APPENDIX I - Franchises

ORDINANCE NO. 437, PASSED OCTOBER 11, 1993, GRANTING A FRANCHISE TO PUBLIC SERVICE COMPANY OF COLORADO


ARTICLE I - Definitions

§1.0    For the purpose of this franchise, 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.
§1.1    "Board" or "Board of Trustees" refers to and is the legislative body of the Town of Eaton.
§1.2    "Company" refers to and is Public Service Company 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.
§1.3    "Distribution Facilities" refers to and is only that portion of the Company's electric system which delivers electric energy from the substation breakers to the point-of-delivery of the customer, including all devices connected to that system.
§1.4    "Facilities" refer to and are all facilities reasonably necessary to provide electricity into, within and through the Town of Eaton and include plants, works, systems, substations, transmission and distribution structures, lines, equipment, conduit, transformers, underground lines, meters, wires, cables and poles.
§1.5    "Franchise" refers to the rights granted by this ordinance.
§1.6    "Public Easements" refer to and are public and dedicated easements created and available for use by investor-owned, or other public utilities for their facilities.
§1.7    "Public Utilities Commission" or "PUC" refers to and is the Public Utilities Commission of the State of Colorado or other authority succeeding to the regulatory powers of the Public Utilities Commission.
§1.8    "Residents" refers to and includes 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 Eaton.
§1.9    "Revenues" refer to and are those certain amounts of money which the Company receives from the use by other entities of its facilities located within the Town of Eaton pursuant to the provisions of Section 3.1 herein, plus revenue derived from its customers within the Town of Eaton from the sale of electricity under rates authorized by the Public Utilities Commission and represents amounts billed under such rates as adjusted for refunds, the net write-off of uncollectible accounts, corrections or other regulatory adjustments.
§1.10    "Streets and Other Public Places" refer to and are streets, alleys, viaducts, bridges, roads, lanes and other public places in said Town of Eaton.
§1.11    "Town" refers to and is the municipal corporation designated as the Town of Eaton, Colorado and includes the territory as currently is or may in the future be included within the boundaries of the Town of Eaton.


ARTICLE 2 - Grant of Franchise

§2.1    Grant of Franchise.  The Town of Eaton hereby grants to Public Service Company, for the period specified in and subject to the conditions, terms and provisions contained in this franchise, a nonexclusive right to furnish, sell and distribute electricity to the Town and to all residents of the Town.  Subject to the conditions, terms and provisions contained in this franchise, the Town also hereby grants to the Company 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 and through the Town and a nonexclusive right to make reasonable use of the streets and other public places and public easements as may be necessary to carry out the terms of this franchise.  These rights shall extend to all areas of the Town as it is now constituted and to additional areas as the Town may increase in size by annexation or otherwise.
§2.2    Street Lighting Service.  The rights granted in this franchise encompass the nonexclusive franchise to provide street lighting service to the Town and the provisions of this franchise apply with full and equal force to the street lighting service provided by the Company.  Wherever reference is made to the sale of electricity or to the provision of electric service in this franchise, these references shall be deemed to include the provision of street lighting service.  Wherever reference is made to Company facilities, equipment, system or plant in this franchise, this reference shall be deemed to include Company-owned street lighting facilities, equipment, system and plant.
§2.3    Term of Franchise.  This franchise shall take effect on November 20, 1993.  The term of this franchise shall be for twenty-five (25) years, beginning with said effective date of this franchise and expiring on November 20, 2018.


ARTICLE 3 - Franchise Fee

§3.1    Franchise Fee.  In consideration for the grant of this franchise, the Company shall pay the Town a sum equal to three percent (3%) of all revenues received from the sale of electricity within the Town, except revenue paid by the Town to the Company.  In addition, the Company shall pay the Town a sum equal to three percent (3%) of the revenues received by the Company from other entities for the use of the Company's facilities within the Town, provided that said three percent (3%) of such revenues is greater than the amount of fifty dollars ($50.00) per calendar year.
§3.2    Payment Schedule.  For the franchise fee owed on revenues received after the effective date of this franchise, payment shall be made in monthly installments not more than thirty (30) days following the close of the month for which payment is to be made.  For the franchise fee owed on revenues received from the use by others of the Company's facilities, payment, if required pursuant to Section 3.1, shall be made within ninety (90) days following the close of the calendar year for which they are due.  Initial and final payments shall be prorated for the portions of the months at the beginning and end of the term of this ordinance.  All payments shall be made to the Town Clerk.  The Town Clerk, or other representative authorized by the Board, shall have access to the books of the Company for the purpose of auditing or checking to ascertain that the franchise fee has been correctly computed and paid.
In the event an error by the Company results in an overpayment of the franchise fee to the Town and said overpayment is in excess of two thousand dollars ($2,000.00), credit for the overpayment shall be spread over the same period the error was undiscovered.  If the overpayment is two thousand dollars ($2,000.00) or less, credit shall be taken against the next payment.  In the event an error by the Company results in an underpayment of the franchise fee to the Town, the Company shall pay to the Town the difference in amount between the underpayment and the correct payment within thirty (30) days after the discovery of the underpayment.
§3.3    Change of Franchise Fee and Other Franchise Terms.  Once during each calendar year of the franchise term the Board of Trustees, upon giving thirty (30) days' notice to the Company of its intention so to do, may review and change the consideration the Town may be entitled to receive as a part of the franchise; provided, however, that the Board of Trustees may only change the consideration to be received by the Town under the terms of this franchise to the equivalent of the consideration paid by the Company to any city or town in the State of Colorado in which the Company supplies electric service under franchise.
The Company shall, upon request, report to the Town within sixty (60) days of the execution of a subsequent franchise or of any change of franchise in other municipalities that could have a significant financial impact on the consideration to be paid by the Company to the Town hereunder.  If the Board of Trustees decides the consideration shall be so changed, it shall provide for such change by ordinance; provided, however, that any change in the franchise fee is then allowed to be surcharged by the company; and provided, further, that the consideration is not higher than the highest consideration paid by the Company to any municipality within the State of Colorado.  For purposes of this section, consideration means the franchise fee established in Article 3, Section 1; the undergrounding program established in Article 10, Section 2; and also includes any other provision which is of similar significant financial benefit to the Town.
§3.4    Franchise Fee Payment in Lieu of 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 on the privilege of doing business or in connection with the physical operation thereof, but does not exempt the Company from any lawful taxation upon its property or any other tax not related to the franchise or the physical operation thereof and does not exempt the Company from payment of head taxes or other fees or taxes assessed generally upon businesses.
§3.5    Contract Obligation.  This franchise agreement constitutes a valid and binding contract between the Company and the Town.  In the event that the franchise fee specified in this franchise is declared illegal, unconstitutional or void for any reason by any court or other proper authority, the Company shall be contractually bound to pay an occupation tax to the Town in an amount nearly equivalent to the amount which would have been paid as a franchise fee at the same times and in the same manner as provided for in the franchise fee.


ARTICLE 4 - Supply, Construction and Design

§4.1    Supply of Electricity.  The Company shall take all reasonable and necessary steps to provide an adequate supply of electricity to its customers at the lowest reasonable cost consistent with long-term reliable supplies.  If the supply of electricity to its customers should be interrupted, the Company shall take all necessary and reasonable actions to restore such supply within the shortest practicable time.  Should electric power or energy be made available to the Company, from whatever source, including any agency or instrumentality of the United States of America, at less total cost than the total cost which would be incurred by the Company to supply such power from its own system and under circumstances which would not adversely affect the Company or its operations, the Company will attempt to purchase such lower cost power or energy and pass on to its customers any savings resulting from the purchase.
§4.2    Restoration of Service.  In the event the Company's electric system, or any part thereof, is partially or wholly destroyed or incapacitated, the Company shall use due diligence to restore its system to satisfactory service within the shortest practicable time.
§4.3    Obligations Regarding Company Facilities.  The Company shall install, maintain, repair, renovate and replace its facilities with due diligence in a good and workmanlike manner and the Company's facilities will be of sufficient quality and durability to provide adequate and efficient electric service to the Town and its residents.  Company facilities shall not interfere with the Town's water mains, sewer mains or other municipal use of streets and other public places.  The Company shall erect and maintain its facilities in such a way so as to minimize interference with trees and other natural features.  Company facilities shall be installed in public easements so as to cause a minimal amount of interference with such property.
§4.4    Excavation and Construction.  All excavation, construction, maintenance and repair work done by the Company shall be done in a timely and expeditious manner which minimizes the inconvenience to the public and individuals.  All public and private property whose use conforms to restrictions in public easements disturbed by Company excavation or construction activities shall be restored by the Company at its expense to substantially its former condition, subject to inspection by the Town.  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 public easements where the Company is performing excavation or construction work.
§4.5    Relocation of Company Facilities.  If at any time the Town requests the Company to relocate any facility installed or maintained in streets, or other public places or public easements pursuant to this franchise or previous franchises, in order to permit the Town to make any public use of rights-of-way, easements or streets, to construct any Town improvement, or to build any Town project, or for any municipal purpose in which the Town has a financial or ownership interest, such relocation shall be made by the Company at its expense.  Relocation shall be completed within a reasonable time from the date when the Town makes its request, such time to be established by the Company as soon as possible after the Town's request.  The Company shall be granted an extension of time of completion equivalent to any delay caused by conditions not under its control, provided that the Company proceeds with due diligence at all times.  Following relocation, all property shall be restored to substantially its former condition by the Company at its expense.
Relocated underground facilities shall be underground.  Relocated aboveground facilities shall be aboveground unless the Town either agrees to pay the additional cost of moving them underground or requests that such additional cost be paid out of available funds under Section 10.2.
§4.6    Service to New Areas.  If the boundaries of the Town are expanded during the term of this franchise, the Company shall extend service to residents in the expanded area at the earliest practicable time and in accordance with the Company's extension policy.  Service to the expanded area shall be in accordance with the terms of this franchise agreement, including payment of franchise fees.
§4.7    Town Not Required to Advance Funds.  Upon receipt of the Town's authorization for billing and construction, the Company shall extend its facilities to provide electric service to the Town for municipal uses within the Town limits or for any major municipal facility outside the Town limits, and within the Company certificated service area, without requiring the Town to advance funds prior to construction.
§4.8    Technological Improvements.  The Company shall generally introduce and install, as soon as practicable, electrical energy technological advances in its equipment and service within the Town when such advances are technically and economically feasible and are safe and beneficial to the Town and its residents.  Upon request by the Town, the Company shall review and promptly report advances which have occurred in the electric utility industry that have been incorporated into the Company's operations in the Town in the previous year or will be so incorporated in the six (6) months following the Town's request.  The Company shall report in advance to the Town any plans to include technological advances relating to communications systems such as communication signals, which facilities may be installed by the Company for its use, the use of the Town, or for use of others as the Company may license.  The Town may use said facilities for its own use without cost, except such additional expense which may be incurred by the Company as a result of the Town's use.  The Town shall not use said facilities for commercial purposes unless it reaches prior agreement with the Company regarding consideration for the use of said facilities.  In no event shall the Town's use impair the Company's ability to use its own facilities.  Upon request of the Town, the Company will provide a detailed report for the use of such communications systems subject to protecting confidential information.  Nothing contained herein shall be construed to authorize the Company to engage in communications activities for sale or lease, nor shall this ordinance be construed as a franchise for said telecommunications activities within the Town.


ARTICLE 5 - Compliance

§5.1    Town Regulation.  The Town expressly reserves, and the Company expressly recognizes, the Town's right and duty to adopt, from time to time, in addition to the provisions herein contained, such ordinances and rules and regulations as may by the Town be deemed necessary in the exercise of its police power for the protection of the health, safety and welfare of its citizens and their properties.
§5.2    Compliance With Town Requirements.  The Company will comply with all Town requirements regarding street lighting, curb and pavement cuts, excavating, digging, patching, restoration and related construction activities, and shall obtain all required permits therefor.  If requested by the Town, the Company shall submit copies of reports of annual and long-term planning for capital improvement projects with descriptions of required street cuts, excavation, digging and related construction activities within thirty (30) days after issuance.  Except for emergencies, the Town may require that all installations be coordinated with the Town's street improvement programs.  The Town Administrator shall be the Town's agent for inspection and for compliance with Town ordinances and regulations on any such projects.
§5.3    Town Review of Construction and Design.  Prior to construction of any significant facilities above ground for electrical energy, any transmission lines or generating plant, building, substation or similar structure within the Town, if requested by the Town, the Company shall furnish to the Town the plans for such facilities.  In addition, the Company shall assess and report on the impact of such proposed construction on the Town environment.  Such plans and reports may be reviewed by the Town to ascertain, inter alia, (1) that all applicable laws including building and zoning codes and air and water pollution regulations are complied with, (2) that aesthetic and good planning principles have been given due consideration, and (3) that adverse impact on the environment has been minimized.  The Company shall incorporate all reasonable changes requested by the Town.
§5.4    Compliance with PUC Regulations.  The electrical energy which the company distributes shall conform with the standards promulgated by the Public Utilities Commission in the Rules Regulating the Service of Electric Utilities and with the tariff provisions of the Company setting standards, as the same may be amended from time to time.
§5.5    Compliance With Air and Water Pollution Laws.  The Company shall use its best efforts to take measures which will result in its facilities meeting the standards required by applicable Federal and State air and water pollution laws.  Upon the Town's request, the Company will provide the Town with a status report of such measures.
§5.6    Inspection.  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 shall also have access to Company records for the purpose of determining Company compliance with this franchise.  The Company agrees to cooperate with the Town in conducting the inspection and to correct any discrepancies affecting the Town's interest in a prompt and efficient manner.


ARTICLE 6 - Public Utilities Commission

§6.1    Public Utilities Commission Regulation.  The Town and the Company recognize that the lawful provisions of the Company's tariffs on file and in effect with the Public Utilities Commission which are consistent with the restrictions and limitations of Article XXV of the Colorado Constitution regarding the rights of municipalities to franchise are controlling over any inconsistent provision in this franchise dealing with the same subject matter.  In the opinion of the Company, no provision of this franchise is inconsistent with any of the currently effective provisions of the Company's tariffs.


ARTICLE 7 - Reports to Town

§7.1    Reports on Company operations.  The Company shall submit reasonable and necessary reports containing or based on information readily obtainable from the Company's books and records as the Town may request with respect to the operations of the Company under this franchise and provide the Town with a list of real property within the Town which is owned by the Company.
§7.2    Copies of Tariffs, All PUC Filings.  The Company shall keep on file in its nearest Company office all tariffs, rules, regulations and policies approved by the PUC relating to service by the Company to the Town and its residents.  Upon request by the Town, the Company shall provide the Town with copies of filings affecting said service which it makes with the Colorado PUC.
§7.3    Bills.  On request by the Town, the Company shall provide a complete list of Town accounts and items metered and shall specify the type of account for which charges are made, i.e., street lighting, traffic signal, general office, spot lighting, etc.


ARTICLE 8 - Town Use of Company Facilities

§8.1    Town Use.  The Town shall have the right for the purpose of stringing wires to use all poles and suitable overhead structures, constructed by the Company within the Town, for the purpose of stringing wires, which use shall not include the distribution or transmission of electricity.  Such use by the Town will be without cost.  The Company will allow others holding a franchise, except for electric service, from the Town to so utilize such poles and suitable overhead structures upon reasonable terms and conditions to be agreed upon by the Company and such holder of a franchise from the Town; provided, however, that the Company shall assume no liability nor shall it be put to any additional expense in connection therewith and the use of said poles and structures by the Town or others holding a franchise from the Town shall be in such a manner as not to constitute a safety hazard or to interfere unnecessarily with the Company's use of same.
§8.2    Underground Conduit.  If the Company installs new electric underground conduit or opens a trench or replaces such conduit, the Company shall provide reasonable advance notice 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 the Company and in a timely manner provide similar conduit and pull-wire at its expense to the Company which will install it without further expense to the Town; provided that such action by the Town will not unnecessarily interfere with the Company's facilities or delay the accomplishment of the project.
§8.3    Use of Company Facilities.  The Company will offer to grant to the Town use of transmission right-of-way which it now, or in the future, owns or has an interest in within the Town for the purposes set forth in and pursuant to the provisions of the Park and Open Space Act of 1984, provided that the Company shall not be required to make such an offer in any circumstance where such offer would interfere with the Company's use of the transmission right-of-way.  If the Company's offer is accepted by the Town, then any improvements deemed appropriate by the Town and consistent with the purpose of the Park and Open Space Act of 1984 shall be made by the Town at its expense.
§8.4    Annexation to the Town.  When any property owned by the Company becomes eligible for voluntary annexation to the Town and is not simultaneously eligible for voluntary annexation to another municipal corporation, the Company will take whatever action is necessary to annex that property, upon request by the Town.  No condition of such annexation shall impair the company's ownership of its property or its use of its land and associated water rights for utility purposes.  Except as herein provided, the Company shall comply with all terms and conditions imposed upon the annexation by the Town which are no more stringent than those generally imposed upon property owners seeking annexation of their land to the Town.
§8.5    Right of First Purchase.  In the event the Company at any time during the term of this franchise 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.  The Company shall obtain a qualified appraisal on any such property and the Town shall have sixty (60) days in which to exercise the right of first purchase by giving written notice to the Company.  Should the Town not provide the required written notice, the Company may proceed to negotiate with others for the sale of such property, provided that the Company may not sell such property for an amount less than 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 event the Town must notify the Company in writing within thirty (30) days if it wishes to purchase such property.  It is understood that nothing in this paragraph shall preclude the Company from transferring real property to a subsidiary or affiliate without first according the Town the rights referred to above; provided that if the transferee proposes to sell or dispose of such property within one (1) year, it shall not do so without first affording the Town the rights referred to above.


ARTICLE 9 - Indemnification of the Town

§9.1    Town Held Harmless.  The Company shall construct, maintain and operate its plant, equipment, poles, wires, structures and other facilities in a manner which provides reasonable protection against injury or damage to persons or property; provided, however, that said obligation of the Company hereunder shall not increase or decrease its liability on third party claims; and provided further that the Company's obligation to the Town hereunder shall not be diminished by said exception.  The Company shall save the Town harmless and indemnify the Town from and against all liability or damage and all claims or demands whatsoever in nature, and reimburse the Town for all reasonable expenses arising out of the operations of the Company within the Town pursuant to this franchise and the securing of and the exercise by the Company of the franchise rights granted in this franchise agreement, including any third party claims, administrative hearings and litigation.  None of the Town's expenses reimbursed by the Company under this Section shall be surcharged.  In the event the Town institutes litigation against the Company for a breach of this franchise agreement or for an interpretation of the franchise agreement and the Town is the prevailing party, the Company shall reimburse the Town for all costs related thereto, including reasonable attorneys' fees.  Notwithstanding any provision hereof to the contrary, the Company shall not be obligated to hold harmless or indemnify the Town for claims or demands to the extent arising out of or in connection with any negligent act or failure to act of the Town or any of its officers or employees.
Within sixty (60) days after receipt of the same by the Town Attorney, the Town will provide notice to the Company of the pendency of any claim or action against the Town arising out of the exercise by the Company of its franchise rights.  The Company will be permitted, at its own expense, to appear and defend or to assist in defense of such claim.
§9.2    Payment of Expenses Incurred by Town in Relation to Ordinance.  At the Town's option, the Company shall pay in advance or reimburse the Town for expenses incurred in publication of notices and ordinances and for photocopying of documents arising out of the negotiations or process for obtaining the franchise.  All Town expenses paid in advance or reimbursed by the Company arising out of the negotiations or process for obtaining the franchise shall not be surcharged against Eaton ratepayers.


ARTICLE 10 - Underground Construction and Overhead Conversion

§10.1    Underground Electrical Distribution Lines in New Areas.  The Company will place newly constructed electrical distribution lines underground to serve new residential subdivision areas in accordance with the Company's tariffs, Town subdivision regulations and any other applicable Town regulations.
§10.2    Overhead Conversion at Expense of Company. §10.3    Review of Undergrounding Program.  Representatives of both the Town and the Company shall meet periodically to review the Company's undergrounding program.  This review shall include: Such meetings shall be held to achieve a continuing program for the orderly undergrounding of electrical lines in the Town.
§10.4    Cooperation With Other Utilities.  When undertaking a project of undergrounding, the Town and the Company 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 are placing their lines underground, the Company shall cooperate with these utilities and companies and undertake to underground Company facilities as part of the same project where feasible.  The Company shall not be required to pay the costs of any other utility or company in connection with work under this Section.


ARTICLE 11 - Transfer of Franchise

§11.1    Consent of Town Required.  The Company shall not transfer or assign any rights under this franchise to a third party, excepting only corporate reorganizations of the Company not including a third party, unless the Board of Trustees shall approve in writing such transfer or assignment.  Approval of the transfer or assignment shall not be unreasonably withheld.
§11.2    Transfer Fee.  In order that the Town may share in the value this franchise adds to the Company's operation, any such transfer or assignment of rights under this franchise requiring the approval of the Board of Trustees shall be subject to the conditions that the transferee shall promptly pay to the Town a pro rata share of one million dollars ($1,000,000.00), which pro rata amount of one million dollars ($1,000,000.00) shall be calculated by multiplying one million dollars ($1,000,000.00) times a fraction of which the then population of the Town is the numerator and the then population of the City and County of Denver is the denominator.  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 surcharge by the transferee or the Company.


ARTICLE 12 - Purchase or Condemnation

§12.1    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 rights of the Company in connection therewith, as provided by the Colorado Constitution and statutes, are hereby expressly reserved.
§12.2    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.  No value shall be given to the franchise or to rights-of-way.  If the Town and Company 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; provided, however, that no award shall be made for the value of the franchise or right-of-way.
§12.3    Continued Cooperation by Company.  In the event the Town exercises its option to purchase or condemn, the Company agrees that it will continue to supply any service it supplies under this franchise, in whole or in part, at the Town's request, for the duration of the term of this franchise pursuant to terms and conditions negotiated for such continued operation.  The Company's facilities shall be available for continued service until nine (9) months after final order is entered into a condemnation proceeding or the effective date of a purchase agreement between the parties; provided, however, that said obligation to maintain the facilities shall not exceed a twenty-four-month period after the termination of the franchise.  The Company shall continue to provide service pursuant to the terms of this ordinance for said twenty-four (24) months until the Town has either purchased or condemned the Company's facilities or alternative arrangements have been made to supply electric power to the Town and its residents, whichever date shall earlier occur.  The Town shall not pay for any services no longer required.  The Company shall cooperate with the Town by making available then existing pertinent Company records which are not privileged to enable the Town to evaluate the feasibility of acquisition by the Town of Company facilities.  The Company shall not be obligated to conduct studies or accrue data without reimbursement by the Town, but will make such studies if reimbursed its costs for the same.  The Company shall take no action which could inhibit the Town's ability to effectively or efficiently use the acquired systems.  At the Town's request, the Company shall supply electric power for use by the Town in the Town-owned system.


ARTICLE 13 - Removal of Company Facilities at End of Franchise

§13.1    Limitations on Company Removal.  In the event this franchise is not renewed at the expiration of its term or is forfeited, or the Company terminates any service provided herein for any reason whatsoever, and the Town has not purchased or condemned the electric system and has not provided for alternative electrical service, the Company shall have no right to remove said system or any parts thereof pending resolution of the disposition of the system.  The Company further agrees it will not withhold any temporary services necessary to protect the public and shall be entitled only to monetary compensation in no greater amount than it would have been entitled to were such services provided during the term of this franchise.  Only upon receipt of written notice from the Town stating that the Town has adequate alternative electrical energy sources to provide for the people of the Town shall the Company be entitled to remove any or all of said system in use under the terms of this franchise.  If, after such notice, the Company decides to remove any or all of said system, or in the event it becomes necessary to remove any or all of said system in the public interest, such removal shall be made by the Company at the Company's expense.  This provision shall not be construed to alter any other rights of ownership or contribution between the parties, but is for the protection and preservation of the public interest.  All public property shall be restored by the Company to its former condition after said removal.


ARTICLE 14 - Small Power Production and Cogeneration

§14.1    Company to Purchase.  The Town expressly reserves the right to engage in the production of electricity.  The Company agrees to purchase Town-generated power pursuant to separate contracts negotiated with the Town, and in accordance with the Company's tariffs and applicable PUC rules and regulations.


ARTICLE 15 - Forfeiture

§15.1    Forfeiture.  Both the Company and the Town recognize there may be circumstances whereby compliance with the provisions of this franchise is impossible or is delayed because of circumstances beyond the Company's control.  In those instances, the Company shall use its best efforts to Company in a timely manner and to the extent possible.  If the Company fails to perform any of the terms and conditions of this franchise and such failure is within the Company's control, the Town, acting by and through its Board, may determine, after hearing, that such failure is of a substantial nature.  Upon receiving notice of such determination, the Company shall have thirty (30) days in which to submit a written response to the Town describing what corrective actions are being taken by the Company to remedy such failure.  The Company shall have a reasonable time thereafter, not to exceed six (6) months, in which to remedy the violations, subject to any reasonable extensions granted by the Town due to weather or other conditions provided, that no health, safety or welfare threats are imposed by any such extensions.  If after such time, corrective actions have not been successfully taken, the Town, acting through its Board of Trustees, may declare the franchise forfeited.  This shall not limit or restrict any other rights or remedies available to the Town at law or in equity.
§15.2    Judicial Review.  Any such declaration of forfeiture shall be subject to judicial review as provided by law.
§15.3    Other Legal Remedies.  Nothing herein contained shall limit or restrict any legal rights that the Town or the Company may possess arising from any alleged violation of this franchise.
§15.4    Continued Obligations.  Upon forfeiture, the Company shall continue to provide service to the Town and its residents in accordance with the terms hereof until the Town makes alternative arrangements for such service.  If the Company fails to provide continued service, it shall be liable for damages to the Town.


ARTICLE 16 - Amendments

§16.1    Amendments to Franchise.  At any time during the term of this franchise, the Town, through its Board of Trustees, or the Company may propose amendments to this franchise by giving thirty (30) days' written notice to the other of the proposed amendments desired and both parties thereafter, through their designated representatives, will negotiate within a reasonable time in good faith in an effort to agree on mutually satisfactory amendment(s).  The word "amendment" as used in this Section does not include a change authorized in Section 3.3.


ARTICLE 17 - Miscellaneous

§17.1    Successors and Assigns.  The rights, privileges, franchises and obligations granted and contained in this ordinance shall inure to the benefit of and be binding upon Public Service Company, its successors and assigns.
§17.2    Third Parties.  Nothing contained in this franchise shall be construed to provide rights to third parties.
§17.3    Representatives.  Both parties shall designate from time to time in writing representatives for the Company and the Town who will be the persons to whom notices shall be sent regarding any action to be taken under this ordinance.  Notice shall be in writing and forwarded by certified mail or hand delivery to the persons and addresses as hereinafter stated, unless the persons and addresses are changed at the written request of either party, delivered in person or by certified mail.  Until any such change shall hereafter be made, notices shall be sent to the Town Administrator and to the Company's Home Light Division Manager.  Currently the addresses are as follows: §17.4    Severability.  Should any one or more provisions of this franchise be determined to be illegal or unenforceable, all other provisions nevertheless shall remain effective; provided, however, that the parties shall forthwith enter into good faith negotiations and proceed with due diligence to draft a term that will achieve the original intent of the parties hereunder.
§17.5    Entire Agreement.  This franchise constitutes the entire agreement of the parties.  There have been no representations made other than those contained in this franchise.
§17.6    No Waiver.  Neither the Town nor the Company shall be excused from complying with any provisions of this franchise by any failure of the other to insist upon or to seek compliance with such provisions.
§17.7    Breach of Contract.  In the event that either the Town or the Company fails to fulfill any of its substantial obligations under this franchise agreement, the non-breaching party will have a breach of contract claim against the other, in addition to any other remedy provided by law.


ARTICLE 18 - Approval

§18.1    Board Approval.  This grant of franchise shall not become effective unless approved by a majority vote of the Board of Trustees.
§18.2    Company Approval.  The Company shall file with the Town Clerk its written acceptance of this franchise and of all of its terms and provisions within ten (10) days after the adoption of this franchise by the Board of Trustees.  The acceptance shall be in form and content approved by the Town.  If the Company shall fail to timely file its written acceptance as herein provided, this franchise shall be and become null and void.