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§18.1 No Waiver. Neither the City nor the Company shall be excused from complying with any of the terms and conditions of this franchise by any failure of the other, or any of its officers, employees, or agents, upon any one or more occasions, to insist upon or to seek compliance with any such terms and conditions. §18.2 Successors and Assigns. The rights, privileges, and obligations, in whole or in part, granted and contained in this franchise shall inure to the benefit of and be binding upon the Company, its successors and assigns, to the extent that such successors or assigns have succeeded to or been assigned the rights of the Company pursuant to Article 13 of this franchise. §18.3 Third Parties. Nothing contained in this franchise shall be construed to provide rights to third parties. §18.4 Notice. Both parties shall designate from time to time in writing representatives for the Company and the City who will be the persons to whom notices shall be sent regarding any action to be taken under this franchise. Notice shall be in writing and forwarded by certified mail 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 as follows: To the City: Mayor of Sterling P.O. Box 4000 421 North 4 th Street Sterling, CO 80751
Manager of Public Works P.O. Box 4000 421 North 4 th Street Sterling, CO 80751
With a copy to: City Attorney City of Sterling P.O. Box 4000 421 North 4 th Street Sterling, CO 80751
To the Company:
Vice President of Customer and
Public Service Company of Colorado P.O. Box 840 Denver, Colorado 80201
With a copy to: Legal Department Public Service Company of Colorado P.O. Box 840 Denver, Colorado 80201
§18.5 Examination Of Records. The parties agree that any duly authorized representative of the City and the Company shall have access to and the right to examine any directly pertinent non-confidential books, documents, papers, and records of the other party involving any activities related to this franchise. All such records must be kept for a minimum of four (4) years. §18.6 Payment Of Taxes And Fees. A. The Company shall pay and discharge as they become due, promptly and before delinquency, all taxes, assessments, rates, charges, license fees, municipal liens, levies, excises, or imposts, whether general or special, or ordinary or extra-ordinary, of every name, nature, and kind whatsoever, including all governmental charges of whatsoever name, nature, or kind, which may be levied, assessed, charged, or imposed, or which may become a lien or charge against this agreement ("Impositions"), provided that Company shall have the right to contest any such Impositions and shall not be in breach of this section so long as it is actively contesting such Impositions. B. The City shall not be liable for the payment of taxes, late charges, interest or penalties of any nature other than pursuant to applicable tariffs on file and in effect from time to time with the PUC. §18.7 Conflict Of Interest. The parties agree that no official, officer or employee of the City shall have any personal or beneficial interest whatsoever in the services or property described herein and the Company further agrees not to hire or contract for services any official, officer or employee of the City to the extent prohibited by law, including ordinances and regulations of the City. §18.8 Certificate of Convenience and Necessity. The City agrees to support any application the Company may file with the PUC to obtain a certificate of public convenience and necessity to exercise the rights and obligations granted under this franchise. §18.9 Authority. Each party represents and warrants that except as set forth below, it has taken all actions that are necessary or that are required by its ordinances, regulations, procedures, bylaws, or applicable law, to legally authorize the undersigned signatories to execute this agreement on behalf of the parties and to bind the parties to its terms. The person(s) executing this agreement on behalf of each of the parties warrants that they have full authorization to execute this agreement. The City acknowledges that notwithstanding the foregoing, the Company requires a certificate of public convenience and necessity from the PUC in order to operate under the terms of this franchise. §18.10 Severability. Should any one or more provisions of this franchise be determined to be unconstitutional, illegal, unenforceable or otherwise void, all other provisions nevertheless shall remain effective; provided, however, the parties shall forthwith enter into good faith negotiations and proceed with due diligence to draft one or more substitute provisions that will achieve the original intent of the parties hereunder. §18.11 Force Majeure. Neither the City nor the Company shall be in breach of this franchise if a failure to perform any of the duties under this franchise is due to uncontrollable forces, which shall include, but not be limited to: accidents, breakdown of equipment, shortage of materials, shortage of labor, 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. §18.12 Earlier Franchises Superseded. This franchise shall constitute the only franchise between the City and the Company for the furnishing of Utility Service, street lighting service, and traffic signal lighting service, and it supersedes and cancels all former franchises between the parties hereto. §18.13 Titles Not Controlling. Titles of the paragraphs herein are for reference only, and shall not be used to construe the language of this franchise. §18.14 Applicable Law. Colorado law shall apply to the construction and enforcement of this franchise. The parties agree that venue for any litigation arising out of this franchise shall be in the District Court for Logan County, State of Colorado. If any part, section, subsection, sentence, clause or phrase of this ordinance adopted hereby is for any reason held to be invalid, such invalidity shall not affect the validity of the remaining sections of the ordinance; the City Council hereby declares that it would have passed the ordinance in each part, section, subsection, sentence, clause or phrase thereof, irrespective of the fact that one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. This ordinance shall be in full force and effect ten days after its passage. INTRODUCED, READ AND ORDERED PUBLISHED THIS 9th DAY OF OCTOBER , 2007. PUBLISHED ON OCTOBER 12, 19, AND 26, 2007, AND NOVEMBER 2 AND 9, 2007. PUBLIC HEARING AND SECOND READING SCHEDULED FOR THE 13TH DAY OF NOVEMBER, 2007, AT 7:00 P.M. IN CITY COUNCIL CHAMBERS, 421 NORTH FOURTH STREET, STERLING, COLORADO.
ADOPTED AND APPROVED THIS 13TH DAY OF NOVEMBER , 2007.
"CITY" Approved this 20TH of DECEMBER, 2007, by Public Service Company of Colorado, subject to applicable federal, state and local law.
"COMPANY" |
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