARTICLE 1
DEFINITIONS
For the purpose of this franchise agreement("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 "Company"refers to Public Service Company of Colorado, a Colorado corporation, and an
Xcel Energy company and its successors and assigns including affiliates or subsidiaries
that undertake to perform any of the obligations under this Franchise.
§1.3 "Company Facilities" refer to all facilities of the Company reasonably necessary or
desirable to provide gas service into, within and through the City, including but not limited
to plants, works, systems, distribution structures and systems, lines, equipment, pipes,
mains, gas compressors, meters, meter reading devices, communication and data transfer
equipment, control equipment, and gas regulator stations as well as all associated
appurtenances.
§1.4 "Council"or"City Council"refers to and is the legislative body of the City.
§1.5 "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,
terrorist acts, acts of governmental authority, acts of God, floods, epidemics, quarantines,
labor disputes,unavailability or shortages of materials or equipment or failures or delays in
the 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.
§1.6 "Gross Revenues" refers to those amounts of money that the Company receives from the
sale of gas within the City under rates authorized by the Public Utilities Commission, as
well as from the transportation of gas to its customers within the City and those amounts of
money, excluding expense reimbursements, which the Company receives from the use of
Company Facilities in Streets and other public places (unless otherwise preempted by
applicable federal or state law), 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 pursuant to federal
or state regulation. "Gross Revenues" shall exclude any revenues from the sale of gas to
the City or the transportation of gas to the City.
§1.7 "Industry Standards" refers to standards developed by government agencies and generally
recognized organizations that engage in the business of developing utility industry
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standards for materials, specifications, testing, construction, repair, maintenance,
manufacturing, and other facets of the gas utility industries. Such agencies and
organizations include, but are not limited to the U.S. Department of Transportation, the
Federal Energy Regulatory Commission (FERC), the Colorado Public Utilities
Commission, the American National Standards Institute(ANSI),the American Society for
Testing and Materials(ASTMP),the Pipeline Research Council International,Inc. (PRCI),
the American Society of Mechanical Engineers (ASME), the Gas Technology Institute
(GTI), and the National Fire Protection Association.
§1.8 "Other City Property" refers to the surface, the air space above the surface and the area
below the surface of any property owned by the City or directly controlled by the City due
to the City's real property interest in the same or hereafter owned by the City, that would
not otherwise fall under the definition of"Streets," but which provides a suitable location
for the placement of Company Facilities as specifically approved in writing by the City.
Other City Property does not include Public Utility Easements.
§1.9 "Private Project" refers to any project which is not covered by the definition of Public
Project.
§1.10 "Public Project"refers to(1)any public work or improvement within the City that is wholly
owned by the City; 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, the
federal government, the State of Colorado, or any Colorado county, but excluding all
entities established under Title 32 of the Colorado Revised Statutes.
§1.11 "Public Utilities Commission" or "PUC" 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.
§1.12 "Public Utility Easement" refers to any platted easement over, under, or above public or
private property, expressly dedicated to, and accepted by, the City for the use of public
utility companies for the placement of utility facilities, including but not limited to
Company Facilities.
§1.13 "Relocate," "Relocation," or "Relocated" refers to the definition assigned such terms in
Section 6.8.A of this Franchise.
§1.14 "Residents" refers 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.
§1.15 "Streets"or"City Streets"refers to the surface,the air space above the surface and the area
below the surface of any City-dedicated or City-maintained streets, alleys, bridges, roads,
lanes, access easements, and other public rights-of-way within the City, which are
primarily used for vehicle traffic. Streets shall not include Public Utility Easements and
Other City Property.
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§1.16 "Supporting Documentation" refers to all information reasonably required or needed in
order to allow the Company to design and construct any work performed under the
provisions of this Franchise. Supporting Documentation may include, but is not limited to,
construction plans, a description of known environmental issues, the identification of
critical right-of-way or easement issues, the final recorded plat for the property, the date
the site will be ready for the Company to begin construction,the date gas service and meter
set are needed, and the name and contact information for the City's project manager.
§1.17 "Tariffs" refer to those tariffs of the Company on file and in effect with the PUC or other
governing jurisdiction, as amended from time to time.
§1.18 "Utility Service" refers to the sale of gas to Residents by the Company under rates and
Tariffs approved by the PUC, as well as the delivery of gas to Residents by the Company.
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, Public Utility Easements (as
applicable)and Other City Property:
(1) to provide Utility Service to the City and to its Residents under the Tariffs;
and
(2) to acquire, purchase, construct, install, locate, maintain, operate, upgrade
and extend into, within and through the City all Company Facilities
reasonably necessary for the generation, production, manufacture, sale,
storage, purchase, exchange, transportation, transmission and distribution
of Utility Service within and through the City.
§2.2 Conditions and Limitations.
A. Scope of Franchise. The grant of this Franchise shall extend to all areas of
the City as it is now .or hereafter constituted that are within the Company's
PUC-certificated service territory; however, nothing contained in this Franchise shall be
construed to authorize the Company to engage in activities other than the provision of
Utility Service.
B. Subject to City Usage. The right to make reasonable use of City Streets to
provide Utility Service to the City and its Residents under this Franchise is subject to and
subordinate to any City usage of said Streets.
C. Prior Grants Not Revoked. This grant and Franchise is not intended to
revoke any prior license, grant, or right to use the Streets, Other City Property or Public
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Utility Easements and such licenses, grants or rights of use are hereby affirmed. Such
rights shall, however, be governed by the terms of this Franchise where applicable.
D. Franchise Not Exclusive. The rights granted by this Franchise are not, and
shall not be deemed to be, granted exclusively to the Company, and the City reserves the
right to make or grant a franchise to any other person, firm, or corporation.
§2.3 Effective Date and Term.
A. Term. This Franchise shall take effect on August 4, 2016, and shall
supersede any prior Franchise grants to the Company by the City. This Franchise shall
terminate on August 3, 2036, unless extended by mutual consent.
ARTICLE 3
CITY POLICE POWERS
§3.1 Police Powers. The Company expressly acknowledges the City's right to adopt, from time
to time,in addition to the provisions contained herein, such laws, including ordinances and
regulations, as it may deem necessary in the exercise of its governmental powers. If the
City considers making any substantive changes in its local codes or regulations that in the
City's reasonable opinion will significantly impact the Company's operations in the City's
Streets, Public Utility Easements and Other City Property, it will 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 regulations concerning the Company's access to or use of the Streets
and Other City Property including requirements for permits, as applicable, prior to
commencing any work contemplated by this Franchise Agreement.
§3.3 Compliance with Laws. The Company shall promptly and fully comply with all laws,
regulations, permits and orders enacted by the City that are consistent with Industry
Standards. Nothing herein provided shall prevent the Company from legally challenging
or appealing the enactment of any laws,regulations,permits and orders enacted by the City.
The City does not waive its right to attempt to enforce its regulations through a court of
competent jurisdiction to the extent the regulations conflict with Industry Standards and
the Company reserves all rights to defend against any such enforcement actions.
ARTICLE 4
FRANCHISE FEE
§4.1 Franchise Fee.
A. Fee. In partial consideration for this Franchise, which provides the certain
terms related to the Company's use of City Streets, Public Utility Easements and Other
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City Property, which are valuable public properties acquired and maintained by the City at
great expense of its Residents, and in recognition of the fact that the grant to the Company
of this Franchise is a valuable right, the Company shall pay the City a sum equal to three
percent (3%) of all Gross Revenues. To the extent required by law, the Company shall
collect this fee from a surcharge upon City Residents who are customers of the Company.
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 this Franchise, an aggregate amount equal to the amount
that the Company would have paid as a franchise fee as partial consideration for use of the
City Streets, Public Utility Easements and Other City Property. Such payments shall be
made in accordance with applicable provisions of law. Further, to the extent required by
law, the Company shall collect the amounts agreed upon through a surcharge upon Utility
Service provided to City Residents who are customers of the Company.
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 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 of any such
initiatives or changes and to the extent pennitted by law, upon receiving a written request
from the City, the Company will cooperate with and assist the City in making reasonable
modifications of this Franchise in an effort to provide that the City receives an amount in
franchise fees or some other form of compensation that is the same amount of franchise
fees paid to the City as of the date that such initiatives and changes adversely impact
Franchise fee revenues.
D. Utility Service Provided to the City. No Franchise fee shall be charged to
the City for Utility Service provided directly or indirectly to the City for its own
consumption, unless otherwise directed by the City in writing and in a manner consistent
with Company policy.
§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 more than thirty
(30) days following the close of each month.
B. Correction of Franchise Fee Payments. In the event that either the City or
the Company discovers that there has been an error in the calculation of the Franchise fee
payment to the City, either party shall provide written notice of the error to the other party.
If the party receiving written notice of the error does not agree with the written notice of
error, that party may challenge the written notice of error pursuant to Section 4.2.D of this
Franchise; otherwise,the error shall be corrected in the next monthly payment. However,
subject to the terms of the Tariff, if the error results in an overpayment of the Franchise fee
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to the City, and said overpayment is in excess of Five Thousand Dollars ($5,000.00),
correction of the overpayment by the City shall take the form of a credit against future
Franchise fees and shall be spread over the same period the error was undiscovered or the
City shall make a refund payment to the Company. If such period would extend beyond
the term of this Franchise, the Company may elect to require the City to provide it with a
refund instead of a credit,with such refund to be spread over the same period the error was
undiscovered, even if the refund will be paid after the termination date of this Franchise.
All Franchise fee underpayments shall be corrected in the next monthly payment,together
with interest computed at the rate set by the PUC for customer security deposits held by the
Company,from the date when due until the date paid. Subject to the terms of the Tariffs, 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 five (5) years prior to the
discovery of the error.
C. Audit of Franchise Fee Payments.
(1) At the request of the City, every three (3)years commencing at the
end of the third year of this Franchise, the Company shall conduct an internal audit, in
accordance with the Company's auditing principles and policies that are applicable to
electric and gas utilities that are developed in accordance with the Institute of Internal
Auditors,to investigate and determine the correctness of the Franchise fee paid to the City.
Such audit shall be limited to the previous three (3) calendar years. The Company shall
provide a written report to the City Clerk summarizing the testing procedures followed
along with any potential findings.
(2) If the City disagrees with the results of the audit, and if the parties
are not able to informally resolve their differences,the City may conduct its own audit at its
own expense, in accordance with generally accepted auditing principles applicable to
electric and gas utilities, and the Company shall cooperate by providing the City's auditor
with non-confidential information that would be required to be disclosed under applicable
state sales and use tax laws.
(3) If the results of a City audit conducted pursuant to subsection C(2)
concludes that the Company has underpaid the City by three percent (3%) or more, in
addition to the obligation to pay such amounts to the City, the Company shall also pay all
reasonable costs of the City's audit. The Company shall not be responsible for any errors
in third party data that is used in association with audits, including without limitation,
Geotax data.
D. 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.
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E. Reports. To the extent allowed by law,upon written request by the City, but
not more than once per year, the Company shall supply the City with the names and
addresses of all registered gas suppliers and brokers of natural gas that utilize company
facilities to sell or distribute natural gas. The Company shall not be required to disclose
any confidential or proprietary information.
§4.3 Franchise Fee Payment not in Lieu of Permit or Other Fees. 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, except that the Franchise fee provided for herein
shall be in lieu of any occupation,occupancy or similar tax or fee for the use of City Streets,
Public Utility Easements and Other City Property under the terms set forth in this
Franchise.
ARTICLE 5
ADMINISTRATION OF FRANCHISE
§5.1 City Designee. The City Manager shall be the City official having full power and authority
to administer this Franchise. The City Manager 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 names and telephone
numbers of said City representatives. The City Manager 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 and Other City
Property.
§5.2 Company Designee. The Company shall designate a representative to act as the primary
liaison with the City and shall provide the City with the name, address, and telephone
number for the Company's representative under this Franchise. The Company may change
its designation by providing written notice to the City. The City shall use this liaison to
communicate with the Company regarding Utility Service and related service needs for
City facilities.
§5.3 Coordination of Work. The Company agrees to coordinate its activities in City Streets,
Public Utility Easements and Other City Property with the City. The City and the
Company will meet annually upon the written request of the City designee 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, including but not limited to any planned
City Streets paving projects. The City and Company shall hold such meetings as either
deems necessary to exchange additional information with a view toward coordinating their
respective activities in those areas where such coordination may prove beneficial and so
that the City will be assured that all applicable provisions of this Franchise, applicable
building and zoning codes, and applicable City air and water pollution regulations are
complied with, and that aesthetic and other relevant planning principles have been given
due consideration.
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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 that 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. Subject to the jurisdiction of the PUC, the Company shall take all reasonable and
necessary steps to provide a sufficient supply of gas to Residents at the lowest reasonable
cost consistent with reliable supplies.
§6.3 Charges to the City for Service to City Facilities. No charges to the City by the Company
for Utility Service (other than gas transportation which shall be subject to negotiated
contracts) shall exceed the lowest charge for similar service or supplies provided by the
Company to any other similarly situated customer of the Company. The parties
acknowledge the jurisdiction of the PUC over the Company's regulated intrastate gas rates.
All charges to the City shall be in accord with the Tariffs.
§6.4 Restoration of Service.
A. Notification. The Company shall provide to the City daytime and nighttime
telephone numbers of a designated Company representative from whom the City designee
may obtain status information from the Company on a twenty-four (24) hour basis
concerning interruptions of Utility Service in any part of the City.
B. Restoration. In the event the Company's gas system within the City, or any
part thereof, is partially or wholly destroyed or incapacitated, the Company shall use due
diligence to restore such system 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 and Other
City Property shall be maintained in good repair and condition.
B. Company Work within the City. All work within City Streets and Other
City Property performed or caused to be performed by the Company shall be done:
(1) in a high-quality manner that is in accordance with Industry
Standards;
(2) in a timely and expeditious manner;
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(3) in a manner that reasonably minimizes inconvenience to the public;
(4) in a cost-effective manner,which may include the use of qualified
contractors; and
(5) in accordance with all applicable laws, ordinances and regulations
and permits that are consistent with Industry Standards and the
Tariffs.
C. No Interference with City Facilities. Company Facilities shall not
unreasonably interfere with any City facilities, including water facilities, sanitary or storm
sewer facilities, communications facilities, or other City uses of the Streets, Public Utility
Easements or Other City Property. Company Facilities shall be installed and maintained in
City Streets and Other City Property so as to reasonably minimize interference with other
property, trees, and other improvements and natural features in and adjoining the Streets
and Other City Property in light of the Company's obligation under Colorado law to
provide safe and reliable utility facilities and services. Company Facilities shall not be
installed on any Other City Property absent the express written consent of the City.
D. Permit and Inspection. The installation,renovation,and replacement of any
Company Facilities in the City Streets or Other City Property by or on behalf of the
Company shall be subject to permit, inspection and approval by the City in accordance
with applicable laws. Such permitting, inspection and approval may include, but shall not
be limited to,the following matters: location of Company Facilities,cutting and pruning of
trees and shrubs and disturbance of pavement, sidewalks and surfaces of City Streets or
Other City Property; provided, however, the Company shall have the right to cut, prune,
and/or remove vegetation in accordance with its standard vegetation management
requirements and procedures. The Company agrees to cooperate with the City in
conducting inspections and shall promptly perform any remedial action lawfully required
by the City pursuant to any such inspection that is consistent with Industry Standards.
E. Compliance. Subject to the provisions of Section 3.3,the Company and all
of its contractors shall comply with the requirements of applicable municipal laws,
ordinances, regulations, permits, and standards lawfully adopted that are consistent with
Industry 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 use commercially reasonable efforts to require
that its contractors working in City Streets and Other City Property hold the necessary
licenses and permits required by law.
F. As-Built Drawings. Within thirty(30)days after written request of the City
designee, but no sooner than fourteen (14) days after project completion, the Company
shall commence its internal process to permit the Company to provide, on a project by
project basis,as-built drawings of any Company Facility installed within the City Streets or
contiguous to the City Streets. If the requested information must be limited or cannot be
provided pursuant to regulatory requirements or Company data privacy policies, the
Company shall promptly notify the City of such restrictions. The City acknowledges that
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the requested information is confidential information of the Company and the Company
asserts that disclosure to members of the public would be contrary to the public interest.
Accordingly, the City shall deny the right of inspection of the Company's confidential
information as set forth in C.R.S. §24-72-204(3)(a)(IV), as may be amended from time to
time. 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 immediately 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.
Provided the City complies with the terms of this Section, the Company shall defend,
indemnify and hold the City harmless from any claim,judgment, costs or attorney fees
incurred in participating in such proceeding. As used in this Section, as-built drawings
refers to hard copies of the facility drawings as maintained in the Company's business
records and shall not include information maintained in the Company's geographical
information system. The Company shall not be required to create drawings that do not
exist at the time of the request.
§6.6 Excavation and Construction. The Company shall be responsible for obtaining,paying for,
and complying with all applicable permits, in the manner required by the laws,ordinances,
and regulations of the City,to the extent consistent with Industry Standards. Although the
Company shall be responsible for obtaining and complying with the terms of such permits
when performing Relocations requested by the City under Section 6.8 of this Franchise,the
City will not require the Company to pay the fees charged for such permits. Upon the
Company submitting a construction design plan, the City shall promptly and fully advise
the Company in writing of all requirements for restoration of City Streets in advance of
Company excavation projects in City Streets, based upon the design submitted.
§6.7 Restoration. Subject to the provisions of Section 6.5.D,when the Company does any work
in or affecting the City Streets or Other City Property,or any landscaping or improvements
therein disturbed by Company activities, it shall, at its own expense,promptly remove any
obstructions placed thereon or therein by the Company and restore such City Streets or
Other City Property and landscaping and other improvements therein disturbed by
Company activities to a condition that is substantially the same as existed before the work,
and that meets applicable City standards. If weather or other conditions do not permit the
complete and prompt restoration required by this Section, the Company may with the
approval of the City, temporarily restore the affected City Streets or Other City Property,
provided that such temporary restoration is not at the City's expense 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 Company work was undertaken, provided that the
City shall be responsible for any incremental costs of such restoration not required by
then-current City standards, and provided the City seeks and/or grants, as applicable, any
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additional required approvals. If the Company fails to promptly restore the City Streets or
Other City Property and landscaping and improvements disturbed by Company activities
as required by this Section,and if, in the reasonable discretion of the City immediate action
is required for the protection of public health, safety or welfare, the City may restore such
Streets or Other City Property, or remove the obstruction therefrom; provided however,
City actions do not 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
and landscaping and improvements therein disturbed by Company activities or to remove
any obstructions therefrom. In the course of its restoration of City Streets, Public Utility
Easements 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.
§6.8 Relocation of Company Facilities.
A. Relocation Obligation. The Company shall temporarily or permanently
relocate, change or alter the position of any Company Facility(collectively, "Relocate(s),"
"Relocation(s)" or "Relocated") in City Streets or in Other City Property at no cost or
expense to the City whenever such Relocation is necessary for the completion of any
Public Project. In the case of Relocation that is necessary for the completion of any Public
Project in a Public Utility Easement, the Company shall not be responsible for any
Relocation costs. In the event of any Relocation contemplated pursuant to this Section
6.8.A, the Company and the City agree to cooperate on the location and Relocation of the
Company Facilities in the City Streets or Other City Property in order to achieve
Relocation in the most efficient and cost-effective manner possible. 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(2)years,the
subsequent Relocation shall not be at the Company's expense. Nothing provided herein
shall prevent the Company from obtaining reimbursement of its Relocation costs from
third parties.
B. Private Projects. Subject to Section 6.8.F, 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
party causing, or responsible for,the Relocation before undertaking the Relocation.
C. Relocation Performance. The Relocations set forth in Section 6.8.A of this
Franchise shall be completed within a reasonable time, not to exceed one hundred twenty
(120) days from the later of the date on which the City designee requests, in writing, that
the Relocation commence, or the date when the Company is provided all Supporting
Documentation. The Company shall receive an extension of time to complete a Relocation
where the Company's performance was delayed due to Force Majeure or the failure of the
City to provide adequate Supporting Documentation. The Company has the burden of
presenting evidence to reasonably demonstrate the basis for the delay. Upon written
request of the Company, the City may also grant the Company reasonable extensions of
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time for good cause shown and the City shall not unreasonably withhold or condition any
such extension.
D. 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 Company Facility Relocation shall
be deemed good cause for a reasonable extension of time to complete the Relocation under
this Franchise.
E. Completion. Each such Relocation shall be complete only when the
Company actually Relocates the Company Facilities, restores the Relocation site in
accordance with Section 6.7 of this Franchise or as otherwise agreed with the City, and
Company has removed from the site or properly abandons on site all unused Company
Facilities, equipment,material and other impediments.
F. Scope of Obligation. Notwithstanding anything to the contrary in this
Franchise, the Company shall not be required to Relocate any Company Facilities from
property (a) owned by the Company in fee; or (b) in which the Company has a property
right, grant or interest, including without limitation an easement.
G. Underground Relocation. Underground Company Facilities shall be
Relocated underground. Above ground Company Facilities shall be Relocated above
ground unless the Company is paid for the incremental amount by which the underground
cost would exceed the above ground cost of Relocation.
H. Coordination.
(1) When requested in writing by the City designee or the Company,
representatives of the City and the Company shall meet to share information
regarding anticipated projects which will require Relocation of Company
Facilities in City Streets. Such meetings shall be for the purpose of
minimizing conflicts where possible and to facilitate coordination with any
reasonable timetable established by the City for any Public Project.
(2) The City shall make reasonable best efforts to provide the Company
with two (2) years advance notice of any planned Street repaving. The
Company shall make reasonable best efforts to complete any necessary or
anticipated repairs or upgrades to Company Facilities that are located
underneath the Streets within the two-year period if practicable.
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. The City shall in good faith review the
proposed alternative or modification. The acceptance of the proposed alternative or
modification shall be at the sole discretion of the City. In the event the City accepts the
proposed alternative or modification, the Company agrees to promptly compensate the
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City for all additional costs,expenses or delay that the City reasonably determines resulted
from the implementation of the proposed alternative.
§6.9 New or Modified Service Requested by City. The conditions under which the Company
shall install new or modified Utility Service to the City as a customer shall be governed by
this Franchise and the Company's Tariffs and the Tariffs shall control in the event of a
conflict.
§6.10 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, extend service to
Residents in the expanded area at the earliest practicable time if the expanded area is within
the Company's PUC-certificated service territory. Service to the expanded area shall be in
accordance with the terms of the Tariffs and this Franchise, including the payment of
Franchise fees.
§6.11 City Not Required to Advance Funds if Permitted by Tariffs. Upon receipt of the City's
authorization for billing and construction, the Company shall install 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 installation of Company Facilities
once completed in accordance with the Tariffs. Notwithstanding anything to the contrary,
the provisions of this Section allowing the City to not advance funds prior to construction
shall only apply to the extent permitted by the Tariffs.
§6.12 Technological Improvements. The Company shall use its best efforts to incorporate, as
soon as practicable, technological advances in its equipment and service within the City
when such advances are technically and economically feasible and are safe and beneficial
to the City and its Residents.
ARTICLE 7
RELIABILITY
§7.1 Reliability. The Company shall operate and maintain Company Facilities efficiently and
economically,in accordance with Industry Standards, and in accordance with the systems,
methods and skills consistent with the provision of adequate, safe and reliable Utility
Service.
§7.2 Franchise Performance Obligations. The Company recognizes that, as part of its
obligations and commitments under this Franchise,the Company shall carry out each of its
performance obligations in a timely, expeditious, efficient, economical and workmanlike
manner.
§7.3 Reliability Reports. Upon written request, the Company shall provide the City with a
report regarding the reliability of Company Facilities and Utility Service.
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t E.
ARTICLE 8
COMPANY PERFORMANCE OBLIGATIONS
§8.1 New or Modified Service to City Facilities. In providing new or modified Utility Service
to City facilities, the Company agrees to perform as follows:
A. Performance. The Company shall complete each project requested by the
City within a reasonable time. The parties agree that a reasonable time shall not exceed one
hundred eighty (180) days from the date upon which the City designee makes a written
request and provides the required Supporting Documentation for all Company Facilities
other than traffic facilities. The Company shall be entitled to an extension of time to
complete a project where the Company's performance was delayed due to Force Majeure.
Upon request of the Company, the City designee may also grant the Company reasonable
extensions of time for good cause shown and the City shall not unreasonably withhold any
such extension.
B. 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 substantially change its plans regarding new or modified
service to City facilities shall be deemed good cause for a reasonable extension of time to
complete the Relocation under this Franchise. At the request of the City, the Company
shall promptly advise the City of any claimed extension under this provision, including the
estimated length of the claimed exemption.
C. Completion/Restoration. Each such project shall be complete only when
the Company actually provides the service installation or modification required, restores
the project site in accordance with the terms of this Franchise or as otherwise agreed with
the City and properly abandons on site any unused Company Facilities, equipment,
material and other impediments.
§8.2 Adjustments to Company Facilities. The Company shall perform adjustments to Company
Facilities, including manhole rings and other appurtenances in Streets and Other City
Property to accommodate City Street maintenance, repair and paving 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,not to exceed thirty(30) days from the date upon which the City
makes a written request and provides to the Company all information reasonably necessary
to perform the adjustment. The Company shall be entitled to an extension of time to
complete an adjustment where the Company's performance was delayed due to Force
Majeure. Upon request of the Company,the City may also grant the Company reasonable
extensions of time for good cause shown and the City shall not unreasonably withhold any
such extension.
B. Completion/Restoration. Each such adjustment shall be complete only
when the Company actually adjusts and, if required, readjusts, Company Facilities to
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accommodate City operations in accordance with City instructions 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 Street maintenance 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 individual or entity damages any
Company Facilities, upon the Company's request, and to the extent permitted by law, the
City will notify the Company of any such incident of which it has knowledge and 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
individual or entity.
B. Damage to Company Property for which the City is Responsible. If any
individual or entity damages any Company Facilities for which the City is obligated to
reimburse the Company for the cost of the repair or replacement,to the extent permitted by
law, the Company will notify the City of any such incident of which it has knowledge 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
individual or entity.
C. Meeting. The Company and the City agree to meet periodically upon
written request of either party for the purpose of developing, implementing, reviewing,
improving and/or modifying mutually beneficial procedures and methods for the efficient
gathering and transmittal of information useful in recovery efforts against third parties for
damaging Company Facilities.
ARTICLE 9
BILLING AND PAYMENT
§9.1 Billing for Utility Services.
A. Monthly Billing. Unless otherwise provided in the Tariffs, the rules and
regulations of the PUC,or the Public Utility Law, the Company shall render bills monthly
to the offices of the City for Utility Service and other related services for which the
Company is entitled to payment.
B. Address for Billing. Billings for service rendered during the preceding
month shall be sent to the person(s)designated by the City and payment for same shall be
made as prescribed in this Franchise and the applicable Tariffs.
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C. Supporting Documents. To the extent requested by the City, the Company
shall provide all billings and any underlying Supporting Documentation reasonably
requested by the City in an editable and manipulatable electronic format that is acceptable
to the Company and the City.
D. Annual Meetings. The Company agrees to meet with the City designee on a
reasonable basis at the City's request, but no more frequently than once a year, for the
purpose of developing, implementing, reviewing, and/or 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.
§9.2 Payment to City. In the event the City determines after written notice to the Company that
the Company is liable to the City for payments, costs, expenses or damages of any nature,
and subject to the Company's right to challenge such determination, the City may deduct
all monies due and owing the City from any other amounts currently due and owing the
Company. Upon receipt of such written notice, the Company may request a meeting
between the Company's designee and a designee of the City to discuss such determination.
The City agrees to attend such a meeting. As an alternative to such deduction and subject
to the Company's right to challenge,the City may bill the Company for such assessment(s),
in which case, the Company shall pay each such bill within thirty(30) days of the date of
receipt of such bill unless it challenges the validity of the charge. If the Company
challenges the City determination of liability, the City shall make such payments to the
Company for Utility Service received by City pursuant to the Tariffs until the challenge has
been finally resolved.
ARTICLE 10
PURCHASE OR CONDEMNATION
§10.1 Municipal Right to Purchase or Condemn.
A. Right and Privilege of City. The right and privilege of the City to construct,
own and operate a municipal utility, and to purchase pursuant to a mutually acceptable
agreement 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, statutes and case law of the State of Colorado relating to the
acquisition of public utilities, are expressly recognized. The City shall have the right,
within the time frames and in accordance with the procedures set forth in such provisions,
to condemn 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 condemnation, no value shall be ascribed or given to the right to use City Streets
or Other City Property granted under this Franchise in the valuation of the property thus
taken.
B. Notice of Intent to Purchase or Condemn. The City shall provide the
Company no less than one (1) year's prior written notice of its intent to purchase or
condemn Company Facilities. Nothing in this Section shall be deemed or construed to
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constitute a consent by the Company to the City's purchase or condemnation of Company
Facilities, nor a waiver of any Company defenses or challenges related thereto.
ARTICLE 11
TRANSFER OF FRANCHISE
§11.1 Consent of City Required. The Company shall not transfer or assign any rights under this
Franchise to an unaffiliated third party, except by merger with such third party, or, except
when the transfer is made in response to legislation or regulatory requirements, unless the
City approves such transfer or assignment in writing. Approval of the transfer or
assignment shall not be unreasonably withheld, conditioned or delayed.
§11.2. 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 the proportion
of the City's then-population provided Utility Service by the Company to the
then-population of the City and County of Denver provided Utility Service by the
Company multiplied by one million dollars($1,000,000.00). Except as otherwise required
by law,such transfer fee shall not be recovered from a surcharge placed only on the rates of
Residents.
ARTICLE 12
CONTINUATION OF UTILITY SERVICE
§12.1 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 obligation to remove any Company Facilities
from Streets, Public Utility Easements or Other City Property or discontinue providing
Utility Service unless otherwise ordered by the PUC, and shall continue to provide Utility
Service within the City until the City arranges for utility service from another provider.
The City acknowledges and agrees that the Company has the right to use Streets, Other
City Property and Public Utility Easements during any such period. The Company further
agrees that it will not withhold any temporary Utility Services necessary to protect the
public. The City agrees that in the circumstances of this Article, the Company shall be
entitled to monetary compensation as provided in the Tariffs and the Company shall be
entitled to collect from Residents and, upon the City's compliance with applicable
provisions of law, shall be obligated to pay the City, at the same times and in the same
manner as provided in this 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
and Other City Property. Only upon receipt of written notice from the City stating that the
City has adequate alternative utility service for Residents and upon order of the PUC shall
the Company be allowed to discontinue the provision of Utility Service to the City and its
Residents.
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•
ARTICLE 13
INDEMNIFICATION AND IMMUNITY
§13.1 City Held Harmless. The Company shall indemnify, defend and hold the City harmless
from and against claims, demands, liens and all liability or damage of whatsoever kind on
account of or directly arising from the grant of this Franchise,the exercise by the Company
of the related rights, but in both instances only to the extent caused by the Company, 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 reasonably satisfactory to the City. If such defense is assumed by the
Company,the Company shall not be subject to 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 out of or in connection with any negligent or
intentional act or failure to act of the City or any of its officers, agents or employees or to
the extent that the City is acting in its capacity as a customer of record of the Company.
§13.2 Immunity. Nothing in this Section or any other provision of this Franchise shall be
construed as a waiver of the notice requirements, defenses, immunities and limitations the
City may have under the Colorado Governmental Immunity Act (§24-10-101, C.R.S., et.
seq.)or of any other defenses, immunities,or limitations of liability available to the City by
law.
ARTICLE 14
BREACH
§14.1 Change of Tariffs. The City and the Company agree to take all reasonable and necessary
actions to assure that the terms of this Franchise are performed. The Company reserves the
right to seek a change in its Tariffs, including but not limited to the rates, charges, terms,
and conditions of providing Utility Service to the City and its Residents, and the City
retains all rights that it may have to intervene and participate in any such proceedings.
§14.2 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 thirty (30)days
in which to remedy the Breach or, if such Breach cannot be remedied in thirty (30) days,
such additional time as reasonably needed to remedy the Breach, but not exceeding an
additional thirty (30) day period, or such other time as the parties may agree. If the
18
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 to the
extent allowed by law; and
(2) recovery of actual damages from the date of such Breach incurred
by the Non-Breaching Party in connection with the Breach, but excluding
any special, punitive or consequential damages.
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 in which to remedy the Material Breach or,if such Material Breach
cannot be remedied in ninety (90) days, such additional time as reasonably needed to
remedy the Material Breach, but not exceeding an additional ninety (90) day period, or
such other time as the parties may agree. If the Company does not remedy the Material
Breach within the time allowed in the notice,the City may,at its sole option,terminate this
Franchise. This remedy shall be in addition to the City's right to exercise any of the
remedies provided for elsewhere in this Franchise. Upon such termination, the Company
shall continue to provide Utility Service to the City and its Residents(and shall continue to
have associated rights and grants needed to provide such service) until the City makes
alternative arrangements for such service and until otherwise ordered by the PUC and the
Company shall be entitled to collect from Residents and, upon the City complying with
applicable provisions of law,shall be obligated to pay the City,at the same times and in the
same manner as provided in this Franchise, an aggregate amount equal to the amount
which the Company would have paid as a franchise fee as consideration for use of the City
Streets and Other City Property. Unless otherwise provided by law,the Company shall be
entitled to collect such amount from Residents.
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.
ARTICLE 15
AMENDMENTS
§15.1 Proposed Amendments. At any time during the term of this Franchise, the City or the
Company may propose amendments to this Franchise by giving thirty (30) days written
notice to the other of the proposed amendment(s) desired, and both parties thereafter,
through their designated representatives, will, within a reasonable time, negotiate in good
faith in an effort to agree upon mutually satisfactory amendment(s). However, nothing
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contained in this Section shall be deemed to require either party to consent to any
amendment proposed by the other party.
§15.2 Effective Amendments. No alterations, amendments or modifications to this Franchise
shall be valid unless executed in writing by the parties, which alterations, amendments or
modifications shall be adopted with the same formality used in adopting this Franchise, to
the extent required by law. Neither this Franchise, nor any term herein, may be changed,
modified or abandoned, in whole or in part, except by an instrument in writing, and no
subsequent oral agreement shall have any validity whatsoever.
ARTICLE 16
EQUAL OPPORTUNITY
§16.1 Economic Development. The Company is committed to the principle of stimulating,
cultivating and strengthening the participation and representation of persons of color,
women and members of other under-represented groups within the Company and in the
local business community. The Company believes that increased participation and
representation of under-represented groups will lead to mutual and sustainable benefits for
the local economy. The Company is committed also to the principle that the success and
economic well-being of the Company is closely tied to the economic strength and vitality
of the diverse communities and people it serves. The Company believes that contributing
to the development of a viable and sustainable economic base among all Company
customers is in the best interests of the Company and its shareholders.
§16.2 Employment.
A. Programs. The Company is committed to undertaking programs that
identify, consider and develop persons of color, women and members of other
under-represented groups for positions at all skill and management levels within the
Company.
B. Businesses. The Company recognizes that the City and the business
community in the City, including women and minority owned businesses, provide a
valuable resource in assisting the Company to develop programs to promote persons of
color,women and members of under-represented communities into management positions,
and agrees to keep the City regularly advised of the Company's progress by providing the
City a copy of the Company's annual affirmative action report upon the City's written
request.
C. Recruitment. In order to enhance the diversity of the employees of the
Company,the Company is committed to recruiting diverse employees by strategies such as
partnering with colleges, universities and technical schools with diverse student
populations, utilizing diversity-specific media to advertise employment opportunities,
internships, and engaging recruiting firms with diversity-specific expertise.
D. Advancement. The Company is committed to developing a world-class
workforce through the advancement of its employees, including persons of color, women
20
and members of under-represented groups. In order to enhance opportunities for
advancement, the Company will offer training and development opportunities for its
employees. Such programs may include mentoring programs, training programs,
classroom training and leadership programs.
E. Non-Discrimination. The Company is committed to a workplace free of
discrimination based on race, color, religion, national origin, gender, age, military status,
sexual orientation, marital status, or physical or mental disability or any other protected
status in accordance with all federal, state or local laws. The Company shall not, solely
because of race, creed, color, religion, sex, age, national origin or ancestry or handicap,
refuse to hire, discharge, promote, demote or discriminate in matters of compensation,
against any person otherwise qualified.
F. Board of Directors. The Company shall identify and consider women,
persons of color and other under-represented groups to recommend for its Board of
Directors, consistent with the responsibility of boards to represent the interests of the
Shareholders, customers and employees of the Company.
§16.3 Contracting.
A. Contracts. It is the Company's policy to make available to minority and
women owned business enterprises and other small and/or disadvantaged business
enterprises the maximum practical opportunity to compete with other service providers,
contractors, vendors and suppliers in the marketplace. The Company is committed to
increasing the proportion of Company contracts awarded to minority and women owned
business enterprises and other small and/or disadvantaged business enterprises for
services, construction, equipment and supplies to the maximum extent consistent with the
efficient and economical operation of the Company.
B. Community Outreach. The Company agrees to maintain and continuously
develop contracting and community outreach programs calculated to enhance
opportunity and increase the participation of minority and women owned business
enterprises and other small and/or disadvantaged business enterprises to encourage
economic vitality. The Company agrees to keep the City regularly advised of the
Company's programs.
C. Community Development. The Company shall maintain and support
partnerships with local chambers of commerce and business organizations, including those
representing predominatly minority owned, women owned and disadvantaged businesses,
to preserve and strengthen open communication channels and enhance opportunities for
minority owned, women owned and disadvantaged businesses to contract with the
Company.
§16.4 Coordination. City agencies provide collaborative leadership and mutual opportunities or
programs relating to City based initiatives on economic development, employment and
contracting opportunity. The Company agrees to review Company programs and mutual
opportunities responsive to this Article with these agencies, upon their request, and to
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collaborate on best practices regarding such programs and coordinate and cooperate with
the agencies in program implementation.
ARTICLE 17
MISCELLANEOUS
§1.7.1 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.
§17.2 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 11 of this
Franchise. Upon a transfer or assignment pursuant to Article 11, the Company shall be
relieved from all liability from and after the date of such transfer.
§17.3 Third Parties. Nothing contained in this Franchise shall be construed to provide rights to
third parties.
§17.4 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,reputable overnight courier 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. Notice shall be deemed received (a)
three(3)days after being mailed via the U.S.Postal Service, (b)one(1) business day after
mailed if via reputable overnight courier,or(c) upon hand delivery if delivered by courier.
Until any such change shall hereafter be made, notices shall be sent as follows:
To the City:
City Manager
City of Pueblo
200 S. Main Street
Pueblo, CO 81003
With a copy to:
City Attorney
City of Pueblo
1 City Hall Place, Third Floor
Pueblo, CO 81003
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To the Company:
Regional Vice President, Customer and Community Relations
Public Service Company of Colorado
P.O. Box 840
Denver, Colorado 80201
With a copy to:
Legal Department
Public Service Company of Colorado
P.O. Box 840
Denver, Colorado 80201
and
Area Manager
Public Service Company of Colorado
615 West Street
Pueblo, CO 81003
§17.5 Examination of RecordsThe parties agree that any duly authorized representative of the
City and the Company shall have access to and the right to examine any directly pertinent
non-confidential books, documents, papers, and records of the other party involving any
activities related to this Franchise. All such records must be kept for a minimum of the
lesser of three (3) years or the time period permitted by a party's record retention policy.
To the extent that either party believes in good faith that it is necessary in order to monitor
compliance with the terms of this Franchise to examine confidential books, documents,
papers, and records of the other party, the parties agree to meet and discuss providing
confidential materials, including but not limited to providing such materials subject to a
reasonable confidentiality agreement that effectively protects the confidentiality of such
materials and complies with PUC rules and regulations.
§17.6 List of Utility Property. The Company shall provide the City, upon request not more than
once every two(2)years,a list of utility-related real property owned in fee by the Company
within the County in which the City is located. All such records must be kept for a
minimum of three(3)years or such shorter duration if required by Company policy.
§17.7 PUC Filings. Upon written request by the City, the Company shall provide the City
non-confidential copies of all applications, advice letters and periodic reports, together
with any accompanying non-confidential testimony and exhibits, filed by the Company
with the Public Utilities Commission. Notwithstanding the foregoing, notice regarding
any gas filings that may affect Utility Service rates in the City shall be sent to the City upon
filing.
§17.8 Information. Upon written request, the Company shall provide the City Manager or the
City Manager's designee with:
A. A copy of the Company's or its parent company's consolidated annual
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financial report, or alternatively, a URL link to a location where the same information is
available on the Company's website;
B. Maps or schematics indicating the location of specific Company Facilities
(subject to City executing a confidentiality agreement as required by Company policy),
including gas 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 does not represent or warrant the accuracy of any such maps or schematics; and
C. 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.
§17.9 Payment of Taxes and Fees.
A. Impositions. Except as otherwise provided herein,the Company shall pay and
discharge as they become due, promptly and before delinquency, all taxes, assessments,
rates, charges, license fees, municipal liens, levies, excises, or imposts,whether general or
special, or ordinary or extraordinary, 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
Franchise ("Impositions"), provided that the Company shall have the right to contest any
such Impositions and shall not be in breach of this Section so long as it is actively
contesting such Impositions.
B. City Liability. The City shall not be liable for the payment of late charges,
interest or penalties of any nature other than pursuant to applicable Tariffs.
§17.10 Conflict of Interest. The parties agree that no official,officer or employee of the City shall
have any personal or beneficial interest whatsoever in the services or property described
herein and the Company further agrees not to hire or contract for services any official,
officer or employee of the City to the extent prohibited by law, including ordinances and
regulations of the City.
§17.11 Certificate of Public Convenience and Necessity. The City agrees to support the
Company's application to the PUC to obtain a Certificate of Public Convenience and
Necessity to exercise its rights and obligations under this Franchise.
§17.12 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
Franchise on behalf of the parties and to bind the parties to its terms. The persons
executing this Franchise on behalf of each of the parties warrant that they have full
authorization to execute this Franchise. The City acknowledges that notwithstanding the
foregoing, the Company requires a Certificate of Public Convenience and Necessity from
the PUC in order to operate under the terms of this Franchise.
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§17.13 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; provided, however, to the extent allowed by law, the parties shall
forthwith enter into good faith negotiations and proceed with due diligence to draft one or
more substitute provisions that will achieve the original intent of the parties hereunder.
§17.14 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
herein.
§17.15 Earlier Franchises Superseded. This Franchise shall constitute the only franchise between
the City and the Company related to the furnishing of Utility Service,and it supersedes and
cancels all former franchises between the parties hereto.
§17.16 Titles Not Controlling. Titles of the paragraphs herein are for reference only, and shall not
be used to construe the language of this Franchise.
§17.17 Applicable Law. Colorado law shall apply to the construction and enforcement of this
Franchise. The parties agree that venue for any litigation arising out of this Franchise shall
be in the District Court for Pueblo County, State of Colorado.
§17.18 Payment of Expenses Incurred by City in Relation to Franchise Agreement. The Company
shall pay for expenses reasonably incurred by the City for the adoption of this Franchise,
including the publication of notices, publication of ordinances,the cost of an election, and
photocopying of documents.
§17.19 Costs of Compliance with.Franchise. The parties acknowledge that PUC rules,regulations
and final decisions may require that costs of complying with certain provisions of this
Franchise be borne by customers of the Company who are located within the City.
§17.20 Conveyance of City Streets,Public Utility Easements or Other City Property. In the event
the City vacates,releases,sells,conveys,transfers or otherwise disposes of a City Street,or
any portion of a Public Utility Easement or Other City Property in which Company
Facilities are located,the City shall reserve an easement in favor of the Company over that
portion of the Street, Public Utility Easement or Other City Property in which such
Company Facilities are located. The Company and the City shall work together to prepare
the necessary legal description to effectuate such reservation. For the purposes of Section
6.8.A of this Franchise,the land vacated,released,sold,conveyed,transferred or otherwise
disposed of by the City shall no longer be deemed to be a Street or Other City Property
from which the City may demand the Company temporarily or permanently Relocate
Company Facilities at the Company's expense.
§17.21 Audit. For any audits specifically allowed under this Franchise, such audits shall be
subject to the Tariff and PUC rules and regulations. Audits in which the auditor is
compensated on the basis of a contingency fee arrangement shall not be permitted.
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§17.22 Land Use Coordination. The City shall coordinate with the Company regarding its land
use planning. This coordination shall include meeting with the Company and identifying
areas for future utility development.
(Signature pages follow.)
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IN WITNESS WHEREOF,the parties have caused this Franchise to be executed as of the
day and year first above written.
CITY OF PUEBLO, a Municipal
Corporation
[Seal]
ATTEST: . 7
'
Y:
President of the City Council
Cit c lerk
APPROVED AS TO FORM:
GkAA/Lj :K/C7f6V4i
City Attorney, City of Pueblo
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PUBLIC SERVICE COMPANY OF
COLORADO,a Colorado corporation
By: Or
Jeroi s Davis, Regional Vice President,
Cu-Omer and Community Relations
STATE OF COLORADO )
)SS.
COUNTY OF DENVER )
--�" 'he foregoing instrument was acknowledged before me this day of
t� , 2016 by Jerome Davis, Regional Vice President, Customer and
Commune Relations of Public Service Company of Colorado, a Colorado corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
I!otary Public /
My Commission expires rl 2'0 11 e
BARBARA HAMBLIN
NOTARY
STATE OF COLORADO Reviewed
NOTARY ID# 19974007884
MY COMMISSION EXPIRES JULY 30 2016
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