CHAPTER 5

Franchises and Communication Systems

Article I Cable Television Franchise

Sec. 5-1-10 Grant of franchise

Sec. 5-1-20 Customer service standards

Sec. 5-1-30 Policy

Sec. 5-1-40 Definitions

Sec. 5-1-50 Customer service

Sec. 5-1-60 Complaint procedure

Article II Electric Franchise

Sec. 5-2-10 Definitions

Sec. 5-2-20 Grant of authority

Sec. 5-2-30 Manner of use; repair

Sec. 5-2-40 Town held harmless

Sec. 5-2-50 Relocation of Company facilities

Sec. 5-2-60 Use of facilities by Town

Sec. 5-2-70 Rate regulation

Sec. 5-2-80 No discrimination

Sec. 5-2-90 Extensions

Sec. 5-2-100 Rules and regulations

Sec. 5-2-110 Franchise payment

Sec. 5-2-120 Payment schedule

Sec. 5-2-130 Gross revenue

Sec. 5-2-140 Adjustments

Sec. 5-2-150 Audit

Sec. 5-2-160 Most favored status

Sec. 5-2-170 Proration

Sec. 5-2-180 Term and effective date

Sec. 5-2-190 Removal

Sec. 5-2-200 Police power reserved

Sec. 5-2-210 Assignment

Sec. 5-2-220 Acceptance by Company

Article III Gas Franchise

Sec. 5-3-10 Franchise granted

Sec. 5-3-20 Term

Sec. 5-3-30 Franchise fees

Sec. 5-3-40 Governing rules and regulations

Sec. 5-3-50 Police power reserved

Sec. 5-3-60 Construction and maintenance of Grantee's facilities

Sec. 5-3-70 Extension of Grantee's facilities

Sec. 5-3-80 Relocation of Grantee's facilities

Sec. 5-3-90 Confidential information

Sec. 5-3-100 Force majeure

Sec. 5-3-110 Hold harmless

Sec. 5-3-120 Severability

Sec. 5-3-130 Nonwaiver

Sec. 5-3-140 Effect and interpretation of franchise

Sec. 5-3-150 Effective date and acceptance

Sec. 5-3-160 Notices

Article IV Telephone Utilities Occupation Tax

Sec. 5-4-10 Levy of tax

Sec. 5-4-20 Effective date

Sec. 5-4-30 Filing statement

Sec. 5-4-40 Failure to pay

Sec. 5-4-50 Penalty clause

Sec. 5-4-60 Inspection of records

Sec. 5-4-70 Local purpose

Sec. 5-4-80 Tax in lieu of other taxes

Article V Emergency Telephone Charge

Sec. 5-5-10 Authorization to sign

Sec. 5-5-20 Fee imposed

Sec. 5-5-30 Authorization to collect fee

Sec. 5-5-40 Effective date

ARTICLE I

Cable Television Franchise

Sec. 5-1-10. Grant of franchise.

Franchises for the operation of cable systems within the Town shall be granted pursuant to applicable law, and the terms of any franchise shall be set forth in a franchise agreement between the Town and the cable operator. (Ord. 08-04 §1)

Sec. 5-1-20. Customer service standards.

All cable operators providing cable service within the Town shall comply with the following customer service standards.

Sec. 5-1-30. Policy.

(a) The Cable Operator should be permitted the option and autonomy to first resolve citizen complaints without delay and interference from the Franchising Authority.

(b) Where a given complaint is not addressed by the Cable Operator to the citizen's satisfaction, the Franchising Authority may intervene, if requested to do so by the citizen. In addition, where a pattern of unremedied complaints or noncompliance with these standards is identified, the Franchising Authority may prescribe a cure and establish a thirty-day deadline for implementation of the cure. If the noncompliance is not cured within thirty (30) days, monetary sanctions may be imposed to encourage compliance.

(c) These standards are intended to be of general application; however, the Cable Operator shall be relieved of any obligations hereunder if it is unable to perform due to a region-wide natural emergency or in the event of force majeure affecting a significant portion of the franchise area. The Cable Operator is free to exceed these standards to the benefit of its Customers, and such shall be considered performance for the purposes of these standards. (Ord. 08-04 §1)

Sec. 5-1-40. Definitions.

When used in these customer service standards (the "standards"), the following words, phrases and terms shall have the meanings given below:

Cable Operator shall mean any Person who provide(s) Cable Services and directly or through one (1) or more affiliates owns a significant interest in such Cable System or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of such a Cable System.

Customer shall mean any person who receives service of any sort from the Cable Operator.

Customer Service Representative (or CSR) shall mean any person employed by the Cable Operator to assist, or provide service to, customers, whether by answering public telephone lines, writing service or installation orders, answering customers' questions, receiving and processing payments or performing other customer service-related tasks.

Franchising Authority shall mean the Town of Elizabeth acting by and through the Board or its designee and/or the Grantor.

Normal business hours shall mean those hours during which most similar businesses in the Town are open to serve customers. In all cases, normal business hours must include some evening hours at least one (1) night per week and/or some weekend hours.

Normal operating conditions shall mean those service conditions that are within the control of the Cable Operator. Those conditions that are not within the control of the Cable Operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the Cable Operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance of the cable system.

Service interruption means the loss of picture or sound on one (1) or more cable channels.

Town of Elizabeth is the Town of Elizabeth, Colorado, a body politic and corporate under the laws of the State of Colorado, and all of the area within its boundaries, as such may change from time to time. (Ord. 08-04 §1)

Sec. 5-1-50. Customer service.

(a) Courtesy. All employees of the Cable Operator shall be courteous, knowledgeable and helpful and shall provide effective and satisfactory service in all contacts with customers.

(b) Accessibility; cable system office hours and telephone availability.

(1) The Cable Operator shall maintain a local, toll-free or collect call telephone access line which will be available to its Subscribers twenty-four (24) hours a day, seven (7) days a week.

a. Trained company representatives will be available to respond to customer telephone inquiries during normal business hours.

b. After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day.

(2) Under normal operating conditions, telephone answer time by a customer service representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety percent (90%) of the time under normal operating conditions, measured on a quarterly basis.

(3) The Cable Operator will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards set forth above, unless an historical record of complaints indicates a clear failure to comply.

(4) Under normal operating conditions, the customer will receive a busy signal less than three percent (3%) of the time.

(5) Customer service center and bill payment locations will be open at least during normal business hours and will be conveniently located.

(c) Responsiveness; installations, outages and service calls.

(1) Under normal operating conditions, each of the following standards will be met no less than ninety-five percent (95%) of the time, measured on a quarterly basis:

a. Standard installation will be performed within seven (7) business days after an order has been placed. Standard installations are those that are located up to one hundred twenty-five (125) feet from the existing distribution system.

b. Excluding conditions beyond the control of the Cable Operator, the Cable Operator will begin working on service interruptions promptly and in no event later than twenty-four (24) hours after the interruption becomes known. The Cable Operator must begin actions to correct other service problems the next business day after notification of the service problem.

c. The appointment window alternatives for installations, service calls and other installation activities will be either a specific time or, at maximum, a four-hour time block during normal business hours. The Cable Operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.

d. The Cable Operator may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment.

e. If the Cable Operator's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer.

(2) The Cable Operator shall provide clear television reception that meets or exceeds technical standards established by the United States Federal Communications Commission (the "FCC"). The Cable Operator shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions shall be preceded by notice and, to the extent reasonably possible, shall occur during periods of minimum use of the system, preferably between 12:00 midnight and 6:00 a.m.

(3) The Cable Operator's customer service representative shall have the authority to provide credit for interrupted service, to waive fees, to schedule service appointments and to change billing cycles, where appropriate. Any difficulties that cannot be resolved by the customer service representative shall be referred to the appropriate supervisor who shall contact the customer by the end of the next business day and shall attempt to resolve the problem within forty-eight (48) hours or within such other time frame as is acceptable to the customer and the Cable Operator.

(4) Billings, refunds and credits.

a. Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including but not limited to basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. In case of a billing dispute, the Cable Operator must respond to a written complaint from a customer within thirty (30) days.

b. Refund checks will be issued promptly, but no later than either the customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or the return of the equipment supplied by the Cable Operator if service is terminated.

c. Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted.

(5) Treatment of private property.

a. The Cable Operator shall keep tree trimming to a minimum; trees and shrubs or other landscaping that are damaged by the Cable Operator, any employee or agent of the Cable Operator during installation or construction shall be restored to their prior condition or replaced. Trees and shrubs shall not be removed without the prior permission of the owner or legal tenant of the property on which they are located. This provision shall be in addition to, and shall not supersede, any requirement in the franchise agreement.

b. The Cable Operator shall, at its own cost and expense, and in a manner approved by the property owner, restore any property to as good condition as before the work causing such disturbance was initiated. The Cable Operator shall repair, replace or compensate a property owner for any damage resulting from the Cable Operator's installation, construction, service or repair activities.

c. Except in the case of an emergency involving public safety or service interruption to a large number of subscribers, the Cable Operator shall give reasonable notice to property owners or legal tenants prior to entering upon private premises, and the notice shall specify the work to be performed; provided that, in the case of construction operations, such notice shall be delivered or provided at least twenty-four (24) hours prior to entry. Nothing herein shall be construed as authorizing access or entry to private property, or any other property, where such right to access or entry is not otherwise provided by law. For the installation of pedestals or other major construction or installation projects, property owners and residents shall also be notified in writing at least one (1) week in advance. In the case of an emergency, the Cable Operator shall attempt to contact the property owner or legal tenant in person and shall leave a door hanger notice in the event personal contact is not made.

d. The Cable Operator personnel shall clean all areas surrounding any work site and ensure that all cable materials have been disposed of properly.

(d) Services for Customers with disabilities. The Cable Operator will use reasonable good-faith efforts to meet the special needs of customers with disabilities.

(e) Notification to subscribers.

(1) The Cable Operator shall provide written information on each of the following areas at the time of installation of service, at least annually to all subscribers, and at any time upon request:

a. Products and services offered;

b. Prices and options for programming services and conditions of subscription to programming and other services;

c. Installation and service maintenance policies;

d. Instructions on how to use the cable service;

e. Channel positions programming carried on the system; and

f. Billing and complaint procedures, including the address and telephone number of the local franchise authority's cable office.

(2) Customers will be notified of any changes in rates, programming services or channel positions as soon as possible in writing. Notice must be given to subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the Cable Operator. In addition, the Cable Operator shall notify subscribers at least thirty (30) days in advance of any significant changes in the other information required by Section 3.5(A). Notwithstanding any other provision herein, the Cable Operator shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee or any other fee, tax, assessment or change of any kind imposed by any federal agency, state or franchising authority on the transaction between the Cable Operator and the subscriber.

c. All officers, agents and employees of the Cable Operator or its contractors or subcontractors who are in personal contact with cable customers shall wear on their outer clothing identification cards bearing their name and photograph. The Cable Operator shall account for all identification cards at all times. Every vehicle of the Cable Operator shall be clearly visually identified to the public as working for the Cable Operator. All CSRs shall identify themselves orally to callers immediately following the greeting during each telephone contact with the public.

(f) Customer privacy.

(1) The Cable Operator shall not monitor cable television signals to determine the individual viewing patterns or practices of any customer without prior written consent from that customer, except as otherwise permitted by the Cable Franchise Agreement.

(2) The Cable Operator shall not sell or otherwise make available customer lists or other personally identifiable customer information without prior written customer consent, except as otherwise permitted by the Cable Franchise Agreement. The Cable Operator is permitted to disclose such information if such disclosure is necessary to render, or conduct, a legitimate business activity related to a cable service or other service provided by the Cable Operator to its customers.

(g) Safety. The Cable Operator shall install and locate its facilities, cable system and equipment in compliance with all federal, state, local and company safety standards, and in such manner as shall not unduly interfere with or endanger persons or property. Whenever the Cable Operator receives notice that an unsafe condition exists with respect to its equipment, the Cable Operator shall investigate such condition immediately, and shall take such measures as are necessary to remove or eliminate any unsafe condition. (Ord. 08-04 §1)

Sec. 5-1-60. Complaint procedure.

(a) Complaints to the Cable Operator.

(1) The Cable Operator shall establish written procedures for receiving, acting upon and resolving customer complaints, and crediting customer accounts, and shall publicize such procedures through printed documents at the Cable Operator's sole expense.

(2) Said written procedures shall prescribe a simple manner in which any customer may submit a complaint by telephone or in writing to the Cable Operator that it has violated any provision of these customer service standards, any terms or conditions of the customer's contract with the Cable Operator, or reasonable business practices.

(3) At the conclusion of the Cable Operator's investigation of a customer complaint, but in no more than thirty (30) calendar days after receiving the complaint, the Cable Operator shall notify the customer of the results of its investigation and its proposed action or credit.

(4) The Cable Operator shall also notify the customer of the customer's right to file a complaint with the Franchising Authority in the event the customer is dissatisfied with the Cable Operator's decision and shall thoroughly explain the necessary procedures for filing such complaint with the Franchising Authority.

(5) The Cable Operator's complaint procedures shall be filed with and approved by the Franchising Authority prior to implementation.

(b) Complaints to the Franchising Authority.

(1) Any customer who is dissatisfied with any proposed decision of the Cable Operator or who has not received a decision within the thirty-day period as required shall be entitled to have the complaint reviewed by the Franchising Authority or its designee.

(2) The customer may initiate the review by filing a written complaint, together with the Cable Operator's written decision, if any, with the Franchise Authority.

(3) The customer shall make such filing and notification within thirty (30) days of receipt of the Cable Operator's decision or, if no decision has been provided, within forty (40) days after filing the original complaint with the Cable Operator. The customer shall notify the Cable Operator that a complaint has been filed with the Franchise Authority by mailing a copy of the complaint to the Cable Operator by certified mail, return receipt requested.

(4) The Cable Operator shall file a written response to the complaint with the Franchise Authority within fifteen (15) days of receipt of a copy of the complaint from the customer.

(5) If the Franchising Authority or its designee decides that further evidence is warranted, the Franchising Authority or its designee may require the Cable Operator and the customer to submit, within ten (10) days of notice thereof, a written statement of the facts and arguments in support of their respective positions.

(6) The Cable Operator and the customer shall produce any additional evidence, including any reports from the Cable Operator, which the Franchising Authority or its designee may deem necessary to an understanding and determination of the complaint.

(7) The Franchising Authority or its designee shall issue a determination within fifteen (15) days after examining the materials submitted, setting forth its basis for the determination.

(8) The Franchising Authority or its designee may extend these time limits for reasonable cause and may intercede and attempt to negotiate an informal resolution.

(9) If the Franchising Authority or its designee determines that the customer's complaint is valid and that the Cable Operator did not provide the complaining customer with the proper solution and/or credit, the Franchising Authority or its designee may reverse any decision of the Cable Operator in the matter and/or require the Cable Operator to grant a specific solution as determined by the Franchising Authority or its designee in its sole discretion, and/or any credit provided for in these standards. If the Franchising Authority or its designee finds that the customer's complaint has no validity, the complaint shall be dismissed with no further action being taken.

(c) Overall quality of service. The Franchising Authority may evaluate the overall quality of customer service provided by the Cable Operator to customers:

(1) In conjunction with any performance review provided for in the franchise agreement; and

(2) At any other time, at its sole discretion, based on the number of customer complaints received by the Cable Operator and the Franchising Authority, and the Cable Operator's response to those complaints.

(d) Noncompliance with customer service standards. Noncompliance with any provision of these standards is a violation of these standards. (Ord. 08-04 §1)

ARTICLE II

Electric Franchise

Sec. 5-2-10. Definitions.

Whenever the word Town is hereinafter employed. it shall designate the Town of Elizabeth, Elbert County, Colorado, the Grantor; and whenever the word Company is used, it shall designate not only the Intermountain Rural Electric Association, a Colorado corporation, the Grantee, but also its successors and assigns. (Prior code 10-7.1; Ord. 01-14 Art. I)

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

There is hereby granted by the Town to the Company the franchise right, privilege and authority to construct, purchase, acquire, locate, maintain, operate and extend into, within and through the Town plants, works, systems and facilities for the generation, transmission and distribution of electrical energy for lighting, heating, cooling, power or other similar utility purposes, with the right and privilege, for the period and upon the terms and conditions hereinafter specified, to sell, furnish and distribute any or all of said products to the Town and the inhabitants thereof, by means of conduits, wires, cables, poles and structures or otherwise, on, over, under, along and across all public and dedicated streets, alleys, viaducts, bridges, roads, lanes, public ways and other public places in the Town, any extension, connection with or continuation of the same, and all new public and dedicated streets, alleys, viaducts, bridges, roads, lanes, public ways and other public places as may be hereafter laid out, opened, located or constructed within the territory now or hereafter included in the boundaries of the Town, in accordance with the terms of this Article. (Prior code 5-2-20; Ord. 01-14 Art. II)

Sec. 5-2-30. Manner of use; repair.

The Company is further granted the right, privilege and authority to excavate in, occupy and use any and all public and dedicated streets, alleys, viaducts, bridges, roads, lanes, public ways and other public places under the supervision of properly constituted Town authority for the purpose of bringing electrical energy into, within and through the Town and supplying electrical energy to the Town and the inhabitants thereof and in the territory adjacent thereto; provided, however, that the Company shall so locate its substations, transmission and distribution structures, lines, equipment and conduits within the Town as to cause minimum interference with the proper use of streets, alleys and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners whose property adjoins any of the said public and dedicated streets, alleys or other public ways and places. Should it become necessary for the Company, in exercising its rights and performing its duties hereunder, to interfere with any sidewalk, graveled or paved streets, public place or any other public improvement, the Company shall repair the same in a workmanlike manner, in accordance with and subject to the then-applicable ordinances of the Town. The Company shall use due care not to interfere with or damage any water mains, sewers or other structures in said public and dedicated streets, alleys or other public places. (Prior code 5-2-30; Ord. 01-14 Art. II)

Sec. 5-2-40. Town held harmless.

The Company shall so maintain its electric equipment and distribution system as to afford all reasonable protection against injury or damage to persons or property therefrom, and the Company shall save and hold the Town harmless from all liability or damage and all reasonable expenses necessarily accruing against the Town arising out of the negligent exercise by the Company of the rights and privileges hereby granted; provided that the Company shall have had notice 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. (Prior code 5-2-40; Ord. 01-14 Art. II)

Sec. 5-2-50. Relocation of Company facilities.

Cost of relocation of Company facilities located within the Town shall be borne as follows:

(1) Company facilities located within the public right-of-way will be relocated by the Company at its own cost and expense when such relocation is determined to be necessary by the Town, at the Town's sole discretion, to permit the Town to change street grades or to permit street or sidewalk improvements.

(2) The Company shall have no obligation to relocate at its expense any of its facilities located on private property, private easements or private rights-of-way, however acquired.

(3) In the event the Town abandons or vacates any public right-of-way in which the Company has located facilities, the Town agrees to exercise its authority to reserve the rights granted to the Company by this franchise; provided that the Company shall remove and, if necessary, relocate such facilitates to the nearest or most practicable public right-of-way at the request of a property owner burdened by such reservation if the property owner pays the actual cost of said removal and relocation. (Prior code 10-7.5; Ord. 01-14 Art. II)

Sec. 5-2-60. Use of facilities by Town.

The Town shall have the right to use all poles and appropriate overhead structures within the Town limits for any purpose directly related to the conduct of municipal business; provided, however, that the Company will assume no liability of any nature therefor, directly or indirectly, or incur any expense by virtue of the use by the Town of said poles and structures. Further, the use by the Town shall in no way interfere with the Company's use of said poles and structures in providing electric service within the Town or with the use of said poles and structures by any telecommunications company authorized by the Company to use said poles and structures. The Town shall remove or relocate any lines or equipment attached to the Company's poles or structures, at its expense, if requested by the Company to do so to accommodate any repair, replacement or improvement to the Company's electrical transmission or distribution system. (Prior code 10-7.6; Ord. 01-14 Art. II)

Sec. 5-2-70. Rate regulation.

The Company shall furnish electrical energy within the corporate limits of the Town or any addition thereto, to the Town, to the inhabitants thereof and to any person or corporation doing business in the Town or any addition thereto, at the rates and under the terms and conditions set forth in the Rates, Rules and Regulations promulgated by the Board of Directors of the Company, as amended from time to time. (Prior code 10-7.7; Ord. 01-14 Art. III)

Sec. 5-2-80. No discrimination.

The Company shall not, as to rates, charges, services, facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any corporation or person or subject any corporation or person to any prejudice or disadvantage, provided that nothing in this Section shall be taken to prohibit the establishment from time to time of a graduated scale of charges and classified rate schedules to which any customer coming within an established classification would be entitled. (Prior code 10-7.8; Ord. 01-14 Art. III)

Sec. 5-2-90. Extensions.

The Company will from time to time during the term of this franchise make such enlargements and extensions of its distribution systems as the business of the Company and the growth of the Town justify, in accordance with the Company's Rates, Rules and Regulations. (Prior code 10-7.9; Ord. 01-14 Art. III)

Sec. 5-2-100. Rules and regulations.

The Company from time to time may promulgate such rules, regulations, terms and conditions governing the conduct of its business, including the utilization of electrical energy and payment therefor, and the interference with or alteration of any of the Company's property upon the premises of its customers, as shall be necessary to ensure continuous and uninterrupted service to each and all of its customers and the proper measurement thereof and payment therefor, provided that the Company shall keep on file in its local office, available to the public, copies of its Rates, Rules and Regulations, including such revisions thereof as are adopted by the Company from time to time. (Prior code 10-7.10; Ord. 01-14 Art. III)

Sec. 5-2-110. Franchise payment.

As a further consideration for this franchise, and in lieu of all occupancy, occupation and license taxes or other taxes on the right to do business, or other special taxes, assessments or excises upon the property of the Company (except uniform taxes or assessments applicable to all taxpayers or businesses), the Company shall pay to the Town, for the period beginning on the effective date of this franchise to the termination of this franchise, a franchise fee equal to three percent (3%) of the first ten thousand dollars ($10,000.00) of annual gross revenue derived from the sale of electric energy to each customer at any one (1) location, plus two percent (2%) of the annual gross revenue derived from the sale of electric energy in excess of ten thousand dollars ($10,000.00) to each customer for such service at any one (1) location. (Prior code 10-7.11; Ord. 01-14 Art. IV)

Sec. 5-2-120. Payment schedule.

On or before March 31 of each year during the term of this franchise, the Company shall make an estimate of the total franchise payment to be paid to the Town for that year, and shall pay one-fourth (¼) of such estimated amount on or before March 31, June 30, September 30 and December 31. The March 31 payment shall be adjusted, if necessary, to reflect any difference between the estimated payments made and the actual payment due under this franchise for the previous year. (Prior code 10-7.12; Ord. 01-14 Art. IV)

Sec. 5-2-130. Gross revenue.

The term gross revenue, as used herein, shall be construed to mean any revenue derived by the Company under authorized rates, temporary or permanent, within the Town from the sale of electrical energy to customers other than the Town or any federal, state or local governmental entities after the net write-off of uncollectible accounts and corrections of bills theretofore rendered. (Prior code 10-7.13; Ord. 01-14 Art. IV)

Sec. 5-2-140. Adjustments.

In the event that the gross revenue of the Company for any period of time during the term of this franchise is reduced as a result of a customer refund after payment of the franchise fee for that period, the Company shall be entitled to a credit toward further payments for all franchise payments paid in excess of the franchise fee based on the Company's gross revenue as so reduced. (Prior code 10-7.14; Ord. 01-14 Art. IV)

Sec. 5-2-150. Audit.

For the purpose of ascertaining or auditing the correct amount to be paid under the provisions of this Article, the Town Clerk and/or any committee or auditor appointed by the Board of Trustees shall have access to the books of the Company for the purpose of checking the gross revenue received for operations within the Town. (Prior code 10-7.15; Ord. 01-14 Art. IV)

Sec. 5-2-160. Most favored status.

In the event that the Company should during the term of this franchise increase its franchise payments to any city or town in the Counties of Adams, Arapahoe, Douglas, Elbert and Jefferson in which it supplies electric service under this franchise, by reason of an increase in the percentage payments on revenue or a different basis of determining revenue excluded from the percentage payment, the same change to provide increased franchise payments shall be placed in effect in the Town, upon the Town's written request. (Prior code 10-7.16; Ord. 01-14 Art. IV)

Sec. 5-2-170. Proration.

Payments for the portions of the initial and terminal years of this franchise shall be made on the basis of revenue as above provided for the months and portions of months in which this franchise is in effect. (Ord. 01-14 Art. IV)

Sec. 5-2-180. Term and effective date.

This franchise shall become effective, as provided by law, thirty (30) days after its publication following final passage, upon acceptance in writing by the Company within said period; and the terms, conditions and covenants hereof shall remain in full force and effect for a period of twenty (20) years from and after the effective date. (Ord. 01-14 Art. V)

Sec. 5-2-190. Removal.

Upon the expiration of this franchise, if the Company shall not have acquired an extension or renewal thereof and accepted the same, it is hereby granted the right to enter upon the public and dedicated streets, alleys, bridges, viaducts, roads, lanes, public ways and other public places of the Town, for the purpose of removing therefrom any or all of its plants, structures, conduits, cables, poles, wire or equipment pertaining thereto at any time after the Town has had ample time and opportunity to purchase, condemn or replace them. In so removing said conduits, cables, poles, wire and equipment, the Company shall, at its own expense and in a workmanlike manner, refill, repair, resurface and return to its original state excavations that shall be made by it in the graveled or paved streets, alleys, bridges, viaducts, roads, lanes, public ways and other public or private places after the removal of conduits, poles or other structures. (Ord. 01-14 Art. V)

Sec. 5-2-200. Police power reserved.

The right is hereby reserved to 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, provided that such regulations shall be reasonable and not destructive of the rights herein granted, and not in conflict with the laws of the State or with orders of other authorities having jurisdiction in the premises. (Ord. 01-14 Art. V)

Sec. 5-2-210. Assignment.

Nothing in this franchise shall be so construed as to prevent the Company from assigning all of its rights, title or interest, gained or authorized under or by virtue of the terms of this franchise, subject to the Town's approval, not to be unreasonably withheld. Approval shall not be required for an assignment for the purpose of increased capitalization or loan or bond guarantee. (Ord. 01-14 Art. V)

Sec. 5-2-220. Acceptance by Company.

This franchise shall be subject to acceptance by the Company in writing filed with the Town Clerk within thirty (30) days after its publication and adoption by the Town. (Ord. 01-14 Art. V)

ARTICLE III

Gas Franchise

Sec. 5-3-10. Franchise granted.

The Town of Elizabeth, Colorado (hereinafter referred to as "Grantor"), hereby grants a nonexclusive franchise to Aquila, Inc., d/b/a Aquila Networks, a Delaware corporation (hereinafter called "Grantee"), its lessees, successors and assigns. Grantee is hereby granted the right, privilege, franchise, permission and authority to lay, construct, install, maintain, operate and extend in, along, over or across the present and future streets, alleys, avenues, bridges, public rights-of-way and public places as are now within the present or future limits of Grantor, a natural gas distribution system and all facilities necessary for the purpose of supplying natural gas or processed gas for all purposes to the inhabitants of Grantor and consumers in the vicinity thereof, and for the distribution of natural gas from or through Grantor to points beyond the limits thereof. Such facilities shall include, but not be limited to, all mains, services, pipes, conduits and appliances necessary or convenient for transmitting, transporting, distributing and supplying natural gas for all purposes for which it may be used, and to do all other things necessary and proper in providing natural gas service to the inhabitants of Grantor and in carrying on such business. (Ord. 03-20)

Sec. 5-3-20. Term.

The rights and privileges granted by this Article shall remain in effect for a period of fifteen (15) years from the effective date of the ordinance codified herein. (Ord. 03-20)

Sec. 5-3-30. Franchise fees.

(a) In exchange for the franchise granted herein, Grantee shall collect from its residential and commercial customers, but not from the Town, located within the corporate limits of Grantor, and pay to Grantor an amount equal to three percent (3%) of gross receipts derived from the sale, distribution or transportation of natural gas delivered within the present or future limits of Grantor. Gross receipts as used herein are revenues received from the sale, distribution or transportation of natural gas, after adjustment for the net write-off of uncollectible accounts and corrections of bills theretofore rendered. The amount paid by Grantee shall be in lieu of, and Grantee shall be exempt from, all other occupation, license, excise or right-of-way permit fees or taxes which the Town may impose for the rights and privileges herein granted or for the privilege of doing business within the Town; and in the event any such fee, charge, license, tax or assessment shall be imposed by the Town, the payment to be made in accordance with the provisions of this Section shall be reduced in an amount equal to the annual burden of such fee, charge, license, tax or assessment imposed upon Grantee. Ad valorem property taxes imposed generally upon all real and personal property within the Town shall not be deemed to affect the obligation of Grantee under this Section.

(b) Any consideration hereunder shall be reported and paid to Grantor by Grantee on a quarterly basis. Such payment shall be made not more than thirty (30) days following the close of the period for which payment is due. Initial and final payments shall be prorated for the portions of the periods at the beginning and end of the term of this franchise.

(c) Grantee shall list the local fee collected from customers as a separate item on bills for utility service issued to customers. If at any time the Colorado Public Utilities Commission, or other authority having proper jurisdiction, prohibits such recovery, then Grantee will no longer be obligated to collect and pay the fee herein contemplated. In addition, Grantee may discount or reduce the fee payable for natural gas delivered to a specific customer of Grantee when it is required to reduce the fee to retain the business of that customer. Modification or reduction of the fee should occur if the fee would cause the customer to cease purchase or transportation deliveries of natural gas from Grantee by installing equipment to access natural gas supply not subject to Grantor's fee.

(d) Grantor shall provide copies of annexation ordinances to Grantee on a timely basis to ensure appropriate franchise fee collection from customers within the corporate limits of Grantor.

(e) Grantor shall have access to and the right to examine during normal business hours those of Grantee's books, receipts, files, records and documents that are necessary to verify the correctness of payments due hereunder. If it is determined that a mistake was made in the payment of any fee required hereunder, such mistake shall be corrected promptly upon discovery, such that any underpayment by Grantee shall be paid within thirty (30) days of the recalculation, and any overpayment by Grantee shall be discounted from the next payment(s) due. (Ord. 03-20)

Sec. 5-3-40. Governing rules and regulations.

(a) This franchise is granted subject to all conditions, limitations and immunities now provided for, or as hereafter amended, and applicable to the operations of a public utility, by state or federal law. The rates to be charged by Grantee for service within the present or future corporate limits of Grantor and the rules and regulations regarding the character, quality and standards of service to be furnished by Grantee shall be under the jurisdiction and control of such regulatory body or bodies as may, from time to time, be vested by law with authority and jurisdiction over the rates, regulations and quality and standards of service to be supplied by Grantee. Provided, however, that should any judicial, regulatory or legislative body, having proper jurisdiction, take any action that precludes Grantee from recovering from its customers any cost associated with services provided hereunder, then Grantee and Grantor shall renegotiate the terms of this franchise in accordance with the action taken, so as to allow Grantee to be made whole economically. In determining the rights and duties of Grantee, the terms of this franchise shall take precedence over any conflicting terms or requirements contained in any other franchise enacted by Grantor.

(b) If an energy supplier is unable to furnish an adequate supply of energy due to an emergency, an order or decision of a public regulatory body, or other acts beyond the control of Grantee, then Grantee shall have the right and authority to adopt reasonable rules and regulations limiting, curtailing or allocating extensions of service or supply of energy to any customers or prospective customers, and withholding the supply of energy to new customers, provided that such rules and regulations shall be uniform as applied to each class of customers or prospective customers, and shall be nondiscriminatory as between communities receiving service from Grantee. (Ord. 03-20)

Sec. 5-3-50. Police power reserved.

The right is hereby reserved to Grantor to adopt, from time to time, in addition to the provisions herein contained, such ordinance as may be deemed necessary in the exercise of its police power, provided that such regulation shall be reasonable and not destructive of the rights herein granted and not in conflict with the laws of the State or with orders of other authorities having jurisdiction in the premises. (Ord. 03-20)

Sec. 5-3-60. Construction and maintenance of Grantee's facilities.

(a) Any pavements, sidewalks or curbing taken up and any and all excavations made shall be done in such a manner as to cause only such inconvenience to the inhabitants of Grantor and to the general public as is reasonably necessary; and repairs and replacements shall be made promptly by Grantee, leaving such properties in as good a condition as existed immediately prior to excavation.

(b) Grantee agrees that for the term of this grant, it will use its best efforts to maintain facilities and equipment sufficient to meet the current and future energy requirements of Grantor, its inhabitants and industries. While maintaining its facilities and equipment, Grantee shall obtain permits as required by ordinance, except that in emergency situations, Grantee shall take immediate unilateral actions as it determines are necessary to protect the public health, safety and welfare; in which case, Grantee shall notify Grantor as soon as reasonably possible.

(c) Grantor will give Grantee reasonable notice of plans for street improvements where paving or resurfacing of a permanent nature is involved that affect Grantee's facilities. The notice shall contain the nature and character of the improvements, the rights-of-way upon which the improvements are to be made, the extent of the improvements and the time when Grantor will start the work, and, if more than one (1) right-of-way is involved, the order in which this work is to proceed. The notice shall be given to Grantee a sufficient length of time, considering seasonable working conditions, in advance of the actual commencement of the work to permit Grantee to make any additions, alterations or repairs to its facilities. (Ord. 03-20)

Sec. 5-3-70. Extension of Grantee's facilities.

Upon receipt and acceptance of a valid application for service, Grantee shall, subject to its own economic feasibility criteria, make reasonable extensions of its distribution facilities to serve customers located within the current or future corporate limits of Grantor. (Ord. 03-20)

Sec. 5-3-80. Relocation of Grantee's facilities.

Grantee, in constructing and maintaining said gas distribution system, and in entering and using said streets, highways, avenues, alleys and public places in the Town and in laying and installing its mains, services, piping and related appurtenances and equipment, shall not in any permanent manner interfere with or injure any improvements which Grantor now has or may hereafter have upon any of its streets, alleys, highways or public places. In the event that it shall be necessary for Grantor to improve, enlarge, change or alter grade, or relocate any street, alley, highway or public place for a public purpose, such public purpose to be determined by the Board of Trustees, and such improvement or relocations shall necessitate moving any portion of the gas distribution system, Grantee shall, upon the request of Grantor, relocate such equipment in a timely manner at its sole expense. (Ord. 03-20)

Sec. 5-3-90. Confidential information.

Grantor acknowledges that certain information it might request pursuant to this franchise may be of a proprietary and confidential nature. If Grantee requests that any information provided by Grantee to Grantor be kept confidential due to such proprietary or commercial value, Grantor and its employees, agents and representatives shall maintain the confidentiality of that information, to the extent allowed by law. If Grantor is requested or required by legal or administrative process to disclose any such confidential information, Grantor shall promptly notify Grantee of such request or requirement so that Grantee may seek an appropriate protective order or other relief. Grantor shall use all reasonable efforts to ensure that the confidentiality of Grantee's confidential information is maintained. (Ord. 03-20)

Sec. 5-3-100. Force majeure.

It shall not be a breach or default under this franchise if either party fails to perform its obligations hereunder due to force majeure. Force majeure shall include, but not be limited to, the following: (l) physical events such as acts of God, landslides, lightning, earthquakes, fires, freezing, storms, floods, washouts, explosions, breakage or accident or necessity of repairs to machinery, equipment or distribution or transmission lines; (2) acts of others such as strikes, work-force stoppages, riots, sabotage, insurrections or wars; (3) governmental actions such as necessity for compliance with any court order, law, statute, ordinance, executive order or regulation promulgated by a governmental authority having jurisdiction; and (4) any other causes, whether of the kind herein enumerated or otherwise not reasonably within the control of the affected party to prevent or overcome. Each party shall make reasonable efforts to avoid force majeure and to resolve such event as promptly as reasonably possible once it occurs in order to resume performance; provided, however, that this provision shall not obligate a party to settle any labor strike. (Ord. 03-20)

Sec. 5-3-110. Hold harmless.

Grantee, during the term of this franchise, agrees to save harmless Grantor from and against all claims, demands, losses and expenses arising directly out of the negligence of Grantee, its employees or agents, in the constructing, operating and maintaining of distribution and transmission facilities or appliances of Grantee; provided, however, that Grantee need not save harmless Grantor from claims, demands, losses and expenses arising out of the negligence of Grantor, its employees or agents. (Ord. 03-20)

Sec. 5-3-120. Severability.

If any clause, sentence or section of this franchise is deemed invalid by any judicial, regulatory or legislative body having proper jurisdiction, the remaining provisions shall not be affected. (Ord. 03-20)

Sec. 5-3-130. Nonwaiver.

Any waiver of any obligation or default under this franchise shall not be construed as a waiver of any future defaults, whether of like or different character. (Ord. 03-20)

Sec. 5-3-140. Effect and interpretation of franchise.

The captions which precede each section of this franchise are for convenience in reference only and shall not be taken into consideration in the interpretation of any of the provisions of this franchise. (Ord. 03-20)

Sec. 5-3-150. Effective date and acceptance.

This franchise shall become effective and be a binding contract between Grantor and Grantee, upon its final passage and approval by Grantor, in accordance with applicable laws and regulations, and upon acceptance by Grantee by written instrument within sixty (60) days of passage by the governing body, and filed with the Town Clerk. The Town Clerk shall sign and affix the community seal to acknowledge receipt of such acceptance, and return one (1) copy to Grantee. If Grantee does not, within sixty (60) days following passage of the ordinance codified herein, express in writing its objections to any terms or provisions contained therein, or reject this franchise in its entirety, Grantee shall be deemed to have accepted this franchise and all of its terms and conditions. (Ord. 03-20)

Sec. 5-3-160. Notices.

Any notices required to be given hereunder shall be sent to the following:

If to Grantee:

Operating Vice President
Colorado Gas Operations
Aquila, Inc., d/b/a Aquila Networks
110 E. 9th
Lawrence, KS 66044

If to Grantor:

Town Clerk
Town of Elizabeth
P. O. Box 159
Elizabeth, CO 80107-0159

(Ord. 03-20)

ARTICLE IV

Telephone Utilities Occupation Tax

Sec. 5-4-10. Levy of tax.

There is hereby levied on and against each telephone utility company operation within the Town a tax on the occupation and business of maintaining a telephone exchange and lines connected therewith in the Town and of supplying local exchange telephone service to the inhabitants of the Town. The annual amount of tax levied hereby shall be nine hundred dollars ($900.00) effective as provided in Section 5-4-20 and upon each anniversary of the effective date. (Prior code 6-2.1)

Sec. 5-4-20. Effective date.

The tax levied by this Article shall commence on March 1, 1979, and shall be due and payable in twelve (12) equal monthly installments with the first such installment due thirty (30) days after the effective date. (Prior code 6-2.2)

Sec. 5-4-30. Filing statement.

Within thirty (30) days after the effective date as provided in Section 5-4-20 above, each telephone utility company subject to this Article shall file with the Town Clerk, in such form as the Clerk may require, a statement showing the total telephone accounts for which local exchange telephone service was provided within the corporate limits of the Town on the effective date. Such statement shall be filed within thirty (30) days after each anniversary of the effective date showing such accounts on the anniversary date. (Prior code 6-2.3)

Sec. 5-4-40. Failure to pay.

If any telephone utility company subject to the provisions of this Article shall fail to pay the taxes as herein provided, the full amount thereof shall be due and collected from such company, and the same together with an addition of ten percent (10%) of the amount of taxes due shall be and hereby is declared to be a debt due and owing from such company to the Town. The Town Attorney upon direction of the Board of Trustees shall commence and proceed to final judgment and determination in any court of competent jurisdiction an action at law to collect the said debt in the name of the people of the State. (Prior code 6-2.4)

Sec. 5-4-50. Penalty clause.

If any officer, agent or manager of a telephone utility company which is subject to the provisions of this Article shall fail, neglect or refuse to make or file the annual statement of accounts provided in Section 5-4-30 above, the said officer, agent, manager or person shall, on conviction thereof, be punished by a fine not less than twenty-five dollars ($25.00) nor more than three hundred dollars ($300.00); provided that each day after said statement shall become delinquent during which the said officer, agent, manager or person shall so fail, neglect or refuse to make and file such statement shall be considered a separate and distinct offense. (Prior code 6-2.5)

Sec. 5-4-60. Inspection of records.

The Town, its officers, agents or representatives shall have the right to all reasonable hours and times to examine the books and records of the telephone utility company which are subject to the provisions of this Article and to make copies of the entries or contents thereof. (Prior code 6-2.6)

Sec. 5-4-70. Local purpose.

The tax herein provided is upon occupations and businesses in the performance of local functions and is not a tax upon those functions relating to interstate commerce. It is expressly understood that none of the terms of this Article be construed to mean that any telephone utility company is issued a franchise by the Town. (Prior code 6-2.7)

Sec. 5-4-80. Tax in lieu of other taxes.

The tax herein provided shall be in lieu of all other payments by or fees and taxes on any telephone utility subject to the provisions of this Article, other than ad valorem taxes, and in addition shall be in lieu of any free service furnished to the Town by any said telephone utility. (Prior code 6-2.8)

ARTICLE V

Emergency Telephone Charge

Sec. 5-5-10. Authorization to sign.

The Mayor is authorized to sign the intergovernmental agreement creating an emergency telephone service authority in order to establish and maintain an emergency telephone service system in the County. (Prior code 6-4.1)

Sec. 5-5-20. Fee 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 tariff rates as approved by the Public Utilities Commission or fifty cents ($.50), whichever is less. Upon recommendation of the 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. (Prior code 6-4.2)

Sec. 5-5-30. Authorization to collect fee.

Telephone service suppliers providing 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. (Prior code 6-4.3)

Sec. 5-5-40. Effective date.

This Article shall not be effective until the intergovernmental agreement creating the emergency telephone service authority and concerning the implementation of an emergency telephone service system is signed by representatives of all parties to the agreement. (Prior code 6-4.4)