5. Franchise For Electricity
11/06 16-5-1 16-5-1
FRANCHISE FOR ELECTRICITY
16-5-2: GRANT OF FRANCHISE
16-5-3: STREET LIGHTING SERVICE
16-5-4: TERM OF FRANCHISE
16-5-5: FRANCHISE FEE
16-5-6: PAYMENT SCHEDULE
16-5-7: CHANGE IN FRANCHISE FEE AND OTHER FRANCHISE TERMS
16-5-8: FRANCHISE FEE IN LIEU OF OTHER FEES
16-5-9: CONTRACT OBLIGATION
16-5-10: ADEQUATE SUPPLY AT LOWEST REASONABLE COSTS
16-5-11: OBLIGATIONS REGARDING COMPANY FACILITIES
16-5-12: EXCAVATION AND CONSTRUCTION
16-5-13: RELOCATION OF COMPANY FACILITIES
16-5-14: SERVICE TO NEW AREAS
16-5-15: CITY NOT REQUIRED TO ADVANCE FUNDS
16-5-16: TECHNOLOGICAL IMPROVEMENTS
16-5-17: CITY REGULATION
16-5-18: COMPLIANCE WITH CITY REQUIREMENTS
16-5-19: CITY REVIEW OF CONSTRUCTION AND DESIGN
16-5-20: COMPLIANCE WITH PUC REGULATIONS
16-5-21: COMPLIANCE WITH AIR AND WATER POLLUTION LAWS
16-5-23: REPORTS ON COMPANY OPERATIONS
16-5-24: COPIES OF TARIFFS, ALL PUC FILINGS
16-5-25: DETAILED BILLS
16-5-26: CITY USE OF COMPANY FACILITIES
16-5-27: UNDERGROUND CONDUIT:
16-5-28: USE OF COMPANY RIGHT-OF-WAY FACILITIES
16-5-29: JOINT USE
16-5-30: CITY HELD HARMLESS
16-5-31: NOTICE TO COMPANY
16-5-32: FINANCIAL RESPONSIBILITY
16-5-33: PAYMENT OF EXPENSES INCURRED BY CITY IN RELATION TO ORDINANCE
16-5-34: BREACH OF CONTRACT
16-5-35: UNDERGROUND ELECTRICAL DISTRIBUTION LINES IN NEW AREAS
16-5-36: OVERHEAD CONVERSION AT EXPENSE OF COMPANY
16-5-37: REVIEW OF UNDERGROUNDING PROGRAM
16-5-38: COOPERATION WITH OTHER UTILITIES
16-5-39: CONSENT OF CITY TO TRANSFER OF FRANCHISE
16-5-40: TRANSFER FEE
16-5-41: RIGHT OF FIRST PURCHASE
16-5-42: CITY'S RIGHT TO PURCHASE OR CONDEMN
16-5-43: NEGOTIATED PURCHASE PRICE OF CONDEMNATION AWARD
16-5-44: CONTINUED COOPERATION BY COMPANY
16-5-45: LIMITATIONS OF COMPANY REMOVAL OF FACILITIES
16-5-46: COMPANY TO PURCHASE CITY-PRODUCED POWER
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16-5-49: JUDICAL REVIEW
16-5-50: OTHER LEGAL REMEDIES
16-5-51: CONTINUED OBLIGATIONS
16-5-52: AMENDMENTS TO FRANCHISE
16-5-53: NO WAIVER
16-5-54: SUCCESSORS AND ASSIGNS
16-5-57: ENTIRE AGREEMENT
16-5-58: COMPANY APPROVAL
16-5-59: ANNEXATION TO THE CITY
16-5-60: THIRD PARTIES
16-5-1: DEFINITIONS: (2107) For the purpose of this franchise, the following words and phrases shall have the meaning given in this Section. When not inconsistent with the context, words used in the present tense include future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is mandatory and "may" is permissive. Words not defined in this Section shall be given their common and ordinary meaning.
"City" means the municipal corporation designated as the City of Westminster and includes the territory as currently is or may in the future be included within the boundaries of the City of Westminster.
"City Council" means the legislative body of the City.
"City Manager" means the City Manager of the City of Westminster or his designee.
"Company" means United Power, Inc., and its successors and assigns, but does not include its affiliates, subsidiaries or any other entity in which it has an ownership interest.
"Electricity" means all electric energy and electric service provided to the City, including street lighting services.
"Electric Distribution Facilities" means that portion of the Company's electric system which delivers electric energy from the substation breakers or transformers on Company's transmission lines to the point-of-delivery of the customer, including all devices connected to that system.
"Facilities" means all devices of the Company which are reasonably necessary to provide electricity into, within and through the City, including systems, substations, transmission and distribution structures, lines, street lighting fixtures, equipment, conduit, transformers, under ground lines, meters, wires, cables and poles.
"Franchise" means the rights and obligations of the City and the Company set forth in this franchise ordinance as same may be amended from time to time and includes those rights which are associated herewith under the laws of Colorado.
"Public Easements" means easements available for use by electric utilities, except for those privately owned by the Company.
"Public Streets" includes, but is not limited to, streets, medians, boulevards, roads, lanes, alleys, viaducts, bridges and public right-of-way that are deeded, dedicated or otherwise available for use to the City.
"PUC" means the Public Utilities Commission of the State of Colorado or other authority succeeding to the regulatory powers of the Public Utilities Commission.
"Residents" means all persons, businesses, industry, governmental agencies, and any other entity whatsoever, located, in whole or in part, within the territorial boundaries of the City that are or may be served by the Company hereunder.
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"Revenue" means those amounts of money which the Company receives from the:
A. Sale of electricity under authorized rates to residents as adjusted for refunds, the net write-off of uncollectible accounts, corrections or other regulatory adjustments, excluding revenues received from the City for street lighting service furnished to it.
B. Use by others of its facilities located within the City.
16-5-2: GRANT OF FRANCHISE: (2107)
(A) The City hereby grants to the Company, for the period specified in and subject to the conditions, terms and provisions contained in this franchise, a non-exclusive right to furnish, sell and distribute electricity to the City and its residents. Subject to the conditions, terms and provisions contained in this franchise, the City also hereby grants to the Company a non-exclusive right to acquire, construct, install, locate, maintain, operate and extend facilities into, within and through the City and a non-exclusive right to make use of the public streets and public easements as may be necessary to carry out the terms of this franchise. These rights shall extend to all areas annexed by the City from and after February 2, 1987, which are within the Company's PUC certificated territory as the same may exist from time to time.
(B) This franchise does not grant to the Company the right, privilege or authority to engage in the community antenna (or cable) television business, or any other business not related to the provision of electric utility sales and service although nothing herein contained shall preclude the Company from permitting those lawfully engaged in such business to utilize facilities for such purposes so long as the written approval of the City is first obtained by any such business.
(C) The right to use and occupy said public streets and public easements for the purposes herein set forth is not, and shall not be deemed to be, an exclusive franchise, and the City reserves the right to itself to make or grant a similar use of public streets and public easements to any other person, firm, or corporation.
16-5-3: STREET LIGHTING SERVICE: (2107) (A) The rights granted in this franchise encompass the non-exclusive right, duty and franchise to provide street lighting service to the City and the provisions of this franchise apply with full and equal force to the street lighting service provided by the Company.
16-5-4: TERM OF FRANCHISE: (2107 3322) (A) The term of this franchise shall be for twenty (20) years, beginning on January 1, 2007 and expiring on December 31, 2026.
16-5-5: FRANCHISE FEE: (2107) (A) As further consideration for the grant of this franchise, which provides for the use by the Company of public streets and public easements, 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 those public streets and public easements is a valuable right without which the Company would be required to invest substantial time and capital in right-of-way costs and acquisitions, the Company shall pay to the City a franchise fee in the amount of three percent (3%) of the annual revenue, as defined in Section 16-5-1 of this franchise and from the revenues accruing to the Company from the use by others of its facilities within the City. The franchise fee provided for herein shall constitute the exclusive monetary payment by the Company to the City for the Company's use and occupancy of public streets and public easements within the City except as specifically provided in this franchise.
16-5-6: PAYMENT SCHEDULE: (2107)
(A) For the franchise fee owed on revenues accruing to the Company after the effective date of this franchise from the sale of electricity, payment shall be made in monthly installments not more than thirty days following the close of the month for which payment is to be made. For the franchise fee owed on revenues accruing to the Company from the use by others of its utility facilities, payment shall be made within ninety (90) days after the close of the calendar year for which payment is being made. Initial and final payments shall be prorated for the portions of the months at the beginning and end of the term of this franchise. All payments shall be made to the City.
6/93 16-5-6(B) 16-5-10
(B) In the event an error by the Company results in an overpayment of the franchise fee to the City and said overpayment is in excess of $5,000, credit for the overpayment shall be spread over the same period the error was undiscovered. If the overpayment is $5,000 or less, credit shall be taken against the next payment. In the event an error by the Company results in an under payment of the franchise fee to the City, the Company shall repay the difference between the underpayment and the correct payment.
(C) The City shall have reasonable access to the books and records of the Company, as may be requested by the City from time to time, insofar as they reasonably relate to any matters covered by this franchise and to such reasonable and necessary reports containing or based on information readily obtainable from the Company's books and records with respect to the electricity supplied under this franchise.
(D) No charges to the City by the Company for any service or supply shall exceed the lowest charge for similar or identical service or supply provided by the Company to any other similarly situated customer or consumer of the Company.
16-5-7: CHANGE IN FRANCHISE FEE AND OTHER FRANCHISE TERMS: (2107) (A) Once during each calendar year of the franchise term the City Council, upon giving thirty days notice to the Company of its intention to do so, may review and change the consideration paid by the Company under this franchise; provided, however, the City Council may only change the consideration to be received by the City under the terms of this franchise to the equivalent of the consideration paid by the Company to any city or town in the State of Colorado in which the Company supplies electricity under franchise.
The Company shall report to the City within sixty days of the execution of a subsequent franchise or of any change of franchise in another municipality that could have a significant financial impact on the consideration to be paid by the Company to the City hereunder.
If the City Council decides the consideration shall be so changed, it shall provide for such change by Ordinance; provided, however, that any changed franchise fee is then allowed to be surcharged by the Company and, provided further, that the consideration is not higher than the highest consideration paid by the Company to any municipality within the State of Colorado. For the purposes of this Section, consideration means the franchise fee as established in Section 16-5-5; the undergrounding program established in Section 16-5-36; and also includes any other provision which is of similar significant financial benefit to the City.
16-5-8: FRANCHISE FEE IN LIEU OF OTHER FEES: (2107) (A) Payment of the franchise fee by the Company is accepted by the City in lieu of any occupation tax, license tax or similar tax on the privilege of doing business in the City. Payment of the franchise fee does not exempt the Company from payment of taxes that are uniform and generally applicable to other persons conducting business within the City, such as head, sales and use taxes.
16-5-9: CONTRACT OBLIGATION: (2107) (A) This franchise constitutes a valid and binding contract between the Company and the City. In the event that the franchise fee specified in this franchise is declared illegal, unconstitutional or void for any reason by any court or other proper authority, the Company shall be contractually bound to pay the City, on the same schedule as provided herein for the franchise fee, an aggregate amount equal to the amount which would have been paid as a franchise fee. In the alternative, the City shall have the right to impose on the Company occupation and license fees and permit charges reasonably equivalent on an annual basis to said franchise fee.
16-5-10: ADEQUATE SUPPLY AT LOWEST REASONABLE COSTS: (2107)
(A) The Company shall at all times take all reasonable and necessary steps to assure an adequate supply of electricity to the City and its residents at the lowest reasonable cost consistent with long-term reliable supplies. Should electricity be made available to the Company from whatever source, including any agency or instrumentality of the United States, at less total cost than the total cost which would be incurred by the Company to supply such electricity from its own systems and under circumstances which will not adversely affect the Company or its operations, the Company agrees to attempt to purchase this lower-cost electricity and to pass on to its customers any savings resulting from the purchase.
6/93 16-5-10(B) 16-5-12
(B) If the supply of electricity to the City or its residents should be interrupted, the Company shall immediately take all necessary and reasonable actions to restore such supply at the soonest possible time.
(C) The Company shall provide to the City a telephone number which is not available to the public whereby the City will be able to obtain status reports from the Company on a twenty-four-hour basis concerning interruptions of the supply of electricity in any portion of the City.
(D) The Company shall install, repair, renovate and replace its facilities in a good and workmanlike manner. The Company's facilities shall be of sufficient quality, redundancy and durability to provide adequate and efficient electric service to the City and its residents.
16-5-11: OBLIGATIONS REGARDING COMPANY FACILITIES: (2107)
(A) All work by the Company shall be done:
1. In a good workmanlike manner;
2. In a timely and expeditious manner;
3. In a manner which minimizes inconvenience to the public and individuals;
4. In a cost-effective manner, which may include the use of qualified private contractors; and
5. In accordance with all applicable codes, rules and regulations of the City.
(B) Company facilities shall not interfere with water facilities, sanitary or storm sewer facilities or other municipal or public use of public streets and public easements. Company facilities shall be installed and maintained so as to minimize interference with other property, trees and other improvements and natural features.
(C) The Company shall promptly repair all damage caused by Company activities or facilities. If such damage poses threat to health, safety or welfare of the public or individuals, the City may cause repairs to be made at the Company's expense unless the Company makes such repairs promptly upon the City's request.
(D) All work is subject to inspection and approval by the City that said work has been performed in accordance with all applicable codes, rules and regulations of the City. The Company shall promptly perform reasonable remedial action required by the City pursuant to said inspection.
(E) The installation, maintenance, renovation and replacement of any facilities in public streets and public easements by the Company shall be subject to inspection and approval of location by the City. Such inspection and approval may include, but not be limited to, the following matters: location of facilities in public streets and public easements; cutting and trimming of trees and shrubs; and disturbance of pavements, sidewalks and surfaces of public streets and public easements. All Company facilities shall be installed in public easements so as to cause a minimal amount of interference with such property.
(F) The Company and all of its contractors shall comply with all applicable City regulations and ordinances. The Company shall require its contractors working in public streets and public easements to hold the necessary contracting licenses required by the City.
(G) The Company shall reimburse the City for the costs of upgrading the electrical system or facility of any City building or facility that uses electricity where such upgrading is caused or occasioned solely by the Company's decision to increase the voltage of delivered electrical energy.
16-5-12: EXCAVATION AND CONSTRUCTION: (2107) (A) The Company shall be responsible for obtaining all applicable permits. All permits shall be obtained at least 24 hours prior to initiation of the work, except for emergency situations, in which case the Company shall notify the City within 72 hours after the emergency that work has commenced. All public and private property whose use conforms to restrictions in public easements disturbed by Company construction or excavation activities shall be restored by the Company at its expense to substantially its former condition according to then existing City codes and specifications.
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16-5-13: RELOCATION OF COMPANY FACILITIES: (2107)
(A) If at any time the City requests the Company to relocate any facility installed or maintained in public streets or public easements, pursuant to this franchise or previous franchises, in order to permit the City:
1. to make any public use of public streets or public easements;
2. to construct any public improvement;
3. to build any public project; or
4. to pursue any municipal purpose in which the City has a financial or ownership interest, such relocation shall be made by the Company at its expense.
(B) The Company shall complete such relocations as soon as practicable from the date when the City makes its request. The Company shall, in any event, be granted an extension of time of completion equivalent to any delay caused by conditions not under its control. The Company shall proceed with due diligence at all times. As and when requested by the City, representatives of the City and the Company shall meet to share information regarding anticipated City projects which will require relocation of Company facilities. Such meetings shall be for the purpose of providing the City with the estimated time table within which the involved Company facilities shall be relocated, including an anticipated start date (within a thirty day window), so as to facilitate coordination with the time table to be established by the City for completion of the City project.
(C) Following relocation, all property shall be restored to substantially its former condition by the Company at its expense in accordance with then existing City codes and specifications.
(D) Nothing herein contained shall be construed to impose any obligation upon the City to make any payment for any relocation of the Company's facilities.
(E) Relocated underground facilities shall be under ground. Relocated aboveground facilities shall be above ground unless the City either agrees to pay the additional cost of moving similar facilities underground or requests that such additional cost be paid out of the available funds under Section 16-5-36.
16-5-14: SERVICE TO NEW AREAS: (2107) (A) If, during the term of this franchise, the boundaries of the City are expanded within the Company's certificated service area, as same may be expanded from time to time, the Company shall extend service at the earliest practicable time to residents of the newly incorporated areas in accordance with the Company's extension policy. Service to newly expanded areas shall be in accordance with the terms of this franchise, including payment of franchise fees.
16-5-15: CITY NOT REQUIRED TO ADVANCE FUNDS: (2107) (A) Upon receipt of the City's authorization for billing and construction, the Company shall extend its facilities to provide electric service for municipal uses within the City limits or for any major municipal facility outside the City limits, and within the Company certificated service area, without requiring the City to advance funds prior to construction.
16-5-16: TECHNOLOGICAL IMPROVEMENTS: (2107)
(A) The Company shall generally introduce and install, 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. Upon request, the Company shall review and promptly report advances which have occurred in the electric utility industry that have been incorporated into the Company's operations in the City in the previous year or will be so incorporated in the six months following the City's request.
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(B) The Company shall report in advance to the City any plans to include technological advances relating to communications systems such as fiber optics which may utilize electric facilities already in place for the transmission of communication signals, which facilities may be installed by the Company for its use, the use of the City, or for use of others as the Company may license. The City may use said facilities for its own use without cost, except such additional expense which may be incurred by the Company as a result of the City's use. The City shall not use said facilities for commercial purposes unless it reaches prior agreement with the Company regarding consideration for the use of said facilities. In no event shall the City's use impair the Company's ability to use its own facilities. Upon request of the City, the Company will provide a detailed report for the use of such communications systems subject to protecting confidential information. Nothing contained herein shall be construed to authorize the Company to engage in communications activities for sale or lease, nor shall this franchise be construed as a franchise for said telecommunications activities within the City.
16-5-17: CITY REGULATION: (2107) (A) The City expressly reserves, and the Company expressly recognizes, the City's right and duty to adopt, from time to time, in addition to the provisions herein contained, such charter provisions, ordinances, rules and regulations as may by the City be deemed necessary in the exercise of its police power for the protection of the health, safety and welfare of its citizens and their properties. The Company shall comply with such applicable laws. Nothing herein contained, however, shall waive the Company's right to challenge the validity of any such provision, ordinance, rule or regulation. In the event of any inconsistency between this franchise and any other ordinance, rule or regulation, this franchise shall control.
16-5-18: COMPLIANCE WITH CITY REQUIREMENTS: (2107)
(A) The Company shall use its best efforts to keep the City informed as to existing and planned system capacity, construction, maintenance and other activities of the Company within the City. The City shall use its best efforts to keep the Company informed as to existing and planned development, construction and other activities. Regular planning and coordination meetings will be held. Representatives of the Company and the City shall meet annually to discuss annual and long-term planning for capital improvement projects contemplated by each. To the extent reasonable, the Company and the City shall include within their capital improvement projects the plans of the other relating to same. The Company shall submit reports of annual and long-term planning for capital improvement projects with descriptions of required street cuts, excavation, digging and related construction activities within thirty days after issuance of the report. Except for emergencies, the Company shall coordinate all installations with the City's capital improvement programs.
Within 60 days after the City Council adopts the City budget for the following year, the City shall forward, in writing, a list of the improvement projects (including street widening projects, street overlay projects, bridge improvement projects, new street construction projects, drainage improvement projects, and park improvement projects) which are included in the adopted budget. Within 60 days of receipt of the City's list of improvement projects the Company shall make available information regarding each City project within the public streets and public easements that identifies and generally describes the existing and anticipated Company facilities that are or may be within or cross through the project boundaries. Said information shall: (1) identify the size, type and general location of any existing Company facility; (2) address the current condition of any existing Company facility (e.g., capacity, integrity, expected service life, etc.); (3) identify any scheduled or anticipated upgrades, repairs or replacements of any existing Company facility; (4) identify generally what activities will be required to be performed by the Company in order to accommodate the City project and the necessary time frame for completion of such activities; and (5) provide any other reasonable information that may be pertinent. Nothing herein contained shall limit or restrict the Company's ability to upgrade, repair or replace any Company facility that is or may be within or cross through the boundaries of any City project.
(B) The City and the Company shall designate their respective officials to serve as their representative for coordination of this exchange of information and planning on any such project.
16-5-19: CITY REVIEW OF CONSTRUCTION AND DESIGN: (2107) (A) Except for emergencies, the Company shall use its best efforts to advise the designated City representative at least sixty days prior to construction of any transmission lines, generating plant, building, substation or similar structure located within a public street or public easement regulations are complied with. Reasonable changes requested by the City shall be incorporated into the Company's plans.
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within the City. Upon request, the Company shall provide the plans for such facilities. In addition, the Company shall assess and report on the impact of its proposed construction on the City environment. Such plans and reports may be reviewed by the City to ensure that, among other items, (1) aesthetic and good planning principles have been given due consideration, (2) adverse impact on the environment has been minimized, and (3) that all applicable laws including building and zoning codes and air and water pollution
16-5-20: COMPLIANCE WITH PUC REGULATIONS: (2107)
(A) The electricity which the Company distributes shall conform with the standards promulgated by the PUC in the Rules Regulating the Service of Electric Utilities and with the tariff provisions of the Company setting standards, as the same may be amended from time to time. The City shall have access to all records of the Company monitoring compliance with such standards.
(B) Prior to final adoption by the City of this franchise the Company shall file with the PUC such amendments to its tariffs as may be necessary to make its tariff provisions compatible with the provisions of this ordinance, and shall report to the City any changes that have been made for this purpose.
16-5-21: COMPLIANCE WITH AIR AND WATER POLLUTION LAWS: (2107) (A) The Company shall use its best efforts to take measures which will result in its facilities meeting the standards required by applicable federal and state air and water pollution laws. Upon the City's request, the Company will provide the City with a status report of such measures.
16-5-22: INSPECTION: (2107) (A) The City shall have the right to inspect at all reasonable times, and upon obtaining proper clearance for secured areas, any portion of the Company's facilities used to serve the City and its residents. The City shall also have access to Company records for the purpose of determining Company compliance with this franchise. The Company agrees to cooperate fully with the City in conducting the inspection and to correct any discrepancies in the records affecting the City's interest in a prompt and efficient manner.
16-5-23: REPORTS ON COMPANY OPERATIONS: (2107)
(A) The Company shall submit reasonable and necessary reports containing or based on information from the Company's books and records as the City may from time to time request with respect to the operations of the Company under this franchise, provided that such information can be provided at reasonable cost. Such reports may be changed from time to time as may be mutually agreeable between the City and the Company. Initially the City requests the following reports:
1. On an annual basis, a list of all real property and leasehold interests in real property owned by the Company in the City, except public and other easements.
2. On an annual basis, short-term (less than three years) and long-range (over three years) plans for all capital improvements, construction and excavation within the City or affecting service to the City and its residents.
3. Upon the City's request, the Company and the City shall meet to share information regarding excavations in public streets or public easements made by the Company within the City. Information shared shall include:
a. Exact locations of excavations
b. Date(s) excavations made
c. City of Westminster permit number
16-5-24: COPIES OF TARIFFS, ALL PUC FILINGS: (2107) (A) Upon request by the City, the Company shall file with the City all tariffs, rules, regulations and policies relating to service by the Company to the City and its residents. Upon request, the Company shall provide the City with a copy of filings it makes with the PUC affecting said service. In addition, the Company will provide the City, at the City's request, copies of the Company's most recent annual report, all advice letters and applications together with supporting pre-filed testimony and exhibits filed with the PUC.
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16-5-25: DETAILED BILLS: (2107) (A) All bills sent to the City by the Company shall include account numbers, address and items metered, and they shall specify the type of account for which charges are made, i.e., electric service, street lighting, traffic signal, general office, spot lighting, etc. The Company shall provide the City annually with a complete listing of all the City's accounts.
16-5-26: CITY USE OF COMPANY FACILITIES: (2107) (A) The City shall be permitted, for the purpose of stringing wires, to make all reasonable use of all poles and overhead structures constructed by the Company within the City, provided such use does not unreasonably interfere with the use of such systems for distribution or transmission of electricity or create an unreasonable hazard and provided further there is space available. Except as provided herein, such use by the City shall be without cost. The Company shall not be responsible for any modifications to the system or for payment of any costs necessitated by such use. The use by the City shall not include the transmission or distribution of electricity. Such use may include, by way of explanation but not by way of limitation, the attachment of traffic control signs, fire alarm or police signal systems or the attachments of cables for transmitting television or radio signals, or for any other municipal use.
16-5-27: UNDERGROUND CONDUIT: (2107)
(A) In addition to the rights given the City in Section 16-5-26, in the event the Company installs new electrical conduit or opens a trench or replaces existing conduits, the Company shall provide advance notice to the designated City representative to permit additional installation for the City of similar conduit and pull-wire. If the City wants additional similar conduit and pull-wire installed, it will so notify the Company and in a timely manner provide similar conduit and pull-wire at its expense to the Company which will install it without further cost to the City, provided that such action by the City will not unreasonably interfere with the Company's facilities or delay the accomplishment of the project.
(B) The City and the Company shall cooperate to minimize installation costs of underground conduit and pull-wire and to minimize cutting the public streets and public easements.
16-5-28: USE OF COMPANY RIGHT-OF-WAY FACILITIES: (2107) (A) The Company will offer to grant to the City use of transmission right-of-way which it now, or in the future, owns or has an interest in within the City for the purposes set forth in and pursuant to the provisions of the Park and Open Space Act of 1984, provided that the Company shall not be required to make such an offer in any circumstances where such offer would interfere with the Company's use of the transmission right-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 its expense.
16-5-29: JOINT USE: (2107) (A) The Company shall permit use of Company facilities provided:
1. The joint use grantees are not in competition with the Company;
2. The joint use grantees obtain the permission of the City and pay to the City its appropriate fees, if any;
3. Such joint use does not unreasonably interfere with the Company's use of these facilities;
4. Said use does not create a safety hazard; and
5. That the Company shall assume no liability nor shall it be put to any additional expense in connection therewith.
16-5-30: CITY HELD HARMLESS: (2107)
(A) The Company shall construct, maintain and operate its facilities in a manner which provides reasonable protection against injury or damage to persons or property; provided, however, said obligation of the Company shall not increase or decrease its liability on third-party claims.
(B) The Company shall save the City harmless and indemnify the City from and against all liability or damage and all claims or demands whatsoever in nature, and reimburse the City for all its reasonable expenses arising out of the operations of the Company within the City and the securing of and the exercise by the Company of the franchise rights granted in this ordinance, including any third-party claims, administrative hearings and litigation. None of the City expenses reimbursed by the Company under this Section shall be surcharged by the Company.
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(C) The indemnification hereby extended shall include delay damages as that term is used in C.R.S. section 24-91-103.5 et seq., awarded against the City in favor of contractors for damages incurred by contractors for delays experienced in the performance of public works contracts entered into with the City; provided, however, that said indemnification shall extend only to those delays in performance of public works contracts for which the Company either agrees it is responsible or which were caused as the sole result of the acts or omissions of the Company in the performance of its obligations under this franchise. Unless the Company otherwise agrees in writing, in no event shall the Company be required to indemnify the City for any delay damages awarded against the City unless and until a final determination has been made by a court of competent jurisdiction that the delay damages suffered by a contractor were the sole result of the acts or omissions of the Company acting on behalf of or within the City's control. Nothing herein contained shall be construed as an acknowledgement by the parties that the Company, in exercising its rights and obligations under this franchise, is an entity controlled by, subject to the control of or acting on behalf of the City for the purposes of C.R.S. section 24-91-103.5., et seq.
(D) In the event the City institutes litigation against the Company for a breach of this franchise or for an interpretation of the franchise, and the City is the prevailing party, the Company shall reimburse the City for all costs related thereto, including reasonable attorney's fees.
(E) Notwithstanding any provision hereof to the contrary, the Company shall not be obligated to indemnify, defend or hold the City harmless in any manner inconsistent with the doctrine of comparative negligence in Colorado.
16-5-31: NOTICE TO COMPANY: (2107) (A) The City will provide prompt written notice to the Company of the pendency of any claim or action against the City arising out of the exercise by the Company of its franchise rights. The Company will be permitted, at its own expense, to appear and defend or to assist in defense of such claim.
16-5-32: FINANCIAL RESPONSIBILITY: (2107)
(A) At the time of the execution of this franchise and from time to time at the City's request, not more frequently than annually, the Company shall submit to the City Attorney, as a confidential document, proof of its ability to meet its obligations under this franchise, including its ability to indemnify the City as required by this Section. This proof may take the form of insurance coverage, adequate funding of self-insurance, or the provision of a bond.
(B) The Company shall supply the City with a list of its insurance companies with the types of coverage, but not levels of insurance. Said list shall be kept current by annual revisions as of January 1 during the term of the franchise.
(C) The City may require, from time to time, and the Company agrees to provide, additional reasonable funding of the Company's indemnification obligations as a self-insured, if Company is acting as a self-insurer.
16-5-33: PAYMENT OF EXPENSES INCURRED BY CITY IN RELATION TO ORDINANCE: (2107)
(A) At the City's option, the Company shall pay in advance or reimburse the City for expenses incurred in publication of notices and ordinances and for photocopying of documents arising from the negotiation of the franchise.
(B) All City expenses reimbursed by the Company under this Section shall not be surcharged by the Company.
(C) Nothing contained in this Section shall limit the Company's indemnification obligation to the City under Section 16-5-30.
16-5-34: BREACH OF CONTRACT: (2107) (A) In the event the Company fails to fulfill a substantial obligation under this franchise, the City will have a breach of contract claim against the Company, in addition to any other remedy provided by law.
16-5-35: UNDERGROUND ELECTRICAL DISTRIBUTION LINES IN NEW AREAS: (2107) (A) The Company will place newly constructed electrical distribution lines underground to serve new developments in accordance with City ordinances and the Company's tariffs.
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16-5-36: OVERHEAD CONVERSION AT EXPENSE OF COMPANY: (2107 3322)
(A) As and when requested by the City, the Company shall spend one and one-half percent (1½ %) of the preceding calendar year's electric revenues derived from customers located within the City to move the Company’s electric distribution lines located on public streets and public easements underground, provided that the undergrounding shall extend for a minimum distance of one block or 750 feet.
(B) Any unexpended portion of the one and one-half percent (1½ %) of electric revenue shall be carried over to succeeding years and, in addition, upon request by the City, the Company shall anticipate amounts to be available for up to three years in advance. Any amounts advanced shall be credited against amounts to be expended in succeeding years until such advance is eliminated.
(C) The City and the Company shall consult and plan together regarding projects to be undertaken pursuant to this Section. The Company shall provide nonbinding "ball park" cost estimates for planning purposes at no cost to the City. The final decision as to which projects are selected rests with the City, subject to the provisions of this Section. The specific scheduling of projects rests with the Company, which shall make every reasonable effort to complete such projects within the time requested by the City.
(D) If the PUC authorizes a system-wide program or programs of undergrounding electric distribution facilities, the Company will allocate to the program of undergrounding in the City such amount as is authorized by the PUC, but in no case less than one and one-half percent (1½ %) of annual electric revenues derived from customers located within the City.
(E) In no event shall any overhead conversion expense be charged against the one and one-half percent (1½ %) fund herein provided for unless the project to be so funded has been approved by the City to be funded pursuant to this Section.
(F) No relocation expenses which the Company is required to expend pursuant to Section 16-5-13 shall be charged to this allocation.
(G) In addition to the provisions of this Section, the City may require additional facilities to be moved underground at the City's expense.
(H) The establishment of this undergrounding program creates no vested right in the City to the undergrounding monies. Further, if such monies are not expended pursuant to the conditions hereof, the undergrounding monies are not convertible to cash or available for any other purposes.
16-5-37: REVIEW OF UNDERGROUNDING PROGRAM: (2107) (A) Representatives of both the City and the Company shall meet periodically to review:
The Company's undergrounding program, including conversions, public projects and replacements, which have been accomplished or are underway by the Company, together with the Company's plans for additional undergrounding;
The status of technology in the field of electric undergrounding;
Construction and operation and maintenance costs of underground lines versus overhead lines; and
Public projects anticipated by the City.
Such meetings shall be held to achieve a continuing program for the orderly undergrounding of electric lines in the City.
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16-5-38: COOPERATION WITH OTHER UTILITIES: (2107)
(A) When undertaking a project of undergrounding, the City and the Company shall work with other utilities or companies which have their lines overhead to have all lines undergrounded as part of the same project. When other utilities or companies are placing their lines underground, the Company shall cooperate with these utilities and companies and undertake to underground Company facilities as part of the same project where feasible; provided, however, the Company shall not be required to pay the costs of any other utility or company.
(B) The Company shall use its best efforts to coordinate its installation of new underground facilities with preexisting underground facilities of other companies. In each instance, each utility and company shall pay its own costs associated with the work performed by any such utility or company.
16-5-39: CONSENT OF CITY TO TRANSFER OF FRANCHISE: (2107) (A) The Company shall not sell or transfer or assign any rights under this franchise to another, by stock exchange or otherwise, excepting only corporate reorganization of the Company not involving a third-party, unless the City shall approve in writing such sale, transfer or assignment. Approval of the sale, transfer, or assignment shall not be unreasonably withheld.
16-5-40: TRANSFER FEE: (2107)
(A) In order that the City may share in the value this franchise adds to the Company's operation, any such transfer or assignment of rights under this franchise by the Company requiring the approval of the City shall be subject to the condition that the transferee shall promptly pay to the City the greater of $5,000 or the pro rata share of $1 million, which pro rata amount of $1 million shall be calculated by multiplying $1 million times a fraction of which the then population of the City within Company's PUC certificated service territory is the numerator and the then population of the City and County of Denver is the denominator and then dividing that result by 2.
(B) Such transfer fee shall not be recovered from the City or from the City residents or property owners through electric rates of consumers in the City or by surcharge by the transferee or the Company.
16-5-41: RIGHT OF FIRST PURCHASE: (2107)
(A) In the event the Company at any time during the term of the franchise proposes to sell or dispose of any of its real property located within the City, it shall grant to the City the right of first purchase of same. The Company shall obtain a qualified appraisal on any such property and the City shall have sixty days from the time such appraisal is provided to the City in which to exercise the right of first purchase by giving written notice to the Company. Should the City not provide the required written notice, the Company may proceed to negotiate with others for the sale of such property provided that the Company may not sell such property for an amount less than 95 percent of the appraised value without first providing the City an opportunity to purchase such property at such lesser price, in which event the City must notify the Company in writing within 30 days if it wishes to purchase such property.
(B) Nothing in this paragraph shall preclude the Company from transferring real property to a subsidiary or affiliate without first according the City the rights referred to above, provided that if the transferee proposes to sell or dispose of such property within one year, it shall not do so without first affording the City the rights referred to above.
16-5-42: CITY'S RIGHT TO PURCHASE OR CONDEMN: (2107) (A) The right of the City to construct, purchase or condemn any public utility works or ways and the rights of the Company in connection therewith, as provided by the Colorado Constitution and statutes, are hereby expressly reserved.
16-5-43: NEGOTIATED PURCHASE PRICE OF CONDEMNATION AWARD: (2107)
(A) Upon the exercise of the City's option to purchase, the parties shall negotiate in good faith to determine a mutually acceptable purchase price. No value shall be given to the franchise or to public right-of-way.
6/93 16-5-43(B) 16-5-46
(B) If the City and the Company cannot reach agreement as to the purchase price or acceptable payment terms within ninety (90) days after commencement of negotiations, the City may commence condemnation proceedings, and each party shall have the rights provided by law relating to condemnation; provided, however, no award shall be made for the value of the franchise or public rights-of-way.
Nothing herein contained shall limit the parties' right to assert that applicable law further limits or expands the factors that may be considered in determining the value of any public utility facilities which may be condemned by the City.
16-5-44: CONTINUED COOPERATION BY COMPANY: (2107)
(A) In the event the City exercises its option to purchase or condemn, the Company agrees that it, at the City's request, will continue to supply any service it supplies under this Ordinance for the duration of the term of this Ordinance pursuant to terms and conditions negotiated for such continued operation.
(B) The Company shall cooperate with the City by making available the existing pertinent Company records to enable the City to evaluate the feasibility of acquisition by the City of Company facilities.
(C) The Company shall not be obligated to conduct studies or accrue data without reimbursement by the City, but will make such studies if reimbursed its costs for the same.
(D) The Company shall take no action which could inhibit the City's ability to effectively or efficiently use the acquired systems.
(E) At the City's request, the Company shall supply electric power for use by the City in the City-owned system.
16-5-45: LIMITATIONS OF COMPANY REMOVAL OF FACILITIES: (2107)
(A) In the event this franchise is not renewed at the expiration of its term, is forfeited or the Company terminates any service provided herein for any reason whatsoever, and the City has not purchased or condemned the system and has not provided for alternative electric service, the Company shall not remove said system pending resolution of the disposition of the system. The Company further agrees it will not withhold any temporary services necessary to protect the public and shall be entitled only to monetary compensation in no greater amount than to which it would have been entitled were such services provided during the term of this franchise. Only upon receipt of written notice from the City stating that the City has adequate alternative electricity sources to provide for the residents of the City shall the Company be entitled to remove any or all of said systems in use under the terms of this franchise.
(B) Upon request from the City and within a reasonable time, the Company, at its expense, shall remove from the public streets and public easements all overhead distribution facilities belonging to the Company which are not otherwise purchased by the City at the termination of the franchise. Further, the Company, at the request of the City, shall remove at the Company's expense all underground electric distribution facilities which are not so purchased within a reasonable time after the receipt by the Company of a written notice from the City that said underground distribution facilities constitute a hazardous condition or interfere with a public use of the subsurface of said public streets and public easements. All property affected by such removal shall be restored by the Company to substantially its former condition after said removal.
(C) The Company need not remove any property from said public streets and public easements which property the Company shall continue to use and maintain pursuant to contractual arrangements with the City.
16-5-46: COMPANY TO PURCHASE CITY-PRODUCED POWER: (2107) (A) The City expressly reserves the right to engage in the production of electricity. If requested by the City, the Company agrees to purchase City-generated power pursuant to the Company's tariffs and applicable PUC rules and regulations and pursuant to separate contracts negotiated with the City. Payment for generated power and energy actually purchased shall be guaranteed over the term of the purchase contract.
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16-5-47: CURTAILMENT: (2107) (A) The Company shall not curtail contractual purchase of City-generated power and energy except in emergency situations or as provided in the Company's tariffs and PUC Rules and Regulations.
16-5-48: FORFEITURE: (2107)
(A) Both the Company and the City recognize there may be circumstances whereby compliance with the provisions of this franchise is impossible or is delayed because of circumstances beyond the Company's control. In those instances, the Company shall use its best efforts to comply in a timely manner and to the extent possible.
(B) If the Company fails to perform any of the terms and conditions of this franchise and such failure is within the Company's control, the City, acting by and through its City Council, may determine, after hearing, that such failure is of a substantial nature. Upon receiving notice of such determination, the Company shall have a reasonable time, not to exceed six months unless otherwise agreed in writing, in which to remedy the violations. If during said reasonable time corrective actions have not been successfully taken, the City, acting by and through its City Council, shall determine whether any or all rights and privileges granted the Company under this franchise shall be forfeited.
16-5-49: JUDICIAL REVIEW: (2107) (A) Any such declaration of forfeiture shall be subject to judicial review as provided by law.
16-5-50: OTHER LEGAL REMEDIES: (2107) (A) Nothing herein contained shall limit or restrict any legal rights that the City or the Company may possess arising from any alleged violation of this franchise.
16-5-51: CONTINUED OBLIGATIONS: (2107) (A) Upon forfeiture, the Company shall continue to provide service to the City and its residents in accordance with the terms hereof until the City makes alternative arrangements for such service. If the Company fails to provide continued service, it shall be liable for damages as provided by law to the City and its residents.
16-5-52: AMENDMENTS TO FRANCHISE: (2107) (A) At any time during the term of this franchise, the City, through its City Council, or the Company may propose amendments to this franchise. Both parties thereafter, through their designated representatives, will negotiate within a reasonable time in good faith in an effort to agree on mutually satisfactory amendments. The word "amendment" as used in this Section does not include a change authorized in Section 16-5-7. No amendment or amendments to this franchise shall be effective until mutually agreed upon by the City and the Company and approved by the City Council in accordance with the provisions of the Westminster City Charter.
16-5-53: NO WAIVER: (2107) (A) 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, employers, or agents, upon any one or more occasions to insist upon or to seek compliance with any such terms and conditions.
16-5-54: SUCCESSORS AND ASSIGNS: (2107) (A) The rights, privileges, franchises and obligations granted and contained in this franchise shall inure to the benefit of and be binding upon United Power, Inc., its successors and assigns.
16-5-55: REPRESENTATIVES: (2107 3322)
(A) Upon request by the City, the Company shall provide annually to the City a current chain of command chart showing all managers and supervisors, along with their names, titles, telephone numbers, up to the Chief Executive Officer of the Company, who have responsibility for providing services within the City.
(B) 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 ordinance. Notice shall be in writing and forwarded by certified mail or hand delivery to the persons and addresses as hereinafter stated, unless the names and addresses are changed at the written request of either party, delivered in person or by certified mail. Until any such change shall hereinafter be made, notices shall be sent to the City Manager and to the Company's Chief Executive Officer. Currently, as of the date of the commencement of this franchise, the names and addresses are as follows:
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For the City:
J. Brent McFall
City of Westminster
4800 W. 92nd Avenue
Westminster, CO 80031
For the Company:
Chief Executive Officer
P.O. Box 929
Brighton, CO 80601
16-5-56: SEVERABILITY: (2107) (A) Should any one or more provisions of this franchise be determined to be illegal or unenforceable, all other provisions nevertheless shall remain effective; provided, however, the parties shall forthwith enter into good faith negotiations and proceed with due diligence to draft a term that will achieve the original intent of the parties hereunder.
16-5-57: ENTIRE AGREEMENT: (2107) (A) This franchise constitutes the entire agreement of the parties. There have been no representations made other than those contained in this franchise.
16-5-58: COMPANY APPROVAL: (2107) (A) The Company shall file with the City Clerk its written approval of this franchise and of all of its terms and provisions at least ten days prior to the City Council meeting at which the ordinance granting the franchise is to be heard on second reading. The Company shall file with the City Clerk its written ratification thereof within ten days after the approval of this franchise by the City Council on second reading of the ordinance. The acceptance and ratification shall be in form and content approved by the City Attorney. If the Company shall fail to timely file its written acceptance or ratification as herein provided, this franchise shall be and become null and void.
16-5-59: ANNEXATION TO THE CITY: (2107) (A) When any property owned by the Company becomes eligible for voluntary annexation to the City and is not simultaneously eligible for voluntary annexation to another municipal corporation, the Company shall petition to annex the same upon request made by the City, provided that no condition of such annexation shall impair the Company's ownership or then existing use of its property and water or water rights for public utility purposes. Except as herein provided, the Company agrees to meet all terms and conditions imposed upon the annexation by the City that are no more stringent than those imposed generally upon property owners seeking annexation of their land to the City. The Company shall be exempted from a public donation of land, money or water rights arising from such mandatory annexation under this Section to the extent that the land being annexed is committed, dedicated and being utilized by facilities directly involved in generating, transmitting or distributing electric energy services under this ordinance, and provided further that said exemption from public donation shall not extend to any unimproved land or land not so committed, dedicated and currently used.
16-5-60: THIRD PARTIES: (2107) (A) Nothing contained in this franchise shall be construed to provide rights to third parties.