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HomeMy WebLinkAboutORDINANCE 01-130 0 ORDINANCE NO.1-13 AN ORDINANCE OF THE TOWN OF ESTES PARK,LARIMER COUNTY, COLORADO,GRANTING BY FRANCHISE TO PUBLIC SERVICE COMPANY OF COLORADO,ITS AFFILIATES,SUCCESSORS AND ASSIGNS,THE RIGHT TO USE THE STREETS WITHIN THE TOWN TO FURNISH,SELL,TRANSMIT AND DISTRIBUTE NATURAL GAS TO THE TOWN AND TO ALL RESIDENTS OF THE TOWN,GRANTING THE RIGHT TO ACQUIRE,CONSTRUCT,INSTALL,LOCATE, MAINTAIN,OPERATE AND EXTEND INTO,WITHIN AND THROUGH THE TOWN ALL FACILITIES REASONABLY NECESSARY TO FURNISH,SELL,TRANSMIT AND DISTRIBUTE NATURAL GAS WITHIN AND THROUGH THE TOWN. WHEREAS,on December 11 2012,Public Service Company of Colorado filed with the Board of Trustees of the Town of Estes Park its Notice of Application for Franchise;and WHEREAS,accompanying said Notice of Application was an Affidavit of Publication indicating that the provisions of Section 31-32-1 02 C.R.S.had been met;and WHEREAS,this Ordinance was introduced and read at length on December 11,2012, at the regular meeting of the Board of Trustees of the Town of Estes Park;and WHEREAS,following the reading in full of this Ordinance,this Ordinance was published as required by the provisions of Section 31-32-1 03 C.R.S.;and WHEREAS,at the regular meeting of the Board of Trustees of the Town of Estes Park on January 22,2013,this Ordinance was read in full;and WHEREAS,the Board of Trustees of the Town of Estes Park has determined that itis in its best interests of the Town and the citizens of the Town of Estes Park for the adoption of this Ordinance. NOW THEREFORE,BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES PARK,COLORADO: Section 1.The Town of Estes Park,pursuant to the applicable provisions of Article 32 of Title 31,C.R.S.,hereby grants a franchise to the Public Service Company of Colorado,its successors and assigns,for the right to use the streets within the Town to furnish,sell,transmit and distribute natural gas to the Town and to all residents of the Town,granting the right to acquire,construct,install,locate,maintain,operate and extend into,within and through the Town all facilities reasonably necessary to furnish, sell,transmit and distribute natural gas within and through the Town as more fully set forth on the Franchise Agreement attached herein by this reference. 0 0 INTRODUCED,READ,AND PASSED BY THE BOARD OF TOWN OF ESTES PARK on this ‘°day of____________ ØIIIIllIi111 ::(4 :rj hull l1Itl ATTEST: Th3’n Clerk I hereby certify that the above Ordinance was introduced and read at the meeting of the Board of Trustees on the day of cc-a ,2013,and published in a newspaper of general circulation in the Town of Estes Park,Colorado,on the ‘‘ dayof __________________,2013. -n Tocvh Clerk U C Section 2.This Ordinance shall take effect and be in after its adoption and publication. 0 force thirty (30)days TRUSTEES OF THE 2013. iayor 0 0 0 0 FRANCHISE AGREEMENT BETWEEN THE TOWN OF ESTES PARK,COLORADO AND PUBLIC SERVICE COMPANY OF COLORADO ARTICLE I DEFINITIONS ARTICLE 2 GRANT OF FRANCHISE ARTICLE 3 TOWN 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 CONDE’vINATION 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 0 0 TABLE OF CONTENTS ARTICLE I DEFINITIONS 1 §1.1 “Board”or “Town Board” §1.2 “Company” §1.3 “Company Facilities” §1.4 “Force Majeure”I Revenues”1 Town Property Project”2 ilic Project”2 §1.9 “Public Utilities Commission”or “PUC 2 §1.10 “Public Utility Easement”2 §1.11 “Relocate,”“Relocation,”or “Relocated”2 §1.12 “Residents”2 §1.13 “Streets”or “Town Streets 2 §1.14 “Supporting Documentation”2 §1.15 “Tariffs”2 §1.16 “Town”3 §1.17 “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 TOWN POLICE POWERS 4 §3.1 Police Powers 4 §3.2 Regulation of Streets or Other Town 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 6 ARTICLES ADMINISTRATION OF FRANCHISE 6 §5.1 Town Designee 6 §5.2 Company Designee 7 §5.3 Coordination of Work 7 ARTICLE 6 SUPPLY,CONSTRUCTION,AND DESiGN 7 §6.1 Purpose 7 §6.2 Supply 7 §6.3 Charges to the Town for Service to Town Facilities 7 §6.4 Restoration of Service 8 §6.5 Obligations Regarding Company Facilities 8 §6.6 Excavation and Construction 9 §6.7 Restoration 9 0 0 §6.8 Relocation of Company Facilities .10 §6.9 New or Modified Service Requested by Town 12 §6.10 Service to New Areas 12 §6.11 Town Not Required to Advance Funds If Permitted by Tariffs 12 §6.12 Technological Improvements 12 ARTICLE 7 RELIABILITY 13 §7.1 Reliability 13 §7.2 Franchise Performance Obligations 13 §7.3 Reliability Reports 13 ARTICLE 8 COMPANY PERFORMANCE OBLIGATIONS 13 §8.1 New or Modified Service to Town Facilities 13 §8.2 Adjustments To Company Facilities 13 §8.3 Third Party Damage Recovery 14 ARTICLE 9 BILLING AND PAYMENT 15 §9.1 Billing for Utility Services 15 §9.2 Payment To Town 15 ARTICLE 10 PURCHASE OR CONDEMNATION 15 §10.1 Municipal Right to Purchase or Condemn 15 ARTICLE 11 TRANSFER OF FRANCHISE 16 §11.1 Consent of Town Required 16 §11.2 TransferFee 16 ARTICLE 12 CONTINUATION OF UTILITY SERVICE 16 §12.1 Continuation of Utility Service 16 ARTICLE 13 INDEMNIFICATION AND IMMUNITY 17 §131 TownHeldHarmless 17 §13.2 Immunity 17 ARTICLE 14 BREACH 17 §14.1 Non-Contestability 17 §14.2 Breach 18 ARTICLE 15 AMENDMENTS 19 §15.1 Proposed Amendments 19 §15.2 Effective Amendments 19 ARTICLE 16 EQUAL OPPORTUNITY 19 §16.1 Economic Development 19 §16.2 Employment 19 §16.3 Contracting 20 §16.4 Coordination 21 ARTICLE 17 MISCELLANEOUS 21 §17.1 NoWaiver 21 ‘I 0 0 §17.2 Successors and Assigns .21 §17.3 Third Parties 21 §17.4 Notice 21 §17.5 Examination Of Records 22 §17.6 List of Utility Property 22 §17.7 PUC Filings 22 §17.8 Information 23 §17.9 Payment of Taxes and Fees 23 §17.10 Conflict of Interest 23 §17.11 Certificate of Public Convenience and Necessity 23 §17.12 Authority 23 §17.13 Severability 24 §17.14 Force Majeure 24 §17.15 Earlier Franchises Superseded 24 §17.16 Titles Not Controlling 24 §17.17 Applicable Law 24 §17.18 Payment Of Expenses Incurred By Town In Relation To Franchise Aeement ...24 §17.19 Incremental Costs 24 §17.20 Conveyance of Town Streets,Public Utility Easements or Other Town Property.24 111 0 0 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 “Board”or “Town Board”refers to and is the legislative body of the Town. §1.2 “Company”refers to Public Sen’ice 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 Town,including but not limited to plants,works,systems,transmission and distribution structures,lines, equipment,pipes,mains,conduit,underground lines,gas compressors,meters,meter reading devices,communication and data transfer equipment,control equipment,gas regulator stations and all appurtenances thereto. §1.4 “Force Majeure”means the inability to undertalce 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 Town 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. §1.5 “Gross Revenues”refers to those amounts of money that the Company receives from the sale of gas within the Town under rates authorized by the Public Utilities Commission,as well as from the transportation of gas to its customers within the Town 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 or transportation of gas to the Town. §1.6 “Other Town Property”refers to the surface,the air space above the surface and the area below the surface of any property owned by the Town or directly controlled by the Town 1 0 0 due to the Town’s real property interest in the same or hereafter owned by the Town,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 Town.Other Town Property does not include Public Utility Easements. §1.7 “Private Project”refers to any project which is not covered by the definition of Public Project. §1.8 “Public Project”refers to (1)any public work or improvement within the Town that is wholly or beneficially owned by the Town;or (2)any public work or improvement within the Town where fifty percent (50%)or more of the ifinding is provided by any combination of the Town,the federal government,the State of Colorado,any Colorado county,but excluding all entities established under Title 32 of the Colorado Revised Statutes. §1.9 “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. §1.10 “Public Utility Easement”refers to any platted easement over,under,or above public or private property,expressly dedicated to,and accepted by,the Town for the use of public utility companies for the placement of utility facilities,including but not limited to Company Facilities. §1.11 “Relocate,”“Relocation,”or “Relocated”refers to the definition assigned such terms in Section 6.8.A of this Franchise. §1.12 “Residents”refers to all persons,businesses,industries,governmental agencies,including the Town,and any other entity whatsoever,presently located or to be hereinafter located, in whole or in part,within the territorial boundaries of the Town. §1.13 “Streets”or “Town Streets”refers to the surface,the air space above the surface and the area below the surface of any Town-dedicated or Town-maintained streets,alleys, bridges,roads,lanes,access easements,and other public rights-of-way within the Town, which are primarily used for vehicle traffic.Streets shall not include Public Utility Easements and Other Town Property. §1.14 “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 Town’s project manager. §1.15 “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. 2 0 0 §1.16 “Town”refers to the Town of Estes Park,a municipal corporation of the State of Colorado. §1.1 7 “Utility Service”refers to the sale of gas to Town 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 Town 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 Town Streets,Public Utility Easements (as applicable)and Other Town Property: (I)to provide Utility Service to the Town 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 Town all Company Facilities reasonably necessary for the production,manufacture,sale, storage,purchase,exchange,transportation and distribution of Utility Service within and through the Town. §2.2 Conditions and Limitations. A.Scope of Franchise.The grant of the Franchise shall extend to all areas of the Town as it is now or hereafter constiftted 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 Town Usage.The right to make reasonable use of Town Streets to provide Utility Service to the Town and its Residents under the Franchise is subject to and subordinate to any Town 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 Town Property or Public Utility Easements and such licenses,grants or rights of use are hereby affirmed. 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 Town reserves the right to make or grant a franchise to any other person,firm,or corporation. 3 0 0 §2.3 Effective Date and Term. A.Term.This Franchise shall take effect on December 26,2012,and shall supersede any prior franchise grants to the Company by the Town.This Franchise shall terminate on December 26,2032,unless extended by mutual consent. ARTICLE 3 TOWN POLICE POWERS §3.1 Police Powers.The Company expressly acknowledges the Town’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 Town considers making any substantive changes in its local codes or regulations that in the Town’s reasonable opinion will significantly impact the Company’s operations in the Town’s Streets,Public Utility Easements and Other Town 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 Town Property.The Company expressly acknowledges the Town’s right to enforce regulations concerning the Company’s access to or use of the Streets,including requirements for permits. §3.3 Compliance with Laws.The Company shall promptly and hilly comply with all laws, regulations,permits and orders lawfully enacted by the Town. ARTICLE 4 FRANCHISE FEE §4.1 Franchise Fee. A.Franchise Fee.In partial consideration for the Franchise,which provides the certain terms related to the Company’s use of Town Streets,Public Utility Easements and Other Town Property,which are valuable public properties acquired and maintained by the Town at great expense to its Residents,and in recognition of the fact that the grant to the Company of the Franchise is a valuable right,the Company shall pay the Town 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 Town 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 Town,at the same times and in the same manner as provided in the 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 Town Streets,Public Utility Easements and other Town Property.Such payment shall be made in accordance with the applicable provisions of law.Further,to the extent required by law,the Company shall collect the amounts agreed upon through a 4 0 0 surcharge upon Utility Service provided to Town Residents who are customers of the Company. C.ChanRes in Utility Service Industries.The Town and the Company recognize that utility service industries are the subject of restructuring initiatives by legislative and regulatory authorities,and are also experiencing other changes as a result of mergers,acquisitions,and reorganizations.Some of such initiatives and changes have or may have an adverse impact upon the franchise fee revenues provided for herein.In recognition of the length of the term of this Franchise,the Company agrees that in the event of any such initiatives or changes and to the extent permitted by law,upon receiving a written request from the Town,the Company will cooperate with and assist the Town in modifying this Franchise in an effort to provide that the Town receives an amount in franchise fees or some other form of compensation that is the same amount of franchise fees paid to the Town as of the date that such initiatives and changes adversely impact franchise fee revenues. D.Utility Service Provided to the Town.No franchise fee shall be charged to the Town for Utility Service provided directly or indirectly to the Town for its own consumption. §4.2 Remittance of Franchise Fee. A.Remittance Schedule.Franchise fee revenues shall be remitted by the Company to the Town as directed by the Town 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 Town or the Company discovers that there has been an error in the calculation of the franchise fee payment to the Town,either party shall provide written notice of the error to the other party.Subject to the following sentence,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;othenvise,the error shall be corrected in the next monthly payment.However,if the error results in an overpayment of the franchise fee to the Town,and said overpayment is in excess of Five Thousand Dollars (S5,000.0O),at the Company’s election,credit for the overpayment shall be spread over the same period the error was undiscovered or the Town shall make a refund payment to the Company.All franchise fee underpayrnents 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 Tariff,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)Every three (3)years commencing at the end of the third year of this Franchise,the Company shall conduct an internal audit to investigate 5 0 0 and determine the correctness of the franchise fee paid to the Town.Such audit shall be limited to the previous three (3)calendar years.The Company shall provide a written report to the Town Administrator containing the audit findings. (2)If the Town disagrees with the results of the audit,and if the parties are not able to informally resolve their differences,the Town may conduct its own audit at its own expense,and the Company shall cooperate,including but not necessarily limited to,providing the Town’s auditor with all information reasonably necessary to complete the audit. (3)If the results of a Town audit conducted pursuant to subsection C(2)concludes that the Company has underpaid the Town by five percent (5%)or more,in addition to the obligation to pay such amounts to the Town,the Company shah also pay all reasonable costs of the Town’s audit. 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. E.Reports.Upon written request by the Town,but not more than once per year,the Company shall supply the Town with reports,in such formats and providing such details as reasonably requested by the Town,of all suppliers of utility service that utilize Company Facilities to sell or distribute utility service to Residents and the names and addresses of each such supplier,provided 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 Town,including any fee for a street closure permit,an excavation permit,a street cut permit,or other lawful permits hereafter required by the Town,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 Town Streets,Public Utilities Easements and Other Town Property. ARTICLE 5 ADMIMSTRATLON OF FRANCHISE §5.1 Town Designee.The Town Administrator shall designate in writing to the Company an official having full power and authority to administer this Franchise.The Town Administrator may also designate one or more Town representatives to act as the primary liaison with the Company as to particular matters addressed by this Franchise and shall provide the Company with the name and telephone numbers of said Town 6 0 0 representatives.The Town Administrator may change these designations by providing written notice to the Company.The Town’s designee shall have the right,at all reasonable times,to inspect any Company Facilities in Town Streets and Other Town Property. §5.2 Company Designee.The Company shall designate a representative to act as the primary liaison with the Town and shall provide the Town 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 Town.The Town shall use this liaison to communicate with the Company regarding Utility Service and related service needs for Town facilities. §5.3 Coordination of Work.The Company agrees to coordinate its activities in Town Streets, Public Utility Easements and Other Town Property with the Town.The Town and the Company will meet annually upon the written request of the Town designee to exchange their respective short-term and long-term forecasts and/or work plans for construction and other similar work which may affect Town Streets,including but not limited to any planned Town Streets paving project.The Town 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 Town will be assured that all applicable provisions of this Franchise,applicable building and zoning codes,and applicable Town air and water pollution regulations are complied with,and that aesthetic and other relevant planning principles have been given due consideration. ARTICLE 6 SUPPLY,CONSTRUCTION,AND DESIGN §6.1 Purpose.The Company acknowledges the critical nature of the municipal services performed or provided by the Town to the Residents that require the Company to provide prompt and reliable Utility Service and the performance of related services for Town facilities.The Town 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 Town in order to facilitate and enhance the operation of Town facilities.They also wish to provide for other processes and procedures related to the provision of Utility Service to the Town. §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 Town for Service to Town Facilities. No charges to the Town 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 7 o 0 over the Company’s regulated intrastate electric and gas rates. §6.4 Restoration of Service. A.Notification.The Company shall provide to the Town daytime and nighttime telephone numbers of a designated Company representative from whom the Town 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 Town. B.Restoration.In the event the Company’s gas system within the Town,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 Town Streets and Other Town Property shall be maintained in good repair and condition. B.Company Work within the Town.All work within Town Streets and Other Town Property performed or caused to be performed by the Company shall be done: (1)in a high-quality manner that is in accordance with generally accepted utility practice; (2)in a timely and expeditious manner; (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; (5)in accordance with all applicable laws,ordinances,regulations and the Tariff; (6)in a manner that complies with state and federal safety regulations; and (7)in accordance with all lawfully required Town pennits. C.No Interference with Town Facilities.Company Facilities shall not unreasonably interfere with any Town facilities,including water facilities,electric facililties or storm sewer facilities,communications facilities,or other Town uses of the Streets,Public Utility Easements or Other Town Property.Company Facilities shall be installed and maintained in Town Streets,Public Utility Easements and Other Town 8 0 0 Property so as to reasonably minimize interference with other property,trees,and other improvements and natural features in and adjoining the Streets,Public Utility Easements and Other Town Property in light of the Company’s obligation under Colorado law to provide safe and reliable utility facilities and services, ID.Permit and Inspection.The installation,renovation,and replacement of any Company Facilities in the Town Streets or Other Town Property by or on behalf of the Company shall be subject to permit,inspection and approval by the Town 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;provided,however,Company shall have the right to cut, prune,and/or remove vegetation in accordance with its standard vegetation management requirements and procedures,and disturbance of pavement,sidewalks and surfaces of Town Streets or Other Town Property.The Company agrees to cooperate with the Town in conducting inspections and shall promptly perform any remedial action lawifilly required by the Town pursuant to any such inspection. E.Compliance.The Company and all of its contractors shall comply with the requirements of all municipal laws,ordinances,regulations,permits,and standards lawthlly adopted,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 Town Streets,Public Utility Easements or Other Town Property hold the necessary licenses and permits required by law. F.As-Built Drawings.Within fourteen (14)days after written request of the City designee,but no sooner than fourteen (14)days after project completion,the Company shall 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.As used in this Section,as-built drawings refers to the facility drawings as maintained in the Company’s geographical information system or any equivalent Company system.The Company shall not be required to create drawings that do not exist at the time of the request. G.Excavation and Construction.The Company shall be responsible for obtaining,paying for,and complying with all applicable permits including,but not limited to,excavation,street closure and street cut permits,in the manner required by the laws,ordinances,and regulations of the Town.Although the Company shall be responsible for obtaining and complying with the terms of such permits when performing Relocations requested by the Town under Section 6.8 of this Franchise,the Town will not require the Company to pay the fees charged for such permits.Upon the Company submitting a construction design plan,the Town shall promptly and Thlly advise the Company in writing of all requirements for restoration of Town Streets in advance of Company excavation projects in Town Streets,based upon the design submitted. §6.6 Restoration.When the Company does any work in or affecting the Town Streets,Public Utility Easements or Other Town Property,it shall,at its own expense,promptly remove any obstructions placed thereon or therein by the Company and restore such Town 9 0 0 Streets,Public Utility Easements or Other Town Property to a condition that is substantially the same as existed before the work,and that meets applicable Town standards.If weather or other conditions do not permit the complete restoration required by this Section,the Company may with the approval of the Town,temporarily restore the affected Town Streets,Public Utility Easements or Other Town Property,provided that such temporary restoration is not at the Town’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 Town,the Company shall restore the Streets,Public Utility Easements or Other Town Property to a better condition than existed before the Company work was undertaken,provided that the Town shall be responsible for any incremental costs of such restoration not required by then-current Town standards,and provided the Town seeks and/or grants,as applicable,any additional required approvals.If the Company fails to promptly restore the Town Streets,Public Utility Easements or Other Town Property as required by this Section,and if,in the reasonable discretion of the Town immediate action is required for the protection of public health,safety or welfare,the Town may restore such Streets,Public Utility Easements or Other Town Property or remove the obstruction therefrom;provided however,Town actions do not interfere with Company Facilities.The Company shall be responsible for the actual cost incurred by the Town to restore such Town Streets,Public Utility Easements or Other Town Property or to remove any obstructions therefrom.In the course of its restoration of Town Streets, Public Utility Easements or Other Town Property under this Section,the Town 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. §6.7 Relocation of Company Facilities. A.Relocation Obligation.The Company shall temporarily or permanently remove,relocate,change or alter the position of any Company Facility (collectively, “Relocate(s),”“Relocation(s)”or “Relocated”)in Town Streets or in Other Town Property at no cost or expense to the Town 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 6.8A,the Company and the Town agree to cooperate on the location and Relocation of the Company Facilities in the Town Streets or Other Town 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 Town’s direction,if the Town 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 10 0 0 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 Town 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 Town to provide adequate Supporting Documentation.The Company has the burden of presenting information to reasonably demonstrate the basis for the delay. Upon written request of the Company,the Town may also grant the Company reasonable extensions of time for good cause shown and the Town shall not unreasonably withhold or condition any such extension. D.Town Revision of Supporting Documentation.Any revision by the Town of Supporting Documentation provided to the Company that causes the Company to substantially redesign anWor change its plans regarding facility Relocation shall be deemed good cause for a reasonable extension of time to complete the Relocation under the 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 Town,and removes from the site or properly abandons on site all unused 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 facilities shall be Relocated underground.Above ground 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 Town designee or the Company, representatives of the Town and the Company shall meet to share information regarding anticipated projects which will require Relocation of Company Facilities in Town Streets.Such meetings shall be for the purpose of minimizing conflicts where possible and to facilitate coordination with any reasonable timetable established by the Town for any Public Project. (2)The Town shall make reasonable best efforts to provide the Company with two (2)years advance notice of any planned street 11 0 0 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 Town 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 Town.In the event the Town accepts the proposed alternative or modification,the Company agrees to promptly compensate the Town for all additional costs,expenses or delay that the Town reasonably determines resulted from the implementation of the proposed alternative. §6.8 New or Modified Service Requested by Town.The conditions under which the Company shall install new or modified Utility Service to the Town 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. §6.9 Service to New Areas.If the territorial boundaries of the Town 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. §6.10 Town Not Required to Advance Funds If Permitted by Tariffs.Upon receipt of the Town’s authorization for billing and construction,the Company shall install Company Facilities to provide Utility Service to the Town as a customer,without requiring the Town to advance finds prior to construction.The Town 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 Town to not advance finds prior to construction shall only apply to the extent permitted by the Tariffs. §6.11 Technological Improvements.The Company shall use its best efforts to incorporate,as soon as practicable,technological advances in its equipment and service within the Town when such advances are technically and economically feasible and are safe and beneficial to the Town and its Residents. 12 0 0 ARTICLE 7 RELIABILITY §7.1 Reliability.The Company shall operate and maintain Company Facilities efficiently and economically and in accordance with the high standards and best 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 Town with a report regarding the reliability of Company Facilities and Utility Service. ARTICLE 8 COMPANY PERFORMANCE OBLIGATIONS §8.1 New or Modified Service to Town Facilities.In providing new or modified Utility Service to Town facilities,the Company agrees to perform as follows: A.Performance.The Company shall complete each project requested by the Town 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 Town 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 Town designee may also grant the Company reasonable extensions of time for good cause shown and the Town shall not unreasonably withhold any such extension. B.Town Revision of Supporting Documentation.Any revision by the Town of Supporting Documentation provided to the Company that causes the Company to substantially redesign and/or change its plans regarding new or modified service to Town facilities shall be deemed good cause for a reasonable extension of time to complete the Relocation under the Franchise. 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 the Franchise or as otherwise agreed with the Town and removes from the site or properly abandons on site any unused facilities, equipment,material and other impediments. §8.2 Adjustments To Company Facilities.The Company shall perform adjustments to Company Facilities,including manholes and other appurtenances in Streets and Other Town Property,to accommodate Town street maintenance,repair and paving operations at no cost to the Town.In providing such adjustments to Company Facilities,the Company agrees to perform as follows: 13 0 0 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 Town 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 Town may also grant the Company reasonable extensions of time for good cause shown and the Town shall not unreasonably withhold any such extension. B.CompletionlRestoration.Each such adjustment shall be complete only when the Company actually adjusts and,if required,readjusts,Company Facilities to accommodate Town operations in accordance with Town instructions following Town paving operations. C.Coordination.As requested by the Town or the Company,representatives of the Town and the Company shall meet regarding anticipated street maintenance operations which will require such adjustments to Company Facilities in Streets or Other Town 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,to the extent permitted by law the Town will noti&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 Town is Responsible.If any individual or entity damages any Company Facilities for which the Town 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 Town of any such incident of which it has knowledge and will provide to the Town 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 Town 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. 14 C C 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 Town 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 Town and payment for same shall be made as prescribed in this Franchise and the applicable Company Tariffs. C.Supporting Documents.To the extent requested by the Town,the Company shall provide all billings and any underlying Supporting Documentation reasonably requested by the Town in an editable and manipulatble electronic format that is acceptable to the Company and the Town. D.Meetings.The Company agrees to meet with the Town designee on a reasonable basis 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 Town. §9.2 Payment To Town.In the event the Town determines afier written notice to the Company that the Company is liable to the Town for payments,costs,expenses or damages of any nature,and subject to the Company’s right to challenge such determination,the Town may deduct all monies due and owing the Town 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 Town to discuss such determination.The Town agrees to attend such a meeting.As an alternative to such deduction and subject to the Company’s right to challenge,the Town 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 Town determination of liability, the Town shall make such payments to the Company for Utility Service received by Town 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 Town.The right and privilege of the Town to construct,own and operate a municipal utility,and to purchase pursuant to a mutually 15 0.0 acceptable agreement or condemn any Company Facilities located within the territorial boundaries of the Town,and the Company’s rights in comiection 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 Town 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 Town.In the event of any such purchase,no value shall be ascribed or given to the rights to use Town Streets,Public Easements or Other Town Property granted under this Franchise in the valuation of the property thus sold. B.Notice of Intent to Purchase or Condemn.The Town 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 constitute a consent by the Company to the Town’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 Town Required.The Company shall not transfer or assign any rights under this Franchise to an unafffliated 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 Town 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 Town may share in the value this Franchise adds to the Company’s operations,any transfer or assignment of rights granted under this Franchise requiring Town approval,as set forth herein,shall be subject to the condition that the Company shall promptly pay to the Town a transfer fee in an amount equal to the proportion of the Town’s then-population provided Utility Service by the Company to the then-population of the Town and County of Denver provided Utility Service by the Company multiplied by one million dollars ($1 ,000,000.OO).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 Town has not provided for alternative utility service,the Company shall have no right or obligation to remove any Company Facilities from Streets,Public Utility Easements or Other Town Property or discontinue providing Utility Service unless otherwise ordered by the PUC,and shall continue to provide Utility Service within the Town until the Town arranges for utility service from another provider.The Town acknowledges and agrees that the Company has the right to use Streets,Other Town Property and Public Utility Easements during 16 0 0 any such period.The Company thither agrees that it will not withhold any temporary Utility Services necessary to protect the public.The Town 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 Town’s compliance with applicable provisions of law,shall be obligated to pay the Town,at the same times and in the same manner as provided in the Franchise,an aggregate amount equal to the amount which the Company would have paid as a franchise fee as consideration for use of the Town’s Streets and Other Town Property. Only upon receipt of written notice from the Town stating that the Town 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 Town and its Residents. ARTICLE 13 INDEMNIFICATION AND IMMUNITY §13.1 Town Held Harmless.The Company shall indemnit’,defend and hold the Town 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,or the exercise by the Company of the related rights,but in both instances only to the extent caused by the negligence or intentional misconduct of the Company,and shall pay the costs of defense plus reasonable attorneys’fees.The Town shall (a)give prompt written notice to the Company of any claim,demand or lien with respect to which the Town seeks indemnification hereunder;and,(b)unless in the Town’s judgment a conflict of interest may exist between the Town 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 Town.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 Town 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 Town 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 Town or any of its officers, employees or authorized agents,or to the extent that the Town is acting in the capacity of a Company customer. §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 Town may have under the Colorado Governmental Immunity Act (24-l 0-101,C.R.S., et.seq.)or of any other defenses,immunities,or limitations of liability available to the Town by law. ARTICLE 14 BREACH §14.1 Non-Contestability.The Town and the Company agree to take all reasonable and necessary actions to assure that the terms of this Franchise are performed.The Company 17 0 0 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 Town and its Residents, and the Town 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 if such Breach can be cured within that time period,in which to remedy the Breach.If the Breaching Party does not remedy the Breach within the time allowed in the notice,the Non-Breaching Party may exercise the following remedies for such Breach: (1)specific performance of the applicable term or condition as 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 Town.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 Town 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 if the Breach can be cured within that time period,in which to remedy the Material Breach.If the Company does not remedy the Material Breach within the time allowed in the notice,the Town may,at its sole option,terminate this Franchise.This remedy shall be in addition to the Town’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 Town and its Residents (and shall continue to have associated rights and grants needed to provide such service)until the Town 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 Town complying with applicable provisions of law,shall be obligated to pay the Town,at the same times and in the same manner as provided in the Franchise,an aggregate amount equal to the amount which the Company would have paid as a franchise fee as consideration for use of the Town Streets and Other Town 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. 18 0 0 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 Town 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 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 hereof,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 Town and the business community’ in the Town,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 Town regularly advised of the Company’s progress by providing the Town a copy of the Company’s annual affirmative action report upon the Town’s written 19 o 0 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, intemships,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 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. B.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 Town 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 20 o 0 representing predominately 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.Town agencies provide collaborative leadership and mutual opportunities or programs relating to Town 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 collaborate on best practices regarding such programs and coordinate and cooperate with the agencies in program implementation. ARTICLE 17 MISCELLANEOUS §17.1 No Waiver.Neither the Town 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 Town 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 US 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 Town: Town Administrator Town of Estes Park 170 MacGregor Avenue P0 BOX 1200 Estes Park,Colorado 80517 21 0 0 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 2655 N.63rd St. Boulder,CO 80301 §17.5 Examination Of Records.The parties agree that any duly authorized representative of the Town 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.MI 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 Town,upon request not more than once every two (2)years,a list of electric utility-related real property owned in fee by the Company within the Town.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 Town,the Company shall provide the Town 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 Colorado Public Utilities Commission.Notwithstanding the foregoing,notice regarding any gas and electric filings that may affect utility service rates in the Town shall be sent to the Town upon filing. 22 o 0 §17.8 Information.Upon written request,the Company shall provide the Town Administrator or the Town Administrator’s designee with: A,a copy of the Company’s or its parent company’s consolidated annual financial report,or alternatively,a URL link to a location where the same information is available on the Company’s website; B.maps or schematics indicating the location of specific Company Facilities (subject to Town executing a confidentiality agreement as required by Company policy), including gas lines,located within the Town,to the extent those maps or schematics are in existence at the time of the request and related to an ongoing project within the Town. 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.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 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.Toxvn Liability.The Town shall not be liable for the payment of taxes,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 Town 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 Town to the extent prohibited by law,including ordinances and regulations of the Town. §17.11 Certificate of Public Convenience and Necessity.The Town 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 hill authorization to execute this Franchise.The Town acknowledges that 23 0 0 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. §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 Maieure.Neither the Town 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 Town and the Company related to the ifirnishing 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 Larimer County,State of Colorado. §17.18 Payment Of Expenses Incurred By Town In Relation To Franchise Agreement.The Company shall pay for expenses reasonably incurred by the Town for the adoption of this Franchise,including the publication of notices,publication of ordinances,and photocopying of documents. §17.19 Incremental Costs.The parties acknowledge that PUC rules,regulations and final decisions may require that incremental costs of complying with certain provisions of this Franchise be borne by customers of the Company who are located within the Town. §17.20 Conveyance of Town Streets.Public Utility Easements or Other Town Property.In the event the Town vacates,releases or sells,conveys,transfers or otherwise disposes of a Town Street,or any portion of a Public Utility Easement or Other Town Property in which Company Facilities are located,the Town shall reserve an easement in favor of the Company over that portion of the Street,Public Utility Easement or Other Town Property in which such utilities are located.The Company and the Town 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 Town shall no longer be deemed to be a Street or Other Town Property from which the Town may demand the Company temporarily or permanently Relocate Company Facilities at the Company’s expense. 24 0 0 IN WITNESS WHEREOF,the parties have caused this Franchise to be executed as of the day and year first above written. TOWN F ESTESYARK Mayor,Town o Estes Park ATTEST: .Th.( 9dwn Clerk,Town of Estes ParkU PUBLIC SERVICE COMPANY OF COLORADO By: Jerome Davis,Regional Vice President, Customer and Community Relations Attest: Assistant Secretary 25 0 0