CHAPTER 5   Franchises and Communication SystemsARTICLE I - Cable Television

ARTICLE II - Electric Franchise

ARTICLE III - Gas Franchise

ARTICLE IV - Emergency Telephone Service

ARTICLE I   Cable TelevisionSec. 5-1-10. Grant of authority.

Sec. 5-1-20. System installation; undergrounding.

Sec. 5-1-30. Town held harmless.

Sec. 5-1-40. Rules and regulations.

Sec. 5-1-50. Construction regulations.

Sec. 5-1-60. Relocation at Grantee expense.

Sec. 5-1-70. Police power.

Sec. 5-1-80. Franchise fee.

Sec. 5-1-90. Temporary removal of equipment.

Sec. 5-1-100. Line extension.

Sec. 5-1-110. Access to records.

Sec. 5-1-120. Agreement binding.

Sec. 5-1-10.   Grant of authority.

There is hereby granted to Fanch Cablevision of Colorado, L.P. (hereinafter called "Grantee") and to the Grantee's successors, lessees and assigns for the term of fifteen (15) years from the date hereof, extended by ten (10) years, to expire on June 8, 2112, the nonexclusive right, authority, power and franchise to establish, construct, acquire, maintain and operate a community antenna and closed-circuit electronic system within the Town to render, furnish and sell community antenna and closed circuit television and other electronic service from such system to the inhabitants of the Town and to use and occupy the streets and other public places within the corporate limits of the Town as such ways, places and limits now exist, or may hereafter exist, for its community antenna and closed-circuit television and other electronic system including the right to enter and construct, erect, locate, relocate, repair and rebuild in, on, under, along, over and across the streets, alleys, avenues, parkways, lanes, bridges and other places of the Town, all towers, cables, amplifiers, conduits and other facilities owned, leased or otherwise used by the Grantee for the furnishing of the community antenna and closed-circuit television and other electronic service within the Town during the continuance of the franchise hereby granted.

(Ord. 116A, 1987, §1; Reso. 11/18/96; Ord. 1-98, 1998, §1; Ord. 2-02, 2002, §1)

Sec. 5-1-20.   System installation; undergrounding.

(a) Any pavement, sidewalk or curbing taken up and all excavations made by the Grantee shall be done under permits issued for work by the proper officials of the Town and shall be made and done in such manner as to give the least inconvenience to the inhabitants of the Town and the public generally, and all such pavements, sidewalks, curbing and excavations shall be replaced and repaired in as good condition as before, with all convenient speed, by and at the expense of the Grantee, who shall at all times make and keep full and complete plats, maps and records showing the exact locations of its facilities located within the public ways of the Town; and keep a copy thereof on file in the office of the Town Clerk. The Grantee shall not place poles or other fixtures where the same will interfere with any gas, electric or telephone fixture, water hydrant or main, and all such poles or other fixtures placed in any street shall be placed at the outer edge of the sidewalk and inside the curb line, and those placed close to the line of the lot abutting on said alley, and then in such a manner as not to interfere with the usual travel of said streets, alleys and public ways.

(b) In the event utilities other than Grantee elect to relocate their lines underground to permit the removal of poles and wire stringing above ground, the Grantee shall relocate its cable to a point underground in order that poles supporting such cables be eliminated and removed from streets, alleys, avenues, parkways, lanes, bridges and other places of the Town.

(Ord. 116A, 1987, §2; Ord. 1-98, 1998, §1)

Sec. 5-1-30.   Town held harmless.

The Grantee agrees to hold and save the Town harmless from any and all liability that may arise out of the construction, maintenance, copyrights infringement, operation or use of the Grantee's system and works and the providing of such services, and to provide and keep in force adequate liability insurance therefor. The Grantee shall, before commencing the construction of its facilities, procure and furnish, at its own expense, and shall file with the Town Clerk certificates evidencing public liability insurance with limits of at least two hundred thousand dollars ($200,000.00) on any one (1) person and five hundred thousand dollars ($500,000.00) for any one (1) accident, and property damage insurance of at least one hundred thousand dollars ($100,000.00), all of said insurance to name the Grantee and the Town as insured parties. The Town shall notify the Grantee's representative in the Town within thirty (30) days after presentation of any demand or claim that may thus arise, whether by suit or otherwise, against the Town.

(Ord. 116A, 1987, §3)

Sec. 5-1-40.   Rules and regulations.

The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions of its business as shall be reasonable and necessary to enable the Grantee to exercise its rights and perform its service under the franchise and to assure an uninterrupted service to each and all of its customers. The Grantee shall have the right and power to fix, charge, collect and receive reasonable rates for community antenna and closed-circuit television and other electronic service furnished within the corporate limits of the Town, provided that the Board of Trustees reserves the right at all times during the existence of the franchise to fix and determine maximum rates to be charged by the Grantee for services in the Town to the extent permitted by law.

(Ord. 116A, 1987, §4; Ord. 1-98, 1998, §1)

Sec. 5-1-50.   Construction regulations.

The Town reserves the right of reasonable regulations of the erection, construction or installation of any facilities by the Grantee and to reasonably designate where such facilities are to be placed within the public ways and places; provided, however, that no towers or poles shall be erected by the Grantee without the express written consent of the Town, at locations to be approved by the Town, which consent shall be evidenced by a written permit from the Town Clerk or other authorized representative of the Town, and provided further that the Grantee shall, at its own expense, move its lines, cables, wiring, towers, poles and other apparatus to other locations when required by the Board of Trustees for the safety or convenience of the Town and inhabitants hereof.

(Ord. 116A, 1987, §5)

Sec. 5-1-60.   Relocation at Grantee expense.

At any time during the period of this franchise, the Town shall lawfully elect to improve, alter or change the grade of any street, alley or other public way, or shall determine, for reasons of safety or convenience of the public, that any cable, pole or apparatus of the Grantee should be relocated, the Grantee upon reasonable notice by the Town shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.

(Ord. 116A, 1987, §6; Ord. 1-98, 1998, §1)

Sec. 5-1-70.   Police power.

The Grantee shall at all times during the life of the franchise be subject to all lawful exercise of the police power by the Town and to such reasonable regulation as the Town shall hereafter by resolution or ordinance provide.

(Ord. 116A, 1987, §7; Ord. 1-98, 1998, §1)

Sec. 5-1-80.   Franchise fee.

In consideration of the rights, privileges and franchise hereby granted and as compensation to the Town for the use of its public ways and places by the Grantee and in lieu of all occupation and license taxes, the Grantee shall on or before the last day of January and the last day of July of each year in which the franchise is effective, pay to the Town a sum equal to five percent (5%) of the gross receipts from the sale of closed-circuit television or other services provided by the cable television franchisee within the then-existing corporate limits of the Town for the preceding six-month period ending on the last day of December and the last day of June, respectively.

(Ord. 116A, 1987, §8; Ord. 96-3, 1996, §1)

Sec. 5-1-90.   Temporary removal of equipment.

Whenever the Town shall permit the moving of any building or structure upon any of the public ways therein, the Grantee will, upon reasonable notice, properly make temporary removal of its poles, wires or other installations that interfere with such moving. The actual cost of the labor and materials necessarily required for such temporary removal shall be paid by the person obtaining such permit.

(Ord. 116A, 1987, §9)

Sec. 5-1-100.   Line extension.

The Grantee specifically agrees:

(1) To furnish said service to any place in the corporate limits of the Town as the same exist from time to time, upon application and tender of the required connection fee therefor; unless construction costs shall exceed two hundred fifty dollars ($250.00).

(2) That trunk and distribution lines normally will not be extended more than two hundred (200) feet per customer to be connected unless customers are willing to make a contribution in aid of actual cost of construction. Aerial extensions of a main line are expected to cost approximately one dollar ($1.00) per foot and underground extensions (barring difficult soil or terrain) are expected to cost approximately one dollar and fifty cents ($1.50) per foot.

(3) To provide, by means of its cables to its patrons in the Town, a television signal that will produce in a properly operating commercial television set a dependable and clear picture, free from distortion, or other irritating reception conditions associated with fringe areas, as well as satisfactory sound accompaniment thereto, except when any such condition is beyond the control of the Grantee.

(4) To maintain the system up to the terminals of the subscribers' television receivers.

(5) To construct, maintain and operate its system in such manner as not to interfere in any way with any television reception (either video or audio) or radio reception, by any set not connected to the system of the Grantee.

(6) To provide by means of its cables to its patrons in the Town an F.M. radio signal that will provide in such a television set or F.M. radio set clear static-free reception.

(7) To provide free of any charge, when it becomes available, educational network television programming, delivered on the cable of the system at an outside connection to each school in the Town for which request is made by the Board of Education.

(Ord. 116A, 1987, §10; Ord. 1-98, 1998, §1)

Sec. 5-1-110.   Access to records.

The Town shall have the right and privilege, by and through its auditor or other persons designated by it, to free access to the books, vouchers, contracts and records of the Grantee, its successors and assigns, for the purpose of ascertaining the gross receipts derived from the distribution and sale of said signal service in order to determine therefrom the amount to be paid to the Town.

(Ord. 116A, 1987, §11)

Sec. 5-1-120.   Agreement binding.

All provisions of this Article shall be binding upon the Grantee and all successors, whether expressly stated herein or not, and all the rights, authorities, powers, grants and privileges secured by this Article to the Grantee shall be held to inure to the benefit of the Grantee and all successors, lessees and assigns of the Grantee; provided that this franchise may not be assigned by the Grantee without the prior formal approval of the Board of Trustees except that assignment may be made to a corporation, effective so long as the same is shown to the Town to be legally controlled by the Grantee.

(Ord. 116A, 1987, §12)

ARTICLE II   Electric FranchiseSec. 5-2-10. Definitions.

Sec. 5-2-20. Grant of franchise.

Sec. 5-2-30. Notice of boundary changes.

Sec. 5-2-40. Exclusions.

Sec. 5-2-50. Supervision.

Sec. 5-2-60. Term of franchise.

Sec. 5-2-70. Franchise fee.

Sec. 5-2-80. Surcharge of franchise fees.

Sec. 5-2-90. Franchise fee payment in lieu of certain taxes and other fees.

Sec. 5-2-100. Payment schedule.

Sec. 5-2-110. Audit.

Sec. 5-2-120. Change of franchise fee and other franchise terms.

Sec. 5-2-130. Most favored nation clause.

Sec. 5-2-140. Contract obligation.

Sec. 5-2-150. Adequate supply at lowest reasonable cost.

Sec. 5-2-160. Service reliability.

Sec. 5-2-170. Energy assistance program.

Sec. 5-2-180. Town participation.

Sec. 5-2-190. Complaint process.

Sec. 5-2-200. Compliance with Town requirements.

Sec. 5-2-210. Installation and maintenance of United Power facilities.

Sec. 5-2-220. Excavation and construction.

Sec. 5-2-230. Relocation of United Power facilities.

Sec. 5-2-240. Service to new areas.

Sec. 5-2-250. Town not required to advance funds.

Sec. 5-2-260. Technological improvements.

Sec. 5-2-270. Customer complaints.

Sec. 5-2-280. Town regulation.

Sec. 5-2-290. Compliance with regulatory agencies.

Sec. 5-2-300. Continued compliance with air and water pollution laws.

Sec. 5-2-310. Restoration of service.

Sec. 5-2-320. Town accounts.

Sec. 5-2-330. Underground electrical lines.

Sec. 5-2-340. Overhead conversion of electrical lines.

Sec. 5-2-350. Review of undergrounding program.

Sec. 5-2-360. Cooperation with other utilities.

Sec. 5-2-370. Town use of underground facilities.

Sec. 5-2-380. Reports of United Power operations.

Sec. 5-2-390. Copies of tariffs and regulatory filings.

Sec. 5-2-400. Right of first purchase.

Sec. 5-2-410. Use of United Power land.

Sec. 5-2-420. Town use of United Power facilities.

Sec. 5-2-430. Joint use.

Sec. 5-2-440. Annexation to the Town.

Sec. 5-2-450. Town held harmless.

Sec. 5-2-460. Notice to United Power.

Sec. 5-2-470. Financial responsibility.

Sec. 5-2-480. Payment of expenses incurred by Town in relation to franchise.

Sec. 5-2-490. Consent of Town required.

Sec. 5-2-500. Town's right to purchase or condemn.

Sec. 5-2-510. Negotiated purchase price or condemnation award.

Sec. 5-2-520. Continued cooperation by United Power.

Sec. 5-2-530. Changing conditions.

Sec. 5-2-540. Uncontrollable forces.

Sec. 5-2-550. Judicial review.

Sec. 5-2-560. Breach and forfeiture.

Sec. 5-2-570. Other legal remedies.

Sec. 5-2-580. Continued obligations.

Sec. 5-2-590. Removal of facilities.

Sec. 5-2-600. Amendment to franchise.

Sec. 5-2-610. No waiver.

Sec. 5-2-620. Successors and assigns.

Sec. 5-2-630. Notice and representatives.

Sec. 5-2-640. Severability.

Sec. 5-2-650. Entire agreement.

Sec. 5-2-660. Third parties, rights to third parties.

Sec. 5-2-670. Prevailing party.

Sec. 5-2-680. Headings for reference only.

Sec. 5-2-690. Responsibility for language.

Sec. 5-2-700. Town approval.

Sec. 5-2-710. United Power approval.

Sec. 5-2-10.   Definitions.

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 the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words shall or will are mandatory and may is permissive. Words not defined in this Section shall be given their common and ordinary meaning.

Commission or CPUC means the Colorado Public Utilities Commission.

Distribution lines means the lines which are used to distribute power and energy to the consumer from the substation to the customer meter.

Electric distribution facility means that portion of United Power's electric system, which delivers electric energy from the substation breakers to United Power's meters including all devices connected to that system.

Electricity means all electric energy and electric service provided within the Town, including street lighting and traffic signal services

Emergencies means an event that directly influences the ability to provide service or is life-threatening.

Facilities means all physical components of United Power which are reasonably necessary to provide electricity within and through the Town for transportation, distribution and sale and include, but are not limited to, plants, works, systems, transmission and distribution structures, poles, lines, street lighting fixtures, equipment, pipes, mains, conduit, transformers, underground lines, wires, cables and building structures.

Mayor means the Mayor, his or her successor in office, and any employee of the Town designated to act as the official Town representative by the Mayor, or his or her successors, each of whom shall be authorized to act on behalf of the Town under this franchise.

Party or parties refers to and includes United Power and the Town, either singly or collectively as the context requires.

Public or dedicated easements refer to and are public easements created and available for use by investor-owned or other public utilities for their facilities.

Residents means all persons, businesses, industry, governmental agencies and any other entity whatsoever, presently located or to be hereinafter located, in whole or in part, within the territorial boundaries of the Town of Keenesburg.

Revenues means those amounts of money, which United Power receives from the sale of electricity to residents within the Town.

Service Area means the area within the Town of Keenesburg, which United Power is certified to serve.

Streets and public places means streets, alleys, viaducts, bridges, highways, avenues, boulevards, roads, lanes, public rights-of-way, easements, and places suitable for the placement of Facilities that are located in the Town.

Town means the municipal corporation designated as the Town of Keenesburg, located in the County of Weld, Colorado and includes the territory that currently is, or may in the future be, included within the boundaries of the Town of Keenesburg within Weld County.

Trustees or Board of Trustees means the legislative body of the Town of Keenesburg.

United Power means United Power, Inc., of Colorado, and its successors and assigns, but does not include its affiliates, subsidiaries or any other entity in which it has an ownership interest.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-20.   Grant of franchise.

The Town hereby grants to United Power, for the period specified herein, and subject to the conditions, terms and provisions contained in this franchise, a nonexclusive right to furnish, sell and distribute electricity within the Town, to Town and to all residents of the Town within United Power's service area as specified by the Commission. Subject to the conditions, terms and provisions contained in this franchise, the Town also hereby grants to United Power a nonexclusive right to acquire, construct, install, locate, maintain, operate and extend into, within and through the Town all facilities reasonably necessary to furnish, sell and distribute electricity within the Town as may be necessary to carry out the terms of this franchise subject to the Town's prior right of usage for and subject to the Town's reasonable exercise of the police powers, including but not limited to zoning, subdivision, permit and building code requirements. These rights shall extend to all areas of the Town within the service area as specified by the Commission, as the Town is now constituted, and to additional areas as the Town may increase in size by annexation or otherwise in said service area. The Town and United Power do not waive any of their rights under the statutes and Constitutions of the State of Colorado and the United States except as otherwise specifically set forth herein. The rights granted in this franchise encompass the right to provide street lighting service to the Town, for which the Town will pay in accordance with United Power's tariffs. These rights shall extend to all areas of the Town within United Power's certificated territory, as it is now constituted, and to additional areas as the Town may increase in size by annexation or otherwise within United Power's service territory.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-30.   Notice of boundary changes.

(a) United Power will provide the Town with a map defining the current United Power service area within the Town within thirty (30) days of the execution of this franchise and will transmit the map as an attachment to a letter from United Power to the Mayor.

(b) United Power will notify the Town within thirty (30) days of any changes in boundaries of United Power's service area. Such notice will be in written form addressed to the Mayor.

(c) The Town will notify United Power of a proposed annexation within fourteen (14) days of the Board of Trustees' approval of the proposed annexation ordinance. The Town will notify United Power of all annexations of land into the Town, which occur within United Power's service area, within thirty (30) days after the annexation. Failure by the Town to comply with the thirty (30) day time frame does not preclude the Town from collecting franchise fees on said annexation.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-40.   Exclusions.

(a) This franchise does not grant United Power the right, privilege or authority to engage in the cable television business, but does not prohibit joint use agreements between United Power and cable television companies for the use of facilities. Any joint use agreement entered into by United Power shall be consistent with United Power's obligations and responsibilities under this franchise.

(b) The right to use and/or occupy public streets, alleys, viaducts, bridges, roads and public places for the purposes set forth herein is not, and shall not be deemed to be, an exclusive franchise, and the Town reserves the right to itself to make or grant a similar use of public streets and other public places to any other person, firm or corporation.

(c) This franchise does not grant United Power the right, privilege or authority to use or occupy any land currently designated as parks or park-land of the Town or which may in the future be so designated except to the extent United Power is currently using or occupying said parks or park-land and as

otherwise authorized in writing by the Town. United Power shall not expand its use or occupancy of said parks or park-land except by specific written authorization of the Town; provided, however, that nothing herein contained shall limit or restrict United Power's right to maintain, renovate, repair or replace any such facilities currently occupying said parks or park land, subject to the conditions set forth in this franchise. The Town may require removal, relocation or undergrounding of facilities from any parks or park land subject to conditions set forth herein.

(d) The Town retains the following rights in regard to this franchise:

(1) To use, control and regulate, through the exercise of its police power, Town streets, public easements and other public places and the space above and beneath them.

(2) To impose such other regulations as may be determined by the Board of Trustees to be necessary in the exercise of its police power to protect the health, safety, welfare and convenience of the public.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-50.   Supervision.

(a) The Mayor, or the Mayor's designated representative, is hereby designated the official of the Town having full power and authority to take appropriate action for and on behalf of the Town and its inhabitants to enforce the provisions of this franchise and to investigate any alleged violations or failures of United Power to comply with the provisions hereto or to adequately and fully discharge its responsibilities and obligations hereunder. The failure or omission of said official Town representative to so act shall not constitute any waiver or estoppel nor limit independent action by other Town officials.

(b) In order to facilitate such duties of the said official Town representative, United Power agrees as follows:

(1) To allow said official Town representative or his or her designee reasonable access to any part of United Power's plant, works and systems, and that said Town official may make and supervise tests to determine the quality of the electric service supplied to the customers of United Power. United Power shall provide the Town with all amendments and rate changes. Access to United Power facilities described in this paragraph and the one immediately below shall be on an "appointment made" basis during normal business hours. The Town official(s) provided access shall be accompanied by at least one (1) employee of United Power of its choosing. The Town official(s) shall comply with all United Power requirements for such access, and particularly safety requirements. For safety reasons, United Power shall have the right to designate - at its sole discretion - the method, means, and timing of such access, which access United Power can terminate or deny at its discretion.

(2) To grant said official Town representative or his designee reasonable access to the books and records of United Power, insofar as they relate to any matters covered by this franchise, upon advance appointment made during normal business hours.

(3) To provide said Town official with such reasonable and necessary reports containing or based on information readily obtainable from United Power's books and records as the Town may from time to time request with respect to the electric service supplied under this franchise.

(4) To meet at least annually with said official Town representative to share information useful in coordinating management, operation and repair of the facilities of United Power and the operations and property of the Town.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-60.   Term of franchise.

The term of this franchise shall be for twenty (20) years, beginning with the effective date of this Franchise and expiring twenty (20) years hence.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-70.   Franchise fee.

In consideration for the grant of this franchise, United Power shall pay the Town a sum equal to three percent (3%) of all revenues received from the sale of electricity within the Town. Payment of the franchise fee shall not exempt United Power from any lawful taxation upon its property or sales, except as set forth in Section 5-2-90 below. All amounts paid to United Power by the Town or use of electricity by any of its departments shall be excluded from computation of the franchise fee.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-80.   Surcharge of franchise fees.

United Power may charge a franchise fee to all Town residents that use Facilities of United Power in Town to obtain electrical service. No franchise fee shall be charged to the Town for electrical service provided to the Town for its own consumption, including for street lights, traffic signals, and Town-owned buildings.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-90.   Franchise fee payment in lieu of certain taxes and other fees.

The Town accepts payment of the franchise fee by United Power in lieu of any occupation tax, occupancy tax, license tax or similar tax or fee the Town might charge United Power or its subcontractors for the privilege of doing business in the Town, for the use or occupation of Town streets and public places or for the installation, operation and maintenance of United Power facilities. Payment of the franchise fee does not exempt United Power from any lawful taxation upon its property or sales taxes or other fees or taxes assessed generally upon businesses.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-100.   Payment schedule.

Unless otherwise specifically provided herein, payment of the franchise fee accruing after the effective date of this franchise shall be made in monthly installments not more than twenty (20) days following the close of the month for which payment is to be made for the franchise fees resulting from the sale of electricity. 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 Town in care of the Town Treasurer.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-110.   Audit.

The Mayor, or official Town representative, shall have access to the metering records of United Power during normal business hours upon reasonable notice for the purpose of auditing to ascertain that the franchise fee has been correctly computed and paid. All information obtained by the Mayor during a franchise fee audit shall be kept confidential and shall be utilized for the sole purpose of verifying that the franchise fee has been correctly computed and paid.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-120.   Change of franchise fee and other franchise terms.

The Board of Trustees, upon giving ninety (90) days notice to United Power, may request that the Town and United Power review the franchise fee and other financial aspects of the Franchise. After discussion and agreement, the Board pf Trustees and United Power may change the franchise fee payments, or other provision of this franchise to cause the Town to receive a greater franchise fee or other significant financial benefit. In no event shall the franchise fee be higher than the highest consideration paid by United Power to any municipality in the State of Colorado.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-130.   Most favored nation clause.

United Power shall report to the Town, within sixty (60) days of execution, the terms of any franchise or of any change of franchise in any other municipality that contains a franchise fee or other significant financial benefit greater than the franchise fee or other significant financial benefit to the Town contained in this franchise. United Power shall also report about such other provisions which may be beneficial to the Town. If the Board of Trustees decides that the franchise fee or other significant financial benefit should be incorporated into the franchise, such change shall be provided for by ordinance; any such change shall not be considered an amendment, renewal or enlargement of this Franchise.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-140.   Contract obligation.

This franchise constitutes a valid and binding contract between United Power and the Town. In the event that the franchise fee specified in this franchise is declared illegal, unconstitutional or void for any reason by final judgment of any court (or other proper authority), United Power shall be contractually bound to pay monthly fees to the Town in an aggregate amount that would be, as near as practical, equivalent to the amount which would have been paid by United Power as a franchise fee hereunder.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-150.   Adequate supply at lowest reasonable cost.

United Power shall work with its wholesale power supplier to take all reasonable and necessary steps to assure an adequate supply of electricity to United Power's customers at the lowest reasonable cost consistent with long term supply reliability. United Power shall work with its wholesale power supplier to meet the goal of assuring that if electric power and/or energy shall be made available to United Power from its wholesale power suppliers, and from whatever source, that power shall also be provided to the

Town at its lowest reasonable cost, and given United Power's reasonable margin requirements, power shall not be provided below cost.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-160.   Service reliability.

(a) United Power shall be excused from the performance of its obligations hereunder, to the extent that performance of said obligations are delayed due to: failure of transmission to the Town beyond United Power's responsibility and control; strikes; acts of public enemies; war; orders of military authority; insurrections; riots; epidemics; tornadoes; landslides; earthquakes; floods; any Act of God; or any other reason beyond United Power's control. Notwithstanding the foregoing, if the supply of electricity to United Power's customers should be interrupted due to any circumstance beyond United Power's control, United Power shall take all necessary and reasonable actions to restore such supply at the earliest practicable time.

(b) If the supply of electricity to United Power's customers should be interrupted due to a planned outage, except cases of emergency outage repair, United Power shall notify its customers in advance of the planned outage.

(c) United Power shall provide the Town a telephone number that is not available to the public from which the Town will be able to obtain status reports from United Power on a twenty-four-hour basis concerning interruptions of the supply of electricity in any portion to the Town.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-170.   Energy assistance program.

To the extent such program shall not increase costs to United Power's customers within the Town, United Power shall implement a low-income energy assistance program that does not constitute undue discrimination prohibited by state law. The purpose of the low-income assistance program will be two-fold: to reduce uncollectibles and to assist low-income customers.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-180.   Town participation.

(a) The Town shall have the right to approve facility site plans within the Town.

(b) Upon reasonable notice to United Power, the Town shall have the right to hold public hearings related to United Power's facilities, site selection, undergrounding of overhead lines, construction and service quality. United Power agrees to fully participate in such public hearings as requested by the Town and to provide to the Town information available to United Power that relates to the hearings described in this Section.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-190.   Complaint process.

United Power shall maintain a process to deal with consumer complaints, which shall be made publicly available.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-200.   Compliance with Town requirements.

Representatives of the Town and United Power shall meet annually to discuss annual and long-term planning for capital improvement projects contemplated by each within the Town. United Power shall include within its capital improvement projects the plans of the Town relating to same. United Power and the Town shall exchange copies of their reports or plans regarding annual and long-term planning for capital improvement projects with descriptions of construction activities, including, to the extent known, the timing and method of construction.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-210.   Installation and maintenance of United Power facilities.

Except for emergencies, the construction, excavation, installation, maintenance, renovation, repair and replacement of any facilities by United Power shall be subject to permitting, inspection and approval of location by the official Town representative. Such regulation shall include but not be limited to the following matters: location of facilities in the streets, alleys and dedicated easements; curb and pavement cuts; and disturbance and reconstruction of pavement, sidewalks and surface of streets, alleys, dedicated easements and driveways. All United Power facilities shall be installed so as to cause a minimal amount of interference with such property. United Power facilities shall not interfere with any water mains or sewer mains or Town telecommunications facilities, traffic signal lights, parks or any other municipal use of the Town's streets and right-of-ways except to the extent the Town agrees through the permit process. United Power shall erect and maintain its facilities in such a way as to minimize interference with trees and other natural features and vegetation. United Power shall keep in good working order all facilities constructed, erected or used within the Town. United Power and all its subcontractors shall comply with all permitting, local regulations and ordinances. In emergencies, United Power shall, after the fact, comply with permitting and inspection requirements of the Town. United Power shall install, repair, renovate and replace its facilities with due diligence in good and workmanlike manner, and United Power's facilities will be of sufficient quality and durability to provide adequate and efficient electric service to the Town and its residents.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-220.   Excavation and construction.

All construction, excavation, maintenance and repair work done by United Power shall be done in a timely manner, which minimizes inconvenience to the public and individuals. All public and private property disturbed by United Power construction or excavation activities caused as a result of work within the streets and public easements shall be promptly restored by United Power at its expense to its former condition, but in no event less than a serviceable condition. All restoration work under this section shall be subject to inspection by the official Town representative and compliance by United Power with reasonable remedial action required by said official pursuant to inspection. United Power shall comply with the Town's requests for reasonable and prompt action to remedy all damage to public and private property caused by repair work within the streets and public easements. If United Power fails to perform its restoration and remediation of public property to substantially its former condition upon thirty (30) days' notice by the Town (if it does not threaten public safety) or such longer time period as may be mutually agreed to by the parties, the Town shall have the right to perform said restoration and remediation at United Power's expense. If repair work is necessary for the protection of the health, safety or welfare of the public, the Town may cause repairs to be made at United Power's expense unless United Power makes such repairs promptly upon the Town's request.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-230.   Relocation of United Power facilities.

If at any time the Town requests United Power to relocate any facility installed or maintained in public streets, alleys, rights-of-way or easements pursuant to this franchise or, in order to permit the Town to make any public use of rights-of-way, dedicated easements or streets, to construct any public improvement or to build any public project, such relocation shall be made by United Power at its sole expense and shall be completed within a reasonable time, not to exceed ninety (90) days from the date on which the Town requests that such relocation work commence; provided, however, that such time period may be enlarged with the written approval of the Town. United Power shall, in any event, be granted an extension of time for completion of the relocation equivalent to any delay caused by conditions not under its control. Following relocation of United Power facilities, all property disturbed by said relocation shall be restored to substantially its former condition, but in no event, in a less than serviceable condition, by United Power at its sole expense. If the facilities requested to be relocated are on or within private land or easements, the Town will pay all costs of relocation.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-240.   Service to new areas.

If, during the term of this franchise, the boundaries of the Town are expanded within United Power's service area, United Power shall extend service to residents of the newly incorporated areas, and United Power shall be paid therefor, in accordance with United Power's extension policy set forth in its tariffs at the earliest practicable time. Service to annexed areas shall be in accordance with the terms of this franchise, including payment of franchise fees as defined in Section 5-2-70.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-250.   Town not required to advance funds.

Upon receipt of the Town's authorization for billing and construction, United Power shall extend its Facilities to provide electric service for municipal uses within or outside the Town limits without requiring the Town to advance funds prior to construction. The Town shall, however, pay United Power for such extension and work within thirty (30) days of a presentation of a bill by United Power to the Town.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-260.   Technological improvements.

United Power shall install future improvements and technological advances to its equipment and service within the Town, upon reasonable notice to the Town, when such improvements and advances are technologically and economically feasible and safe and beneficial to the Town.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-270.   Customer complaints.

United Power shall maintain a policy to address consumer complaints, which is set forth in its publicly available tariffs.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-280.   Town regulation.

The Town expressly reserves, and United Power expressly recognizes, the Town's right and duty to adopt, from time to time, in addition to the provisions herein contained, such provisions, ordinances and rules and regulations as may be deemed necessary by the Town, in the exercise of its police power, to protect the health, safety and welfare of its citizens and their properties. United Power shall comply with such applicable laws.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-290.   Compliance with regulatory agencies.

United Power shall assure that its distribution Facilities comply with the standards promulgated by all regulatory agencies with jurisdiction over United Power's services.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-300.   Continued compliance with air and water pollution laws.

United Power shall use its best efforts to take measures which will result in its Facilities and operations meeting the standards required by applicable town, county, state and federal air and water pollution laws, and laws regulating transportation of hazardous materials. Upon the Town's request, United Power will provide the Town with a status report of such measures.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-310.   Restoration of service.

In the event United Power's electric system, or any part thereof is partially or wholly destroyed or incapacitated, United Power shall use due diligence to restore its system to satisfactory service within the shortest practicable time.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-320.   Town accounts.

On request by the Town, United Power shall provide a list of Town account numbers and items metered.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-330.   Underground electrical lines.

United Power shall place all newly constructed electrical distribution lines underground unless approved otherwise by the Town.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-340.   Overhead conversion of electrical lines.

United Power agrees to allocate an annual amount, equivalent to one and one-half percent (1½%) of the preceding calendar year's electric revenues derived from customers within the Town, for the purpose of undergrounding United Power's existing overhead electric distribution facilities within the Town, at the expense of United Power, as requested by the Town (the "Undergrounding Funds"). Any unexpended portion of the one-and-one-half-percent revenues shall be carried over to succeeding years. Until three (3) years from the conclusion of this contract and upon request by the Town, United Power agrees to anticipate amounts to be available for up to three (3) years in advance to be used to underground its overhead distribution Facilities, as requested by the Town. Any amounts so advanced shall be credited against amounts to be expended in succeeding years until such advance is eliminated. The Town and United Power shall mutually plan in advance the undergrounding projects which shall be undertaken according to the provisions of this Section. United Power shall not withhold approval of the plans of the Town except where essential for safety, or protection of the operating integrity of United Power's electric system. United Power shall use its best efforts to inform the Town when undergrounding funds are available from sources other than United Power. Funds to be expended pursuant to this Section shall not be used in any project or situation for which and to such extent there are funds otherwise available to United Power, but rather shall be used in projects and situations for which no funds are otherwise available. If, after any and all undergrounding of United Power lines has taken place and no more United Power overhead lines remain in the Town, there are any undergrounding funds remaining, such funds may be used by the Town for other electric utility related projects in the Town.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-350.   Review of undergrounding program.

Representatives of both the Town and United Power shall meet periodically - at mutually convenient and agreed upon times - to review United Power's undergrounding program as is outlined in Section 5-2-340. This review shall include:

(1) Undergrounding programs, including conversions and replacements, which have been accomplished or are underway by United Power, together with United Power's plans for additional undergrounding.

(2) Undergrounding projects anticipated by the Town.

Such meetings shall be held to achieve a continuing program for the orderly undergrounding of electrical lines in the Town.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-360.   Cooperation with other utilities.

When undertaking a project of undergrounding, the Town and United Power shall work with other utilities or companies which have their lines overhead to attempt to have all lines undergrounded as part of the same project. When other utilities or companies, such as cable television and telephone companies or other utilities with overhead facilities, embark upon a program of underground construction where United Power has overhead Facilities, United Power shall cooperate with these utilities and companies and undertake to underground United Power Facilities as part of the same project at no cost to the Town.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-370.   Town use of underground facilities.

If United Power installs new underground conduit or opens a trench or replaces conduit, United Power shall provide adequate notice to the Town to permit additional installation of similar conduit and pull wire for the Town. If the Town wants additional similar conduit and pull wire installed, it will so notify United Power and provide similar conduit and pull wire at its expense to United Power, which will install it without further cost to the Town, provided that such action by the Town will not unreasonably interfere with United Power's Facilities or delay the accomplishment of the project.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-380.   Reports of United Power operations.

(a) United Power shall submit reasonable financial and operating reports containing or based on information available from United Power's books and records annually to the Town and other reports the Town may from time to time request with respect to the operations of United Power under this Franchise, provided that such information can be provided at a reasonable cost. Such reports shall be clearly and conspicuously marked "CONFIDENTIAL" by United Power, and the Town shall keep the reports as confidential and not subject to public inspection, except as otherwise required by law. Within thirty (30) days of written request from the Town, United Power shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under state or federal law. The Town acknowledges that United Power will comply with state and federal law in this regard, and such laws will take precedence over any provisions of this paragraph. Such form of reports may be changed from time to time as mutually agreed between the Town and United Power.

(b) The Town requests the following reports on or before May 1 of each year beginning after the effective date of this franchise:

(1) On an annual basis, the modified debt service calculation; report of margins collected by United Power; and the rate base in place to serve the Town.

(2) Upon request by the Town, a list of real property and leasehold interests in real property owned by United Power within the municipal boundaries of the Town, for the purpose of calculating property taxes.

(3) Short-term (three [3] years or less) and long-term (over three [3] years) plans for all major capital improvements, construction and excavation within the Town or affecting service to the Town and its residents.

(4) Upon request, a map (or computer disk) indicating the location of United Power distribution Facilities within and contiguous to the Town.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-390.   Copies of tariffs and regulatory filings.

Unless otherwise requested, United Power shall file with the Town all proposals to change rates relating to service by United Power to its customers. Upon request by the Town, United Power shall provide the Town with copies of all rules, regulations, rate tariffs and policies.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-400.   Right of first purchase.

If at any time during the term of this Franchise, United Power proposes to sell or dispose of any of its real property located within the Town, it shall grant to the Town the right of first purchase of same. United Power shall obtain an appraisal by a qualified appraiser on any such real property, and the Town shall have sixty (60) days after receipt of the qualified appraisal in which to exercise the right of first purchase at the appraised value by giving written notice to United Power. If the Town is not satisfied with the appraisal tendered by United Power, the Town may obtain, within thirty (30) days of United Power's tender of its appraisal, and at the Town's cost, a second appraisal which, upon receipt, shall be tendered to United Power. If United Power is satisfied with the Town's appraisal, then, upon notice, the Town shall purchase the property at the price set forth in the second appraisal. If United Power is not satisfied with the second appraisal, then the appraisers issuing the first and second appraisals shall choose a third appraiser who will also appraise the property. The Town and United Power shall share the cost of the third appraiser equally and shall be bound by the value concluded by the third appraiser. The sixty-day time period by which the Town may have the first right to purchase the property shall be extended thirty (30) days from the dates of the second or third appraisal (as the case may be), and the Town shall close on the sale and pay the value set forth in the controlling appraisal within said thirty (30) days. Should the Town not provide the required written notice that it wishes to purchase the subject property within the time frames above, United Power may proceed to negotiate with others for the sale of such property, provided that United Power may not sell such property for an amount less than ninety-five percent (95%) of the appraised value without first providing the Town an opportunity to purchase such property at such lesser price, in which instance the Town shall have thirty (30) days to determine if it wishes to purchase such property.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-410.   Use of United Power land.

United Power shall grant to the Town use of distribution and transmission rights-of-way which it now, or in the future, owns or has an interest in within the Town for the purposes set forth in the Colorado Parks and Open Space Act of 1984, provided that United Power shall not be required to allow such use in any circumstance where such use would interfere with United Power's use of the transmission rights-of-way. Such grant shall be made only if United Power is given at least sixty (60) days' advance notice of the Town's desired use. Any use by the Town pursuant to this Section shall be made at the Town's sole expense and shall be subject to any safety or other requirements imposed by United Power. The Town hereby expressly understands that United Power's rights-of-way contain electrical lines which could prove deadly if contact is made with any electrical current. The Town shall hold harmless and indemnify United Power for any and all liability and damages associated with the Town's use of United Power's distribution and transmission rights-of-way and poles, including the payment of United Power's reasonable attorney and expert witness fees, if applicable, except if the loss is caused by United Power's own negligence.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-420.   Town use of United Power facilities.

The Town shall be permitted, for the purpose of stringing wires, to make all use of United Power's poles and overhead structures, provided that such use does not unreasonably interfere with United Power's use of such systems for distribution or transmission of electricity or create an unreasonable hazard, and provided further there is space available. Such use by the Town shall be without cost.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-430.   Joint use.

United Power shall permit the use of United Power Facilities by others for a reasonable fee provided that: (1) such users are not in competition with United Power; (2) such users obtain the permission of the Town; (3) such joint use does not unreasonably create a safety hazard; and (4) United Power shall assume no liability nor shall it be put to any additional expense in connection therewith.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-440.   Annexation to the Town.

When any property owned by United Power is or becomes eligible for voluntary annexation to the Town and is not simultaneously eligible for voluntary annexation to another municipal corporation, United Power shall petition to annex the same to the Town upon request made by the Town, provided that no condition of such annexation shall impair United Power's ownership or then-existing use of its property and water or water rights for public utility purposes. Except as herein provided, United Power agrees to meet all terms and conditions imposed upon annexation by the Town that are no more stringent than those imposed generally upon property owners seeking annexation of their land to the Town.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-450.   Town held harmless.

United Power shall construct, maintain and operate its Facilities in a manner which provides reasonable protection against injury or damage to persons or property. United Power shall hold harmless and indemnify the Town and its respective officers, directors and employees from and against all lawsuits, liability, damage, claims, demands, judgments and losses whatsoever in nature, and shall reimburse the Town for reasonable attorney and expert witness fees and other expenses arising out of the operations of United Power within the Town and the securing of and exercise by United Power of the franchise rights as provided herein, and occurring as a result of the negligence or omission of the non-indemnifying party. No payments related to this Section shall be surcharged to customers located within the Town. Notwithstanding any provision hereof to the contrary, United Power 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 agents.

(Ord. 2009-03, §1,2)

Sec. 5-2-460.   Notice to United Power.

Within sixty (60) days after receipt of the same by the Town Attorney, the Town will provide notice to United Power of the pendency of any claim or action against the Town arising out of the exercise by United Power of its franchise rights. United Power will be permitted, at its own expense, to appear and defend or to assist in defense of such claim.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-470.   Financial responsibility.

(a) At the time of presentation of the letter accepting the terms of this Franchise, United Power shall submit to the Town certificates of insurance to demonstrate that United Power has the following

insurance coverages to meet its obligations under this Article: worker's compensation insurance; comprehensive general liability; and automobile liability insurance. The Town shall be listed as an additional listed insured for the comprehensive general liability insurance. United Power shall continuously maintain such coverage during the term of the Franchise, and the certificates of insurance shall be kept current by annual revisions as of January 1 during the term of the Franchise. The Town reserves the right to request and receive a copy of an insurance certificate(s) from United Power's insurers, demonstrating the placement of the coverages required hereunder. The Town may require, from time to time, and United Power agrees to provide, additional reasonable funding of United Power's indemnification obligations as a self-insured, if United Power is acting as a self-insured. Nothing herein contained shall create any right in any third party or cause the Town to be liable to any third party for a failure to so act.

(b) The parties hereto understand and agree that the Town, its officers and its employees are relying on, and do not waive or intend to waive by any provision of this agreement, the monetary limitations (presently one hundred fifty thousand dollars [$150,000.00] per person and six hundred thousand dollars [$600,000.00] per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101, et seq., C.R.S., as from time to time amended, or otherwise available to the Town, its officers or its employees.

(c) The Town and United Power hereby waive and release any and all rights of action for negligence against the other which may hereafter arise on account of damage to their respective property resulting from any fire, or other casualty of the kind covered by standard fire insurance policies with extended coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Town and United Power. These waivers and releases shall apply between the Town and United Power, and they shall also apply to any claims under or through either one as a result of any asserted right of subrogation. All policies of insurance covering property damage obtained by either the Town or United Power concerning the property shall waive the insurer's right of subrogation against the other party.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-480.   Payment of expenses incurred by Town in relation to franchise.

At the Town's option, United Power shall pay in advance or reimburse the Town for expenses incurred in publication of notices and ordinances, photocopying of documents, and staff and consulting expenses arising from the negotiations and implementation of the Franchise. All the expenses pursuant to this Section shall not be surcharged to Town customers.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-490.   Consent of Town required.

(a) United Power shall not sell, transfer or assign this Franchise or any rights under this Franchise to another, by stock exchange, merger or otherwise, excepting only corporate reorganizations of United Power not involving a third party, unless the Town shall approve in writing such sale, transfer or assignment of rights. Approval of the sale, transfer or assignment shall not be unreasonably withheld. The charging or collection of the transfer fee hereinafter set forth is conclusively deemed reasonable.

(b) In order that the Town may share in the value this Franchise adds to United Power's operations, any such transfer or assignment by United Power of rights under this franchise requiring Town approval under Subsection (a) above shall require that the transferee promptly pay to the Town an amount that is equal to the lesser of i) twenty-five thousand dollars ($25,000.00; or ii) three (3) times the most recent twelve (12) months of franchise fees collected by the Town from United Power. In the event only a portion of the Service Area is transferred, the transfer fee shall be calculated by

multiplying the greater of i) and ii) above by the number of customers transferred, divided by the then-current number of customers served by United Power in the Town before said transfer. Such transfer fee shall not be recovered from the Town or from the Town residents or property owners through electric rates of customers in the Town or by a surcharge of the residents of the Town by the transferee or United Power.

(c) Any sale, transfer or assignment of any electric Facilities, service territory or public utility franchises which cause service degradation within United Power's Service Area or results in a significant increase in rates to Town customers shall constitute a violation of this Franchise.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-500.   Town's right to purchase or condemn.

The right of the Town to construct, purchase or condemn any public utility works or ways, and the right of United Power in connection therewith, as provided by the Colorado Constitution and Statutes, are hereby expressly reserved. The Town may exercise the option to purchase or condemn at any time during the term of the Franchise.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-510.   Negotiated purchase price or condemnation award.

Upon the exercise of the Town's option to purchase, the parties shall negotiate in good faith to determine a mutually acceptable purchase price. This purchase price will be in the range of original cost less depreciation (lower range) and replacement cost less depreciation (upper range). No value shall be given to the Franchise. If the Town and United Power cannot reach agreement as to the purchase price or acceptable payment terms within ninety (90) days after commencement of negotiations, the Town may commence condemnation proceedings and each party shall have the rights provided by law relating to condemnation, and United Power shall be entitled to and shall receive and retain that part of the award or price paid by the Town attributable to the improvements, fixtures, betterments, antennas, equipment and all other things, and rights of United Power; however, no award shall be made for the value of the Franchise.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-520.   Continued cooperation by United Power.

(a) In the event the Town exercises its option to purchase or condemn, United Power agrees that it will continue to supply in whole or in part any service it supplies under this franchise, at the Town's request, for the duration of the term of this franchise. United Power's Facilities shall be available for continued service until nine (9) months after a final order is entered in a condemnation proceeding or the effective date of a purchase agreement between the parties; provided however, that said obligation to maintain Facilities shall not exceed a twenty-four-month period after the termination of the Franchise. United Power shall continue to provide service pursuant to the terms of this Franchise for said twenty-four (24) months until the Town has either purchased or condemned United Power's Facilities or alternative arrangements have been made to supply electricity to the Town and its residents, whichever date shall occur earlier. The Town shall not pay for any services no longer required.

(b) United Power shall cooperate with the Town by making available then-existing pertinent United Power records, which are not privileged, to enable the Town to evaluate the feasibility of acquiring United Power Facilities. United Power shall not be obligated to conduct studies or accrue data

without reimbursement by the Town, but will make such studies if reimbursed its actual costs for the same. United Power shall take no action which could inhibit the Town's ability to effectively or efficiently use the acquired systems. At the Town's request, United Power shall supply electricity for use by the Town in a Town-owned system.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-530.   Changing conditions.

United Power and the Town recognize that many aspects of the electric utility business are currently the subject of discussion, examination and inquiry by different segments of industry and affected regulatory authorities and that these activities may ultimately result in fundamental changes in the way United Power conducts its business and meets its service obligations. In recognition of the present state of uncertainty respecting these matters, United Power and the Town agree, on request of the other, to negotiate in good faith an amendment of this Franchise or enter into separate, mutually satisfactory arrangements to effect a proper accommodation of such developments.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-540.   Uncontrollable forces.

Neither the Town nor United Power shall be in breach of this Franchise if a failure to perform any of the duties under this Franchise is due to uncontrollable forces, which shall include but not be limited to accidents, breakdown of equipment, shortage of materials, acts of God, floods, storms, fires, sabotage, terrorist attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of government and other causes or contingencies of whatever nature beyond the reasonable control of the party affected, which could not reasonably have been anticipated and avoided.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-550.   Judicial review.

Any such termination of this Franchise shall be subject to judicial review as provided by law.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-560.   Breach and forfeiture.

(a) Breach. If either party fails to perform any of the terms and conditions of this franchise and such failure is within United Power's control, the Town may notify United Power of the specific failure and shall allow United Power a reasonable time within which to remedy the failure. If the defaulting party does not remedy the failure and the failure is of a substantial nature, the non-defaulting party may terminate this franchise; provided, however, that the Town may only terminate this franchise following a full evidentiary hearing and affirmative vote of no less than seventy-five percent (75%) of all members of the Board of Trustees.

(b) Forfeiture. If United Power fails to perform any of the terms or conditions of this franchise and such failure is not an occurrence by force majeure, the Town, acting by and through its Board of Trustees, may determine, after hearing, that such failure is substantial. Upon receiving notice of such determination, United Power shall commence remedial action within thirty (30) days of said notice and shall have a reasonable time, not to exceed six (6) months, within which to remedy the violations unless the parties otherwise agree in writing. If, after such reasonable time, corrective actions have

not been successfully taken, the Town, acting by and through its Board of Trustees, shall determine whether any or all rights and privileges granted to United Power under this franchise shall be forfeited. Such termination of the franchise shall be by no less than seventy-five percent (75%) vote of all members of the Board of Trustees. For the purposes of this Section, the term "force majeure" shall mean acts of God, strikes, lockouts, acts of public enemies, wars, blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts, civil disturbances, explosions and any other causes not within the control of the party claiming a suspension, which by the exercise of due diligence such party shall not have been able to avoid or overcome.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-570.   Other legal remedies.

Nothing herein contained shall limit or restrict any legal rights that the Town or United Power may possess arising from violation of the terms of this franchise.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-580.   Continued obligations.

Upon forfeiture, United Power shall continue to provide service to the Town and its residents until the Town makes alternative arrangements for such service. If United Power fails to provide continued services, it shall be liable for damages to the Town and its residents.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-590.   Removal of facilities.

At the expiration of the franchise term (if the franchise is not renewed), or if the franchise is forfeited or terminated by United Power, upon request from the Town and within a reasonable time, United Power, at its expense, shall remove from the public streets and public easements all overhead distribution facilities belonging to United Power, which are not otherwise purchased by the Town in accordance with Section 5-2-400 of this franchise. Further, United Power shall remove at its expense all underground electric distribution facilities within a reasonable time after receiving written notice from the Town that such underground distribution facilities constitute a hazardous condition or interfere with a public use of the subsurface of the public streets and easements. All property affected by such removal shall be restored by United Power to substantially its former condition after said removal. United Power 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 agreements with the Town.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-600.   Amendment to franchise.

This franchise represents the entire agreement between the parties and there are no oral or collateral agreements or understandings. This franchise may be amended only by an instrument in writing signed by United Power and the Town. The word "amendment," as used in this Section, does not include a change in the franchise fee or other franchise terms as authorized in Section 5-2-120.

(Ord. 2009-03, §1 &2)

Sec. 5-2-610.   No waiver.

Neither the Town nor United Power 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 (1) or more occasions, to insist upon or to seek compliance with any such terms and conditions. Further, neither the Town nor United Power waives any rights under the statutes and constitution of the State of Colorado or of the United States, except as otherwise specifically set forth herein.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-620.   Successors and assigns.

The rights, privileges, franchises and obligations granted and contained in this franchise shall inure to the benefit of and be binding upon United Power, its successors and assigns as the same may succeed to the rights of United Power pursuant to Section 5-2-20.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-630.   Notice and representatives.

Both parties shall designate from time to time in writing, representatives for United Power and the Town who will be the person(s) to whom notices shall be sent regarding any action to be taken under this franchise. Notice shall be in writing and forwarded by certified mail or hand delivery to the persons and addresses as hereinafter stated unless the names and addresses are changed at the written request of either party, delivered in person, or by certified mail. Until any such change shall hereafter be made, notices shall be sent to the Mayor. Currently the addresses are as follows:

For the Town of Keenesburg:

Mayor140 S. Main StreetP.O. Box 312Keenesburg, CO 80643

For United Power:

Chief Executive Officer500 Cooperative WayBrighton, CO 80603

(Ord. 2009-03, §§1, 2)

Sec. 5-2-640.   Severability.

Should any one (1) or more provisions of this franchise be determined to be illegal or unenforceable, all other provisions nevertheless shall remain effective; provided, however, that the parties shall forthwith enter into good faith negotiations and proceed with due diligence to draft a replacement provision that will achieve the original intent of the parties hereunder.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-650.   Entire agreement.

This franchise constitutes the entire agreement of the parties. There have been no representations made other than those contained in this franchise.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-660.   Third parties, rights to third parties.

Nothing herein contained shall be construed to provide rights to third parties.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-670.   Prevailing party.

In any judicial or administrative action to enforce any of the terms or conditions of this franchise, the prevailing party shall be entitled to recover its costs and expenses incurred in such action, including reasonable attorney fees.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-680.   Headings for reference only.

The headings used in this franchise are for references only and convey no substantive rights or impose no substantive obligations on the parties.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-690.   Responsibility for language.

The parties hereby acknowledge that each bears equal and identical responsibility for the language of this franchise. In case of ambiguity, there shall be no presumption based upon responsibility for drafting this franchise, and the franchise shall not be construed against one party in favor of another.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-700.   Town approval.

This grant of franchise shall not become effective unless approved in accordance with the Trustees.

(Ord. 2009-03, §§1, 2)

Sec. 5-2-710.   United Power approval.

United Power shall file with the Town Clerk its written approval of this franchise and of all of its terms and provisions at least ten (10) days prior to public hearings set for consideration of the franchise by the Trustees. United Power shall file with the Town Clerk its written ratification thereof within ten (10) days after the approval of this franchise by the Trustees. The acceptance and ratification shall in form and

content be approved by the Town Attorney. If United Power shall fail to timely file its written acceptance or ratification as herein provided, this franchise shall be and become null and void.

(Ord. 119, 1989, §I, Ord. 2009-03, §§1, 2)

ARTICLE III   Gas FranchiseSec. 5-3-10. Definitions.

Sec. 5-3-20. Grant of franchise.

Sec. 5-3-30. Term of franchise.

Sec. 5-3-40. Non-exclusivity of franchise.

Sec. 5-3-50. Franchise fee.

Sec. 5-3-60. Franchise fee payment in lieu of certain other fees.

Sec. 5-3-70. Change of franchise fee.

Sec. 5-3-80. Conduct of business.

Sec. 5-3-90. Tariffs on file.

Sec. 5-3-100. Compliance with PUC regulations.

Sec. 5-3-110. Compliance with Company tariffs.

Sec. 5-3-120. Applicability of Company tariffs.

Sec. 5-3-130. Service standards.

Sec. 5-3-140. Location of facilities.

Sec. 5-3-150. Excavation and construction.

Sec. 5-3-160. Relocation of Company facilities.

Sec. 5-3-170. Service to new areas.

Sec. 5-3-180. Restoration of service.

Sec. 5-3-190. Supply and quality of service.

Sec. 5-3-200. Safety regulations by the Town.

Sec. 5-3-210. Inspection, audit and quality control.

Sec. 5-3-220. Assignment.

Sec. 5-3-230. Saving clause; severability.

Sec. 5-3-240. Force majeure.

Sec. 5-3-250. Indemnity and insurance.

Sec. 5-3-260. Town's right to condemn.

Sec. 5-3-270. Right to removal of facilities.

Sec. 5-3-280. Forfeiture.

Sec. 5-3-290. Reserved rights.

Sec. 5-3-300. Regulation.

Sec. 5-3-310. No third-party beneficiaries.

Sec. 5-3-10.   Definitions.

For the purpose of this Article, the following words and phrases shall have the meaning given in this Article. When not inconsistent with the context, words used in the present tense include the 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 Article shall be given their common and ordinary meaning.

Board or Town Board refers to and is the legislative body of the Town of Keenesburg.

Company refers to and is Atmos Energy Corporation, a Texas and Virginia corporation, and its successors and assigns.

Distribution facilities refer to and are only those facilities reasonably necessary to provide gas within the Town.

Facilities refer to and are all facilities reasonably necessary to provide gas into, within and through the Town and include plants, works, systems, lines, equipment, pipes, mains, underground links, gas compressors and meters.

Gas or natural gas refers to and is such gaseous fuels as natural, artificial, synthetic, liquefied natural, liquefied petroleum, manufactured, or any mixture thereof.

PUC refers to and is the Public Utilities Commission of the State of Colorado or other authority succeeding to the regulatory Weld of the Public Utilities Commission of the State of Colorado.

Residents means all persons, businesses, industries, governmental agencies, and any other entities whatsoever, presently located or hereinafter to be located, in whole or in part, within the territory of the Town.

Revenues refer to and are those amounts of money which the Company receives from its customers within the Town for the sale of gas under rates, temporary or permanent, authorized by the PUC and represents amounts billed under such rates as adjusted for refunds, the net write-off of uncollectible accounts, corrections or other regulatory adjustments.

Streets and other public places refer to and are streets, alleys, viaducts, bridges, roads, lanes, easements, public ways and other public places in said Town.

Town refers to and is the Town of Keenesburg, Weld County, Colorado, and includes the territory as currently is or may in the future be included within the boundaries of the Town of Keenesburg.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-20.   Grant of franchise.

The Town hereby grants to the Company, for the period specified and subject to the conditions, terms and provisions contained in this Article, the non-exclusive right to use the streets and other public places within the Town to furnish, transport, sell and distribute gas to the Town and to all persons, businesses and industries within the Town, the non-exclusive right to acquire, construct, install, locate, maintain, operate and extend into, within and through the Town all facilities reasonably necessary to provide gas to the Town and to all persons, businesses and industries within the Town and in the territory adjacent thereto; and the non-exclusive right to make reasonable use of all streets and other public places as may be necessary to carry out the terms of the Article.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-30.   Term of franchise.

The term of this franchise shall be in full force and effect from and after its passage, approval and publication as required by law and upon acceptance thereof in writing by the Company within thirty (30) days of final passage and the terms, conditions and covenants hereof shall remain in full force and effect for a period of fifteen (15) years, beginning September 8, 2015, and expiring September 8, 2030.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-40.   Non-exclusivity of franchise.

This franchise and the right to use and occupy said streets and other public places shall not be exclusive, and the Town reserves the right to grant the use of said streets and other public places to any person during the period of this franchise.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-50.   Franchise fee.

In consideration for the grant of this franchise, the Company shall collect and remit to the Town a sum equal to five percent (5%) of the revenues derived annually from the sale of gas within the Town, excluding the amount received from the Town itself for gas service furnished it. Franchise fee payments shall be made in quarterly installments not more than thirty (30) days following the close of the month for which payment is to be made. Quarters shall end on March 31, June 30, September 30, and December 31. Payments at the beginning and end of the franchise shall be prorated.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-60.   Franchise fee payment in lieu of certain other fees.

Payment of the franchise fee by the Company is accepted by the Town in lieu of any occupancy tax, license tax, permit charge, inspection fee or similar tax, assessment or excise upon the pipes, mains, meter, or other personal property of the Company or on the privilege of doing business in connection with the physical operation thereof, but does not exempt the Company from any lawful taxation upon its real property or other tax not related to the franchise or the physical operation thereof. Payment of the franchise fee does not exempt the Company from sales taxes, license fees, use taxes, head taxes, building permit fees, land use fees, development impact fees, ad valorem property taxes, or other taxes, fees or charges that are required to be paid pursuant to the ordinances of general application that are not pursuant to the rights and privileges herein granted or for the privilege of doing business within the Town and for the use of the streets and other public places. The Company shall be responsible for obtaining all applicable Town approvals and permits for the installation of pipelines, conduits, transmission lines and cables, and for excavation, although the permit fee for such excavation or installation of pipelines, conduits, transmission lines or cables shall not be required.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-70.   Change of franchise fee.

The Company shall report to the Town, within sixty (60) days of execution, the terms of any franchise or any change of franchise in any other municipality that contains a franchise fee or other significant financial benefit greater than the franchise fee or other significant financial [benefit] to the Town contained

in this franchise. The Company shall also report about such other provisions that may be beneficial to the Town. If the Board of Trustees decides that the franchise fee or other significant financial benefit should be incorporated into the franchise, such change shall be provided for by ordinance; any such change shall not be considered an amendment, renewal or enlargement of this franchise.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-80.   Conduct of business.

The Company may establish, from time to time, such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Company to exercise its rights and perform its obligations under this franchise; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the laws of the State of Colorado or the Town.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-90.   Tariffs on file.

The Company shall keep on file in its nearest office copies of all its tariffs currently in effect and on file with the PUC. Said tariffs shall be available for inspection by the public.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-100.   Compliance with PUC regulations.

The Company shall comply with all rules and regulations adopted by the PUC.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-110.   Compliance with Company tariffs.

The Company shall furnish gas within the Town to the Town and to all persons, businesses and industries within the Town at the rates and under the terms and conditions set forth in its tariffs on file with the PUC.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-120.   Applicability of Company tariffs.

The Town and the Company recognize that the lawful provisions of the Company's tariffs on file and in effect with the PUC are controlling over any inconsistent provision in this franchise dealing with the same subject matter.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-130.   Service standards.

(a) The Company shall maintain and operate its facilities and render efficient service in accordance with the rules and regulations of the PUC, applicable terms and conditions of Town Code, and this franchise.

(b) Maps. When required for a public health or safety purpose, the Company shall identify for the Town the location of its distribution facilities within the streets and other public places. Any maps provided by the Company to the Town shall be deemed confidential and will be provided solely for the Town's use. The Town agrees to maintain the confidentiality of any non-public information obtained from the Company to the extent allowed by law.

(c) Plans. Before commencement of installation of pipes within the streets and other public places, the Company shall prepare and submit to the Town a map showing the location, size and depth of lines, locations of shutoff valves and gates, and all appurtenances incident to the distribution facilities. In addition, the Company shall submit a construction plan including a construction schedule, showing the streets and alleys where excavations will be simultaneously open at any given time, making provision for traffic routing in the event of interruption, setting forth the places where pavement cuts are expected, and where underground boring will occur for pipe installation. Construction may then proceed upon approval of said map and plan and the issuance of a street cut permit by the Town. Nothing herein shall be construed to limit application of the Town's ordinances pertaining to installation of pipelines, conduits, transmission lines and cables as well as ordinances pertaining to excavation to the activities of the Company, except as provided herein.

(d) Use of Trenches. If the Company opens a trench to install its facilities, the Company shall provide reasonable advance notice to the Town so as to permit the Town to install Town facilities in the same trench at the Town's expense. The Town shall share in the cost of the trenching if used by the Town, on a pro rata basis. The Town's installation of its facilities shall not interfere with the Company's facilities or delay the commencement or completion of the Company's construction project within the streets and other public places.

(e) Access to Premises. To the extent allowed by law, Company shall have the right to enter the premises of consumers at reasonable times for the purpose of reading meters, inspecting gas appliances, pipes and equipment and for the purpose of ascertaining loads, making necessary tests and installing, disconnecting or removing meters.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-140.   Location of facilities.

The Company shall locate its facilities within the Town in a manner to meet with the approval of the Town. Company facilities shall not unreasonably interfere with the Town's water mains, sewer mains or other municipal use of streets and other public places. Company facilities shall be located so as to cause minimum interference with public use of streets and other public places and shall be maintained in good repair and condition.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-150.   Excavation and construction.

All construction, excavation, maintenance and repair work done by the Company shall be done in accordance with all applicable ordinances, resolutions, rules, regulations and standards of the Town and further in a timely and expeditious manner that minimizes the inconvenience to the public and individuals. All such construction, excavation, maintenance and repair work done by the Company shall comply with all applicable State, Federal and local codes and is subject to inspection and approval by the Town to

ensure that said work has been performed in accordance with applicable Town ordinances, resolution, rules, regulations and standards. Such inspections and approvals may include, but are not limited to, proposed locations for facilities in the streets and other public places, disturbance of pavements, sidewalks and surfaces of the streets and other public places or adjoining landscaping. All public and private property whose use conforms to restrictions in easements disturbed by Company construction or excavation activities shall be restored as soon as practicable by the Company at its expense to substantially its former condition. The Company shall comply with the Town's requests for reasonable and prompt action to remedy all damage to private property adjacent to streets or dedicated easements where the Company is performing construction, excavation, maintenance or repair work. The Town reserves the right to restore property and remedy damages caused by Company activities at the expense of the Company in the event the Company fails to perform such work within a reasonable time after notice from the Town.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-160.   Relocation of Company facilities.

If at any time the Town requests the Company to relocate any distribution gas main or service connection installed or maintained in streets and other public places in order to permit the Town to change street grades, pavements, sewers, water mains or other Town works, such relocation shall be made by the Company at its expense. Following relocation, the Company, at its expense, shall restore all property to substantially its former condition.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-170.   Service to new areas.

If during the term of this franchise the boundaries of the Town are expanded, the Town will promptly notify Atmos in writing of any geographic areas annexed by the Town during the term hereof ("Annexation Notice"). Any such Annexation Notice shall be sent to Atmos by certified mail, return receipt requested, and shall contain the effective date of the annexation, maps showing the annexed area and such other information as Atmos may reasonably require in order to ascertain whether there exist any customers of Atmos receiving natural gas service in said annexed area. To the extent there are such Atmos customers therein, then the gross revenues of Atmos derived from the sale and distribution of natural gas to such customers shall become subject to the franchise fee provisions hereof effective on the first day of Atmos' billing cycle immediately following Atmos' receipt of the Annexation Notice. The failure by the Town to advise Atmos in writing through proper Annexation Notice of any geographic areas which are annexed by the Town shall relieve Atmos from any obligation to remit any franchise fees to Town based upon gross revenues derived by Atmos from the sale and distribution of natural gas to customers within the annexed area until Town delivers an Annexation Notice to Atmos in accordance with the terms hereof.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-180.   Restoration of service.

In the event the Company's gas system, or any part thereof, is partially or wholly destroyed or incapacitated, the Company shall use due diligence to restore its system to satisfactory service within the shortest practicable time.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-190.   Supply and quality of service.

The Company shall make available an adequate supply of gas to provide service in the Town. The Company's facilities shall be of sufficient quality, durability and redundancy to provide adequate and efficient gas service to the Town. If, during the term of this franchise, there occurs a failure or partial failure of the supply of gas available to the Company because of depletion of such supply, the Company shall take all reasonable steps to obtain an additional gas supply from other sources to be delivered to the Company. Notwithstanding Section 5-3-240, if the Company fails to secure an additional gas supply for service to its customers, the franchise rights granted herein shall be subject to forfeiture under Section 5-3-280.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-200.   Safety regulations by the Town.

The Town reserves the right to adopt, from time to time, reasonable regulations in the exercise of its police power which are necessary to ensure the health, safety and welfare of the public, provided that such regulations are not destructive of the rights granted herein. The Company agrees to comply with all such regulations, in the construction, maintenance and operation of its facilities and in the provision of gas within the Town.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-210.   Inspection, audit and quality control.

The Town shall have the right to inspect, at all reasonable times, any portion of the Company's system used to serve the Town and its residents. The Town also shall have the right to inspect and conduct an audit of Company records relevant to compliance with any terms of this Article at all reasonable times. The Company agrees to cooperate with the Town in conducting the inspection and/or audit and to correct any discrepancies affecting the Town's interest in a prompt and efficient manner.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-220.   Assignment.

The Company may, without consent by the Town, transfer or assign this franchise and the rights granted hereunder to a parent, subsidiary or affiliate of the Company, provided that such parent, subsidiary or affiliate provides, within ten (10) business days of transfer or assignment, written acceptance to the Town of such transfer or assignment and agrees to assume all obligations of the Company hereunder and to be bound to the same extent as was the Company. For any transfer or assignment of this franchise or any rights granted hereunder to a party that is not a parent, subsidiary or affiliate of the Company, the Town's prior written consent shall be required, which consent shall not be withheld or delayed provided the assignee demonstrates it has the legal, technical and financial qualifications to assume the franchise obligations. The proposed assignee shall be presumed financially qualified unless its long term unsecured debt rating is less than investment grade as rated by both S&P and Moody's, and the proposed assignee shall be presumed to be legally and technically qualified to assume the franchise obligations if such transfer of ownership or control is approved by the Colorado Public Utilities Commission, or such other agency as shall then have jurisdiction over such transfer or ownership or control.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-230.   Saving clause; severability.

If a court of competent jurisdiction declares any portion of this franchise to be illegal or void, the remainder of the Article shall survive and not be affected thereby. The Town Board of Trustees declares it would have passed this article and each part or parts hereof irrespective of the fact that any one (1) part or parts be declared unconstitutional or invalid.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-240.   Force majeure.

Notwithstanding anything expressly or impliedly to the contrary contained herein, in the event Company is prevented, wholly or partially, from complying with any obligation or undertaking contained herein by reason of any event of force majeure, then, while so prevented, compliance with such obligations or undertakings shall be suspended, and the time during which Company is so prevented shall not be counted against Company for any reason. The term "force majeure," as used herein, shall mean any cause not reasonably within Company control and includes, but is not limited to, acts of God, strikes, lockouts, wars, terrorism, riots, orders, or decrees of any lawfully constituted Federal, State or local body; contagions or contaminations hazardous to human life or health; fires, storms, floods, wash-outs, explosions, breakages or accidents to machinery or lines of pipe; inability to obtain or the delay in obtaining rights-of-way, materials, supplies, or labor permits; temporary failures of gas supply; or necessary repair, maintenance or replacement of facilities used in the performance of the obligations contained in this Article.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-250.   Indemnity and insurance.

(a) The Company shall indemnify, defend and hold harmless the Town from and against all liability or damage and all claims, demands or liens arising out of the Company's operations within the Town or related to or arising out of the exercise by the Company of any rights and privileges hereby granted. The Company shall maintain insurance in an amount not less than one million dollars ($1,000,000.00), and shall furnish a certificate of insurance to the Town so showing.

(b) As an alternative to providing a certificate of insurance to the Town certifying liability insurance coverage as required by subsection (a), the Company may provide the Town with an annual statement regarding its self-insurance. The Company's self-insurance shall provide at least the same amount and scope of coverage for the Company and the Town, its officers, agents and employees, as otherwise required by subsection (a). Upon the Company's election to self-insure under this subsection (b), any failure of the Company to maintain adequate self-insurance shall be a material breach and the franchise shall be subject to forfeiture as set forth in Section 5-3-280.

(c) The Town shall provide prompt written notice to the Company of the pendency of any action against the Town arising out of such exercise by the Company of said rights and privileges and be permitted at its own expense to appear and defend, or assist in the defense of the same. The obligations of this Section shall not extend to any liability or damage and all reasonable expenses accruing against the Company arising out of the negligence, recklessness, or willful and wanton misconduct of the Town, its officers, employees, agents, representatives, or contractors.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-260.   Town's right to condemn.

Nothing herein shall be construed to restrict any rights of the Town to condemn or acquire the facilities of the Company or to otherwise restrict the Company's opportunity to conduct business in the Town as provided by C.R.S. § 31-15-707, or other applicable State or Federal law.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-270.   Right to removal of facilities.

Upon the termination of this franchise, if the Company has not acquired an extension or renewal thereof and accepted same, the Company may remove its facilities from the streets and other public places of the Town, provided that the Town has had ample time and opportunity to purchase, condemn or replace said facilities. In so removing its facilities, the Company shall, at its own expense and within a reasonable time not to exceed one hundred eighty (180) days, restore all property affected by removal operations to their pre-existing condition, to the satisfaction of the Town.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-280.   Forfeiture.

If the Company fails to perform any of the terms and conditions of this franchise, the Town may notify the Company of the specific failure and shall allow the Company a reasonable time within which to remedy the failure, not to exceed one hundred twenty (120) days, or such additional time as may be agreed to by the parties. The Town reserves the right to declare a forfeiture of this franchise for the breach of a substantial and material provision thereof. No forfeiture shall be declared until the Company shall have had an opportunity to be heard and to correct or justify the alleged breach. Upon failure of the Company to exercise reasonable diligence to correct such condition, the Town may declare this franchise forfeited and notify the Company in writing. In the event that this franchise is forfeited, then the Company agrees to continue to render service as theretofore provided until the Town makes alternative arrangements for such services. Neither the Town nor the Company shall be in breach or forfeiture of this franchise if failure to perform is due to uncontrollable forces, which shall include, but not be limited to, accidents, acts of God, floods, storms, fires, sabotage, terrorist attack, labor disputes, riots, war, forces of nature and other causes or contingencies of whatever nature beyond the reasonable control of the parties affected, which could not reasonably have been anticipated and avoided.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-290.   Reserved rights.

The right is hereby reserved by the Town to adopt, from time to time, in addition to the provisions herein contained, such ordinances as may be deemed necessary in the exercise of its police power to protect the health, safety and welfare of the public, including, but not limited to, ordinances to control and regulate the use of the streets and other public places and the space above and beneath the streets and other public places. Neither the Town nor the Company waives any rights under this franchise or the statutes and constitution of the State of Colorado or of the United States, except as otherwise specifically set forth herein.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-300.   Regulation.

This Article and the respective rights and obligations of the parties hereunder are subject to all present and future valid governmental legislation or regulation, whether Federal or State, of duly constituted authorities which have jurisdiction over this Article, one (1) or both of the parties, or any transaction hereunder.

(Ord. 2015-03, 2015, §1)

Sec. 5-3-310.   No third-party beneficiaries.

Nothing contained in this franchise shall be construed to provide rights to third parties.

(Ord. 2015-03, 2015, §1)

ARTICLE IV   Emergency Telephone ServiceSec. 5-4-10. Charge imposed.

Sec. 5-4-20. Collection authorized.

Sec. 5-4-10.   Charge imposed.

There is hereby imposed, pursuant to Section 29-11-101 et seq., C.R.S., upon all telephone exchange access facilities within the Town an emergency telephone charge in an amount not to exceed two percent (2%) of the tariff rates as approved by the Public Utilities Commission or fifty cents ($.50), whichever is less. Upon recommendation of the Weld Emergency Telephone Service Authority, the Board of Trustees may, by resolution, raise or lower the emergency telephone charge, but in no event shall such charge exceed the amount of two percent (2%) of the tariff as approved by the Public Utilities Commission.

(Ord. B115, 1987, §2; Ord. 1-98, 1998, §1)

Sec. 5-4-20.   Collection authorized.

Telephone service suppliers providing telephone service in the Town are hereby authorized to collect the emergency telephone charge imposed by this Article in accordance with Section 29-11-101 et seq., C.R.S., and to provide those funds to the Weld Emergency Telephone Service Authority as provided in the intergovernmental agreement.

(Ord. B115, 1987, §3)