HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 12/04/2018 - ITEMS RELATING TO TRANSFER OF A PORTION OF THE PLAAgenda Item 18
Item # 18 Page 1
AGENDA ITEM SUMMARY December 4, 2018
City Council
STAFF
Tim McCollough, Light and Power Operations Manager
Colman Keane, Broadband Director
Cyril Vidergar, Legal
SUBJECT
Items Relating to Transfer of a Portion of the Platte River Power Authority (Platte River) Fiber Optic Network to
the City of Fort Collins and Authorizing a New Franchise for Platte River Fiber.
EXECUTIVE SUMMARY
A. Resolution 2018-116 Approving an Intergovernmental Agreement for Fiber Management Between Town of
Estes Park, City of Fort Collins, City of Longmont, City of Loveland and Platte River Power Authority.
B. Public Hearing and First Reading of Ordinance No. 172, 2018, Approving a Franchise and License
Agreement between the City of Fort Collins and Platte River Power Authority for a Fiber Optic Network.
The purpose of this item is to consider approval of two agreements necessary to facilitate the transfer of a
portion of Platte River’s Fiber Optic Network to the City.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution and Ordinance on First Reading.
BACKGROUND / DISCUSSION
To ensure high quality, reliable communications critical to the real-time operation of its electric transmission
system, Platte River installed a fiber optic communication system (the “Fiber Optic Network”) in 1999
connecting its electric utility substations in Fort Collins and the cities of Loveland and Longmont, and the town
of Estes Park (collectively the “Member Cities”).
• In 1998, the City Council approved a Franchise and License Agreement granting Platte River a franchise
to use City streets and a license to use Electric Utility facilities for the Fiber Optic Network (the “1998 Fiber
Franchise Agreement”).
• The Fiber Optic Network installed by Platte River includes underground and aboveground fiber optic cable
(the “Cable Bundle”) containing approximately 144 fiber strands in 12 buffer tubes, located in part within
each City’s boundaries (the “Local Loop”) and in part within and outside each City’s boundaries to connect
Platte River facilities in all the Member Cities (the “Long-Haul Fiber”).
• The Cable Bundle contains twelve (12) fiber-optic strands in 1 buffer tube that serves Platte River’s needs
to support its operations related to the generation and transmission of electricity at wholesale (the “Platte
River Fiber”). The remainder of the fiber in the Cable Bundle (the “Excess Fiber”) is not required for Platte
River’s purposes and was installed for the benefit of the Member Cities.
Agenda Item 18
Item # 18 Page 2
• The Fort Collins Local Loop includes excess fiber strands (about 132) not used by Platte River for
operation of its electric transmission system. It is anticipated that ownership of the Local Loop may be
useful in connection with City broadband efforts. Some fiber in the Fort Collins Local Loop is used by the
City for operations (Information Technology and Traffic), and some is leased to third parties, including
Poudre School District, UC Health, PFA, Liberty Common School.
• The 1998 Fiber Franchise Agreement will expire December 31, 2018. After discussion, Platte River and
the Member Cities desire to transfer the Local Loops to the respective owner-City, with Platte River
retaining ownership of the Platte River Fiber and Long-Haul Fiber. Discussion will continue as to how
excess Long-Haul Fiber will be transferred to the Member Cities in the future to address Platte River’s
desire to divest itself of ownership of all Excess Fiber (including the Long-Haul Fiber).
• Platte River’s Board of Directors, by Resolution 15-18 adopted on September 27, 2018, authorized its
General Manager to transfer to the City its Local Loop on execution of an Intergovernmental Agreement for
Fiber Management.
• The City and Platte River will continue to share interconnected electric utility and fiber optic resources
through the Fiber Optic Network and the Platte River Fiber remains collocated within the Local Loop to be
transferred to the City.
• In furtherance of this transfer and to preserve the operational integrity and reliability of the Fiber Optic
Network critical to Platte River’s electric distribution system, staff and the City Manager recommend
Council approve the associated Intergovernmental Agreement for Fiber Management (“Fiber Management
IGA”), which describes how Platte River and the Member Cities will cooperate in the operation of the Fiber
Optic Network.
• In recognition of this transfer and to preserve Platte River’s right to maintenance and collocation of the
Platte River Fiber and Long-Haul Fiber in the Local Loop and in the City streets and Electric Utility facilities
to serve the City’s utility and fiber optic needs, staff and the City Manager recommend Council approve the
Franchise and License Agreement.
• The proposed Franchise and License Agreement grants a non-exclusive twenty (20) year franchise to use
City streets and public utility easements and a license to locate and maintain the Platte River Fiber and
Long-Haul Fiber in and on Electric Utility facilities for Platte River’s delivery of wholesale electricity to the
City to supply its electric utility enterprise, without a cash franchise fee in recognition of the benefits and
value received by the City “in-kind”, which value is reasonably estimated to compensate the City for the
use of its property. The benefits and in-kind value that will be received by the City and its Electric utility
customers include the following:
1. Promotion of the health, safety and general welfare and provision of benefits to significant segment of
the citizens of Fort Collins by allowing the delivery electricity from PRPA to the City to supply its
electric utility; and
2. Support of the City Councils goals and adopted policies, specifically Economic Health Objective 3.5 of
the City 2018 Strategic Plan – Maintain utility systems, services, infrastructure and predictable rates;
and
3. Eliminating the requirement of a cash franchise fees reduces increases in cost of electricity that would
otherwise be borne by City electric utility customers; and
4. No direct financial benefit to PRPA or any other private person or entity is realized beyond incidental
and insubstantial amounts relative to the public purpose of obtaining wholesale electricity at a
reasonable cost for delivery to electric utility customers (who would otherwise bear the cost of a cash
franchise fee).
In addition, the franchise fee can be modified by the City Council in the future by ordinance.
Agenda Item 18
Item # 18 Page 3
CITY FINANCIAL IMPACTS
At this time, the City will not incur any financial impacts from entering into the Fiber Management IGA or
granting a new twenty (20) year franchise.
PUBLIC OUTREACH
Article XI, Section 1 of the City Charter requires publication in a local newspaper “once a week for three (3)
successive weeks immediately prior to the date of the hearing” on the Franchise. The publication requirement
has been satisfied and Platte River will pay the costs.
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RESOLUTION 2018-116
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING AN INTERGOVERNMENTAL AGREEMENT
FOR FIBER MANAGEMENT BETWEEN TOWN OF ESTES PARK,
CITY OF FORT COLLINS, CITY OF LONGMONT, CITY OF
LOVELAND AND PLATTE RIVER POWER AUTHORITY
WHEREAS, the City of Fort Collins (hereinafter referred to as "the City") currently owns
and operates an electric utility that acquires and distributes electricity to utility customers
(hereinafter referred to as "the Electric Utility"); and
WHEREAS, the Platte River Power Authority (“Platte River”) was formed by
intergovernmental agreement among the Cities of Fort Collins, Longmont, and Loveland; and the
Town of Estes Park (the “Four Municipalities”) to provide electric generation and transmission
services, pursuant to Colorado Revised Statutes (C.R.S.) Section 29-1-204; and
WHEREAS, Platte River was created by the Four Municipalities for the purposes of
generation and transmission of electricity to be sold to the Four Municipalities on a wholesale
basis; and
WHEREAS, in order to upgrade its operations in the generation and transmission of
electricity, Platte River embarked on a project to link its electric substations in the City with its
substations in the cities of Loveland and Longmont by a fiber-optic communication system (the
“Fiber Optic Network”); and
WHEREAS, in constructing the Fiber Optic Network, Platte River installed underground
and aboveground a fiber-optic cable (hereinafter referred to as the “Cable") that has been located,
in part, within the City's boundaries since 1999; and
WHEREAS, the Cable contains approximately 144 fiber-optic strands, which includes
one buffer tube of 12 fiber-optic strands (“Platte River Fiber”) and the remaining strands in 11
buffer tubes that are dedicated to use by the Four Municipalities (the “Excess Fiber”); and
WHEREAS, the Fiber Optic Network, including the Platte River Fiber and the Excess
Fiber, includes fiber configured and serving Platte River facilities within the City (a “Local
Loop”), and fiber configured and connecting the Four Municipalities (the “Long-Haul Fiber”);
and
WHEREAS, on December 15, 1998, the Council of the City of Fort Collins adopted
Ordinance No. 229, 1998 pursuant to which the City Council approved a Franchise and License
Agreement dated December 29, 1998 (the “1998 Fiber Franchise Agreement”), granting to Platte
River, on the terms and conditions set forth therein, a franchise to use the City’s streets and a
license to use certain City electric utility facilities; and
WHEREAS, the 1998 Fiber Franchise Agreement is expiring, according to its terms, on
December 31, 2018; and
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WHEREAS, Platte River and the Four Municipalities have determined to transfer the
Excess Fiber in the Local Loops to the respective cities where the Local Loops reside, with Platte
River to retain ownership of the Platte River Fiber and Long-Haul Fiber; and
WHEREAS, on September 27, 2018, Platte River’s Board of Directors adopted
Resolution 15-18 authorizing the General Manager to transfer to the City its Local Loop on
execution of an Intergovernmental Agreement for Fiber Management; and
WHEREAS, contemporaneous with this Resolution, the Fort Collins City Council
adopted Ordinance No. 172, 2018 pursuant to which the City Council grants a new franchise and
license for the Platte River Fiber and the Long-Haul Fiber located within the City’s boundaries
(“2018 Fiber Franchise Agreement”); and
WHEREAS, the collocation and cooperative management of the Platte River Fiber and
Long-Haul Fiber with the City’s Local Loop and the other Local Loops transferred to the other
municipalities under the proposed Fiber Management IGA is intended to ensure reliability of the
electric generation and transmission system operated by Platte River and the retail electric
utilities operated by the Four Municipalities and to prevent or minimize controllable outages in
the Fiber Optic Network; and
WHEREAS, in accordance with C.R.S. Section 29-1-203, governments may cooperate or
contract with one another to provide any function, service or facility lawfully authorized to each
of the cooperating or contracting units; and
WHEREAS, under Section 1-22 of the City Code, intergovernmental agreements and
other cooperative arrangements between the City and other governmental entities are to be
submitted to the City Council for review, unless they fit within one of the exceptions that permit
authorization by the City Manager; and
WHEREAS, in consideration of the foregoing benefits accruing to the City and its
Electric Utility customers, Utilities staff and the City Manager recommend the City Council
approve the Intergovernmental Agreement for Fiber Management between Platte River and the
other Four Municipalities, including the City, in substantially the set forth in Exhibit “A”
attached hereto; and
WHEREAS, such an agreement will enable the City to share and provide its resources to
connected communities, which will in turn further the partnership between Platte River and its
founding members, and benefit City utility rate payers through maintaining reliable and efficient
regional utility networks.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS, as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
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Section 2. That it is in the best interests of the City’s utility ratepayers and the City
for the City to enter into the Intergovernmental Agreement for Fiber Management with Platte
River Power Authority and its founding municipalities to provide coordinate management of an
interconnected fiber-optic communication system comprised of local loops and long-haul
segments connecting the electric substations served in each municipality by Platte River Power
Authority.
Section 3. That the Mayor is hereby authorized to enter into the Intergovernmental
Agreement for Fiber Management between Platte River and the Four Municipalities in
substantially the form attached hereto as Exhibit “A”, with such modifications in form or
substance as the City Manager, in consultation with the City Attorney, determines to be
necessary or appropriate to protect the interests of the City or to effectuate the purpose of this
Resolution.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 4th
day of December, A.D. 2018.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
Intergovernmental Agreement for Fiber Management
Between
Town of Estes Park
City of Fort Collins
City of Longmont
City of Loveland
And
Platte River Power Authority
THIS INTERGOVERNMENTAL AGREEMENT FOR FIBER MANAGEMENT (“Agreement”) is
made and entered into by and between The Town of Estes Park (“Estes Park”), the City of Fort
Collins (“Fort Collins”), the City of Longmont (“Longmont”), the City of Loveland (“Loveland”),
collectively (the “Municipalities”), individually (a “Municipality”) and Platte River Power Authority
(“Platte River”).
1. Background.
Platte River constructed and maintains a fiber optic network in and around the Municipalities and
between them to ensure high quality, reliable communications critical to real-time operation of its
electric system. The fiber optic network includes the cables and fiber bundles on local fiber loops
within the Municipalities, as well as the long-haul cables and fiber bundles that interconnect these
local Municipal loops. Installation of the fiber optic network was necessary to replace and upgrade
the communication systems used for Platte River’s operational control of the transmission
substations through which Platte River delivers power to the Municipalities. As installed, the fiber
optic network includes more fiber than that required for Platte River’s purposes. At the time of
installation, the Platte River Board of Directors determined that the incremental costs associated
with installing the excess fiber were insignificant. The excess fiber was intended to be dedicated
to the Municipalities to be used for their telecommunications purposes. To further the
telecommunications purposes of each Municipality, Platte River has conveyed to each
Municipality ownership of the excess fiber within their respective local fiber loops. The cost of the
excess fiber has been fully depreciated and applied to the equity interests held by each respective
Municipality.
To ensure the reliability of its electric system, Platte River must remain responsible for managing
the fiber optic network including operations, maintenance and capital replacement services and
costs, including the excess fibers regardless of fiber strand ownership. To this end, Platte River
adopted an accounting policy through Resolution No. 16-17 that places certain cost
responsibilities with Platte River for replacement, operations and maintenance expenses on the
fiber optic network in recognition of the importance of the fiber system for electric reliability. Platte
River is also willing to perform other services as directed by a Municipality, including but not limited
to negotiating dark fiber leases. This Agreement sets forth the terms and conditions whereby
Platte River will provide fiber optic network management and related services to the
Municipalities.
2. Definitions.
Dark Fiber – Excess Fiber within the Fiber Optic Network that is not in use.
EXHIBIT A
Fiber Management Agreement
Page 2
Excess Fiber – Fiber optic strands contained within the Fiber Optic Network that are in excess
of the twelve (12) strands (or more in some instances) required for Platte River’s electric
operations.
Fiber Cable – The cable within the Fiber Optic Network that contains the Platte River Fiber and
the Excess Fiber.
Fiber Optic Network – Consists of cables and fiber bundles on the local fiber loops within the
electric service area of the Municipalities, as well as the long-haul cables and fiber bundles that
interconnect the Municipalities, irrespective of ownership of the individual fibers, which contain
fibers that are utilized to operate the bulk electric system. The Fiber Optic Network does not
include the Fiber Laterals not owned by Platte River spliced onto the Fiber Optic Network.
Fiber Optic Network Accounting Policy – The policy adopted by Platte River through
Resolution No. 16-17 to establish cost responsibility and accounting treatment for the Fiber Optic
Network, attached as Exhibit B, as such policy may be updated from time to time.
Fiber Laterals – Fiber Optic cables connected to the Fiber Optic Network for the purpose of
serving specific uses, which may be owned in whole or in part by Platte River, a Municipality, or
other users under leases of Excess Fiber.
Local Loop – The cables and fiber bundles located on the local fiber ring within the electric
service area of a Municipality.
Long-Haul – The cables and fiber bundles located on the long-haul sections of the Fiber Optic
Network that interconnect the Local Loops.
Platte River Fiber – Generally twelve (12) strands of fiber located within a single buffer tube
within the Fiber Optic Network which are required for Platte River’s electric operations. There may
be instances where Platte River owns additional strands or additional buffer tubes in the Fiber
Optic Network.
System-wide Fiber Maintenance Protocol – The set of system-wide fiber optic practices and
standards for the Fiber Optic Network, equipment, splicing, and the conditions of hand holes and
splice cases adopted by Platte River the initial version of which is attached as Exhibit A, as may
be updated from time to time by the Technical Committee.
3. Term.
This Agreement may be executed by the parties hereto in counterparts and will be effective as
between Platte River and each Municipality upon execution (“Effective Date”). This Agreement
will remain in effect between Platte River and a Municipality that has executed the Agreement for
as long as the Municipality continues to use the Excess Fiber located within the Fiber Cable and
until terminated as set forth in Section 12 herein. If a Municipality intends to discontinue use of
the Excess Fiber, that Municipality will provide one-year written notice of its intent to Platte River.
4. Administration.
Two committees will provide assistance in the implementation of this Agreement. Matters coming
before the committees will be resolved by majority vote.
Fiber Management Agreement
Page 3
A. The Technical Committee consists of one representative each from Estes Park, Fort Collins,
Longmont, Loveland, and Platte River, each of whom shall have one vote. Each Municipality
shall appoint a representative who has technical experience in fiber management. The
committee will meet no less frequently than once each calendar year in the fourth quarter, or
such other time as the parties may mutually agree and will provide technical support and input
regarding Platte River’s management of the Fiber Optic Network. The Technical Committee
shall have the authority to review and update the System-wide Fiber Maintenance Protocol
(“Protocol”). Provided, however, that Platte River shall have the final decision-making
authority with respect to aspects of the Protocol that impact the reliability of Platte River’s
electric system. The agenda for the annual meeting may also include consideration of Platte
River’s fiber management and other issues involving the operation and management of the
Fiber Optic Network.
B. The Executive Committee consists of the utility or broadband directors of each of the four
Municipalities and Platte River’s General Manager, each of whom shall have one vote.
Provided, however, that Platte River shall have the final decision-making authority with
respect to decisions of the Executive Committee that impact the reliability of Platte River’s
electric system. The Executive Committee will meet as necessary or as requested by
members of the Executive Committee. The Executive Committee will evaluate Platte River’s
fiber management, provide policy direction to Platte River relating to the leasing of Excess
Fiber on the Long-Haul and operation of the Long-Haul Fiber Account, resolve any disputes
that arise in the management of the Fiber Optic Network and address any other policy issues
that require executive decision-making authority.
5. Management of the Fiber Optic Network – Platte River’s Role and Responsibilities.
In order to prevent or minimize controllable outages the parties hereto acknowledge that it is
crucial that a single entity take a holistic system-wide view when managing physical work being
performed on the Fiber Optic Network. Platte River will perform the following system-wide
management activities:
a. Coordinate and communicate with the impacted Municipalities when fiber work is
performed to ensure that two or more activities are not performed simultaneously thereby
opening the fiber loop in multiple places at one time.
b. Coordinate and communicate with the impacted Municipalities, Platte River’s Power
System Operations, Substation Engineering, and Telecommunications when fiber work is
performed to ensure that no other operational conditions are present which could be
compounded by a fiber outage.
c. In consultation with the Technical Committee, set system-wide fiber optic standards for
equipment, splicing, and the conditions of hand holes and splice cases (the “System-wide
Fiber Maintenance Protocol”), the initial version of which is attached hereto as Exhibit A
and incorporated herein, as amended from time to time.
d. Communicate with the impacted Municipalities and Platte River’s Electric Operations so
that they know when work is being performed on the Fiber Optic Network.
e. In consultation with the Technical Committee, ensure that common standards are
implemented across the entire Fiber Optic Network and ensure that only qualified entities
perform work on the Fiber Optic Network.
Fiber Management Agreement
Page 4
f. Platte River will be responsible for locating the Fiber Optic Network.
Each Municipality shall have the right to perform, with its own forces or through qualified third
parties, such physical work as it deems necessary or appropriate to the maintenance, use, and
enhancement of its Local Loop and related portions of the Fiber Optic Network, subject to
coordination by Platte River in accordance with the forgoing provisions and the System-wide Fiber
Maintenance Protocol.
6. Cost Responsibility.
Costs associated with the Fiber Optic Network shall be allocated as set forth in Platte River’s
Fiber Optic Network Accounting Policy, attached hereto as Exhibit B and incorporated herein, as
amended from time to time.
Administrative expenses in the amount of ten percent (10%) of the lease revenues collected shall
be deducted by Platte River from lease revenues due to the Municipalities to cover Platte River’s
costs incurred in leasing Excess Fiber on behalf of the Municipalities. The ten percent (10%) fee
shall be reviewed and modified periodically by Platte River, as necessary, to ensure that it remains
a reasonable estimate of Platte River’s actual administrative expenses. No administrative fee shall
be assessed for leases that have been pre-paid prior to execution of this Agreement.
Costs to repair damage to the Fiber Optic Network shall be borne by the entity legally responsible
for causing such damage.
7. Reliability Standards.
The parties hereto acknowledge that as a “Transmission Operator” (defined by the Glossary of
Terms Used in NERC Reliability Standards), Platte River must comply with NERC Standard TOP-
001. The parties hereto further acknowledge that Platte River shall follow its adopted outage
coordination procedure for TOP-001, as amended from time to time.
8. Role and Responsibilities of the Municipalities.
Each Municipality shall comply with the System-wide Fiber Maintenance Protocol set forth in
Exhibit A hereto, as amended from time to time by the Technical Committee. No work shall be
performed on the Fiber Optic Network by a Municipality without compliance with the System-wide
Fiber Maintenance Protocol. Additional temporary and/or limited-area protocols may be agreed
upon between Platte River and a Municipality if required to address unique circumstances that
affect the Local Loop in that Municipality.
9. Excess Fiber Leasing.
In October 1998, the Platte River Board of Directors adopted Resolution 17-98 which authorized
the General Manager to negotiate dark fiber leases on behalf of the Municipalities. Since that
time, Platte River has been leasing dark fiber within the Local Loops in Fort Collins, Loveland and
Estes Park to third parties and returning the revenue associated therewith to the Municipality
within whose electric service area the leased dark fiber is located. Platte River has retained
revenue from leases of dark fiber within the Long-Haul to cover its operating expenses.
Fiber Management Agreement
Page 5
As requested by a Municipality, Platte River may perform the following tasks on behalf of the
Municipalities:
a. Negotiate and execute leases, or extensions of current leases, of Excess Fiber located
within its Local Loop with telecommunications providers and other entities. The terms
and conditions set forth in such leases shall be acceptable to the requesting
Municipality. Local Loop lease rates shall be determined independently by the
requesting Municipality. At any time, a Municipality may choose to assume
responsibility for leasing its own fiber within its Local Loop; and
b. Pay the net revenues from Local Loop leases (gross revenues less administrative
expenses deducted in accordance with Section 6 of this Agreement) quarterly to the
Municipality within whose electric service area the leased Excess Fiber is located; and
c. In consultation with, and consistent with the policy direction given by the Executive
Committee, negotiate and execute leases, or extensions of current leases, of Excess
Fiber within the Long-Haul with telecommunications providers and other entities. To
the extent possible the terms and conditions set forth in such leases shall be consistent
with leases of fiber located within the Local Loops, and shall be acceptable to the
Executive Committee. Long-Haul lease rates shall be determined independently by
Platte River; and
d. So long as Platte River retains ownership of the Excess Fiber within the Long-Haul,
net revenues (gross revenues less administrative expenses deducted in accordance
with Section 6 of this Agreement) from Long-Haul Leases shall be maintained in an
account to be managed by Platte River for the benefit of the Municipalities (the “Long-
Haul Fiber Account”). The Long-Haul Fiber Account shall be used by Platte River, in a
manner consistent with the policy direction provided by the Executive Committee, to
pay for expenses associated with the Long-Haul which are not covered in the Fiber
Optic Network Accounting Policy, including, but not limited to easement acquisition
and technology upgrades to, or expansion of, the Long-Haul. Expenses shall not
exceed the balance in the account. In the event that ownership of the Excess Fiber
within the Long-Haul is transferred to the Municipalities, funds remaining in the Long-
Haul Fiber Account shall be transferred with such ownership in the same proportion
(i.e., if ownership is transferred to each Municipality equally, the account balance shall
be distributed equally); and
e. Perform related fiber leasing tasks at the request of a Municipality including, but not
limited to, customer management and billing, customer notices, and response to
customer questions.
10. Additional Tasks.
In addition to the leasing of Excess Fiber tasks set forth in Section 9 above, Platte River will
perform the following tasks within the Fiber Optic Network upon request of a Municipality:
a. Fiber optic design
(i.) Design fiber circuits that meet the customer’s needs
(ii.) Provide quotes for proposed fiber work
b. Fiber optic splicing
Fiber Management Agreement
Page 6
(i.) Build splice diagrams for accepted work
(ii.) Fiber work coordination
(iii.) Customer notifications
(iv.) Equipment maintenance and calibration
(v.) Traffic control
(vi.) Document completed work
c. Fiber optic locating of laterals
d. Fiber optic database & documentation maintenance
e. Fiber optic system maintenance, troubleshooting, and repair
(i.) Responding to fiber cuts
(ii.) Replacing damaged vaults
(iii.) Troubleshooting fiber performance issues
(iv.) Replacing damaged patch panels
(v.) Rebuilding splice cases
f. Coordinating capital improvements
(i.) Procurement
(ii.) Project management
Payment for the above tasks shall be made by the requesting Municipality upon billing by Platte
River, which billing shall not occur more frequently than monthly and shall identify the tasks
performed during the billing period. Platte River will bill the requesting Municipality for labor at the
current hourly labor rate and benefits for the Platte River staff performing the work. Platte River
will bill the requesting Municipality for equipment use and the actual costs of any contracted labor
or parts used in work performed under this Agreement.
Alternatively, each Municipality may perform such work with respect to its Local Loop and other
related portions of the Fiber Optic Network through its own forces or a qualified contractor, subject
to coordination by Platte River in accordance with Section 5 above and the System-wide Fiber
Maintenance Protocol.
11. Confidentiality.
If a party to this Agreement provides confidential information to another party which is identified
as such, the receiving party shall, to the extent authorized by law, protect the confidential
information from disclosure to third parties with the same degree of care afforded its own
confidential and proprietary information. Neither party shall, however, be required to hold
confidential any information which becomes publicly available other than through the recipient,
which is required to be disclosed by a governmental or judicial order, or by statute, is
independently developed by the receiving party, or which becomes available to the receiving party
without known restrictions from a third party. Documents and other materials supplied to a party
to this Agreement may potentially become public records subject to inspection by outside parties
pursuant to the Colorado Open Records Act, C.R.S. § 24-72-200.1, et seq., as amended.
12. Termination.
Fiber Management Agreement
Page 7
This Agreement shall terminate between Platte River and a Municipality when either party no
longer uses its fiber located within the existing Fiber Cable for a period of twelve (12) consecutive
months including any third-party leases. After termination no party shall reuse fiber located within
the existing Fiber Cable until such party has provided written acknowledgement that such reuse
is subject to the terms of this Agreement. Upon receipt of the notice required under Section 3,
the Municipality shall be responsible for the actual costs, if any, associated with reconfiguration
of the Local Loop, which costs may include disconnecting any laterals that are no longer
necessary. Alternatively, a Municipality may request that Platte River vacate the existing Fiber
Cable and, if Platte River agrees to relocate, the Municipality shall build a new fiber route
according to Platte River’s specifications at its cost for the Platte River Fiber (notwithstanding
anything to the contrary in the Fiber Optic Network Accounting Policy). The parties may negotiate
the transfer of title of unused or vacated fiber, which may include transfer of title in lieu of costs,
if any, associated with reconfiguration. If this Agreement is terminated by one Municipality as set
forth herein, Platte River shall have a continuing obligation to provide services under this
Agreement to the other Municipalities.
13. Notices.
All notices, requests, demands, and other communications under this Agreement shall be in
writing and duly given upon delivery, if delivered personally, or upon depositing in the U.S. Mail,
postage prepaid and certified, return receipt requested, and addressed to the proper party as
follows:
City of Fort Collins City of Longmont Platte River Power Authority
300 LaPorte Avenue Civic Center Complex 2000 E. Horsetooth Road
Fort Collins, CO 80522 350 Kimbark Fort Collins, CO 80525
Attn: City Manager Longmont, CO 80501 Attn: General Manager/CEO
Attn: City Attorney
Attn: LPC General Manager
Town of Estes Park City of Loveland
170 MacGregor Ave 500 E 3rd Street
Estes Park, CO 80517 Loveland, CO 80537
Attn: Utilities Director Attn: ___ _____
14. Assignment.
Neither the Municipalities nor Platte River shall assign or transfer any interest in this Agreement,
the Excess Fiber or the Fiber Optic Network without the prior written consent of the other parties.
This provision shall survive the termination of this Agreement.
15. Provisions Construed as to Fair Meaning.
The provisions of this Agreement shall be construed as to their fair meaning and not for or against
any party based upon attribution of the language in question.
16. Headings for Convenience.
All headings, captions and titles are for convenience and reference only and of no meaning in the
interpretation of effect of this Agreement.
Fiber Management Agreement
Page 8
17. Compliance with Ordinances and Regulations.
Platte River and the Municipalities shall perform their obligations under this Agreement in strict
compliance with all federal, state and Municipal laws, rules, statutes, charter provisions,
ordinances, and regulations applicable to their performance under this Agreement.
18. No Implied Representations.
No representations, agreements, covenants, warranties, or certifications, express or implied, shall
exist as between the parties, except as specifically set forth in this Agreement.
19. No Third-Party Beneficiaries.
None of the terms or conditions in this Agreement shall give or allow any claim, benefit, or right
of action by any third person not a party hereto. Any person other than the Municipalities or Plate
River receiving services or benefits under this Agreement shall be only an incidental beneficiary.
20. Indemnification.
A. To the extent allowed by law, in connection with the obligations of each Municipality under
this Agreement, each Municipality agrees to indemnify and hold harmless Platte River,
and its officers and employees, against all liabilities, claims and demands which arise from
any negligent act or omission of the Municipality’s officers or employees which occurred
during the performance of their duties and within the scope of their employment. In
addition, to the extent allowed by law each Municipality agrees to indemnify Platte River,
and its officers and employees, from all costs and expenses related to defending such
liabilities, claims and demands, including but not limited to, litigation costs and reasonable
attorney’s fees, whether any such liabilities, claims and demands are groundless,
frivolous, false or fraudulent. However, each Municipality and Platte River acknowledge
and agree that all such liabilities, claims and demands shall be subject to any notice
requirements, defenses, immunities and limitations to liability that the Municipality and its
officers and employees may have under the Colorado Governmental Immunity Act (C.R.S.
§24-10-101, et seq.) and under any other law.
B. To the extent allowed by law, in connection with the obligations of Platte River this
Agreement, Platte River agrees to indemnify and hold harmless the Municipalities, and
their officers and employees, against all liabilities, claims and demands which arise from
any negligent act or omission of Platte River’s officers or employees which occurred during
the performance of their duties and within the scope of their employment. In addition, to
the extent allowed by law Platte River agrees to indemnify the Municipalities, and their
officers and employees, from all costs and expenses related to defending such liabilities,
claims and demands, including but not limited to, litigation costs and reasonable attorney’s
fees, whether any such liabilities, claims and demands are groundless, frivolous, false or
fraudulent. However, Platte River and each Municipality acknowledge and agree that all
such liabilities, claims and demands shall be subject to any notice requirements, defenses,
immunities and limitations to liability that Platte River and its officers and employees may
have under the Colorado Governmental Immunity Act (C.R.S. §24-10-101, et seq.) and
under any other law.
Fiber Management Agreement
Page 9
C. In no event will any party be liable to another party for consequential, incidental, or punitive
damages.
21. Expenditure Not to Exceed Appropriation.
The financial obligations of the parties hereto under this Agreement are contingent upon the
annual appropriation, budgeting and availability of specific funds to discharge those obligations.
Nothing in this Agreement shall create a multiple-fiscal year debt or other financial obligation or
fiscal obligation of any kind payable in a fiscal year beyond the fiscal year for which funds are so
appropriated for the payment of current expenditures.
22. Integrated Agreement and Amendments.
This Agreement is an integration of the entire understanding of the parties with respect to the
matters set forth herein. The parties shall only amend this Agreement in writing with the proper
official signatures attached hereto.
23. Waiver.
No waiver of any breach or default under this Agreement shall be a waiver of any other or
subsequent breach or default.
24. Severability.
Invalidation of any specific provisions of this Agreement shall not affect the validity of any other
provisions of this Agreement.
25. Governing Law and Enforceability.
This Agreement shall be governed and construed in accordance with the binding laws of the State
of Colorado, venue shall be in the County of Larimer, State of Colorado. In addition, the parties
hereto recognize that there are legal constraints imposed upon the Municipalities and Platte River
by constitutions, statutes, rules and regulations of the State of Colorado, and of the United States,
and imposed upon them by Municipal Charter and Municipal Code, and that, subject to such
constraints, the parties intend to carry out the terms and conditions of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, in no event shall either of
the parties hereto exercise any power or take any action which shall be prohibited by applicable
law. Whenever possible, each provision of this Agreement shall be interpreted in such a manner
to be effective and valid under applicable law.
26. Binding Effect.
This Agreement shall be binding upon the parties and their respective successors and assigns.
27. Counterparts.
This Agreement may be executed by the parties hereto in counterparts.
In Witness Whereof, the parties execute this Agreement as of the dates set forth in the signature
blocks below.
Fiber Management Agreement
Page 10
PLATTE RIVER POWER AUTHORITY ATTEST:
By: By:
General Manager/CEO
Date:_____________________
Secretary
APPROVED AS TO FORM:
By:
Deputy General Counsel
TOWN OF ESTES PARK, COLORADO ATTEST:
By: By:
Mayor
Date:________________
Town Clerk
CITY OF FORT COLLINS, COLORADO ATTEST:
By: By:
City Manager
Date:_________________
City Clerk
APPROVED AS TO FORM:
By:
Deputy City Attorney
CITY OF LOVELAND, COLORADO ATTEST:
By: By:
City Manager
Date:_________________
City Clerk
APPROVED AS TO FORM:
By:
Assistant City Attorney
CITY OF LONGMONT, COLORADO ATTEST:
By: By:
Mayor
Date:________________
City Clerk
Fiber Management Agreement
Page 11
APPROVED AS TO FORM AND SUBSTANCE:
Director of Longmont Power & Communications
APPROVED AS TO FORM:
Assistant City Attorney
PROOFREAD:
EXHIBIT A
System-wide Fiber Maintenance Protocol
Initial Version
Approved by Technical Committee November 7, 2018
1 Purpose
This protocol governs maintenance activities that are performed on the fiber system to ensure
work is planned, coordinated, scheduled, and performed in a manner that does not negatively
affect the underlying critical services that rely on the fiber system.
2 Scope
Fiber work is defined as a planned fiber cut or planned fiber disconnect.
What: This protocol applies to fiber work that is performed on infrastructure with fibers owned by
both Platte River and a third party. This protocol does not apply to work being performed in meet-
me vaults or on lateral cables.
Who: This protocol applies to all fiber optic cable owners and their employees and contractors
that oversee or perform work on infrastructure with fibers owned by both Platte River and a third
party.
3 Fiber Maintenance Protocol
3.1 Central system-wide Local Loop and long-haul fiber work coordination
The fiber system extends from north to south between Fort Collins and Longmont and from
east to west between Loveland and Estes Park. The fiber system enables the monitoring,
control, and teleprotection of the bulk electric system in and among Estes Park, Fort Collins,
Longmont, and Loveland in addition to supporting local municipal services and commercial
communication connectivity.
Many of the fiber strands located within each cable are interconnected with other cables to
create circuits that extend across the entire fiber system. Work that is performed anywhere
on the fiber system can negatively affect underlying communication rings that extend
beyond the electric service area where the work is being performed. Work that is not
coordinated may unintentionally open a ring and interrupt critical communication. Therefore,
it is essential that all work performed on the fiber system be coordinated, reviewed,
assessed for its effect on system-wide communications, and scheduled with all parties to
reduce the risk to critical communications.
These protocols must be followed to better understand and manage risk to fiber optic
dependent communication services.
3.1.1 Fiber work assessments
Fiber optic communication services can be divided into two broad categories: the logical
ring and the physical ring. The physical ring includes the fiber optic vault, splice enclosure,
splice trays, fiber cable, buffer tubes and fiber optic strand. The logical ring includes the
equipment and logical circuits used to light up and transfer data over the physical fiber
optic strands.
Some logical and physical rings are protected from a single equipment failure or a single
fiber cut. These systems with multiple equipment failures and/or fiber cuts will open both
rings and affect communication services. The logical ring is dependent on the physical
ring. A single equipment failure in conjunction with a single fiber cut can open the logical
ring in two locations resulting in the loss of communication services.
An assessment must be performed by affected municipalities and Platte River to
determine if the proposed work may disrupt any communications services.
Physical ring – Assess the proposed fiber work:
1. Determine how the fiber work may impact services
2. Verify the integrity of the existing physical ring
3. Verify that a physical ring will not be opened by two or more planned cuts or
disconnects being performed on the fiber system at the same time
Logical ring – Assess the proposed fiber work and proposed equipment work to evaluate
if the fiber work and equipment work will conflict such that the logical network ring will not
be opened by one or more planned cuts or disconnects being performed simultaneously
on either physical or logical ring.
3.1.1.1 Bulk Electric System (BES) assessment
The fiber system is critical to the operation of the bulk electric transmission system. The
fiber system supports SCADA and relay protection.
An assessment is required to evaluate if the proposed fiber optic work will have an
adverse effect on the bulk electric system.
3.1.1.2 System-wide assessment on customer dark fiber circuits
Multiple entities in addition to the municipalities and Platte River rely on the reliable
operation of the fiber system.
An assessment is required to evaluate if the proposed fiber optic work will have an
adverse effect on customer connectivity. Customers must be notified if it is determined
that their circuit will be affected by the fiber work. The work must be coordinated with the
affected fiber customers.
3.1.1.3 Municipal Assessment
An assessment is required to evaluate if the proposed fiber optic work will have an
adverse effect on municipal connectivity.
3.1.2 Work Approval
Entities that are performing non-emergency work and plan on cutting or disconnecting
fiber strands on the fiber system must notify Platte River’s Power System Operations,
according to the Platte River Outage Coordination Procedure, and affected municipalities
of proposed scheduled work and receive approval from all parties. A response for non-
Platte River fiber cuts or disconnects must be given within four (4) business days or
approval is assumed. Platte River fiber cuts and disconnects must be handled according
to the Platte River Outage Coordination Procedure.
Power System Operators and the municipalities have the authority to either approve or
delay scheduled fiber work.
The municipalities and Platte River can designate time periods when the risk is too high
to perform any fiber optic work. Entities will be required to reschedule the non-emergency
fiber optic work.
3.1.3 System-wide work scheduling
Fiber work must be scheduled and coordinated so that it does not conflict with other work
that is being performed on the fiber system so that the risk of a communication interruption
is reduced.
4 Fiber System Standards [to be reviewed by the Technical Committee]
The fiber system is comprised of many interconnected parts that must all work together. Fiber
optic strands are delicate and difficult to work with. Fiber technicians depend on a consistent,
clean, and orderly fiber implementation to perform their work. Uncommon materials and
equipment, incorrect labels, or untidy workmanship can make performing fiber work difficult and
presents greater risk to the fiber system.
The installation of common materials allows for consistency amongst different inventories and the
ability to share parts in a time of need. Consistent equipment and system configurations allows
technicians to be better prepared when providing mutual aid and responding to outages or
assisting with large jobs.
The proper maintenance of the fiber system will increase its longevity by protecting each fiber
system component. A properly maintained fiber system results in a reduction in component
replacements and lower costs over the long-term. Splice cases that have not been properly
maintained become difficult to work on. Eventually the splice will be rebuilt which results in a
reduction in fiber cable length. The issue then cascades as it eventually leads to a cable
replacement. The practice of not scoping and cleaning patch panel connectors and fiber jumpers
causes damaged to the connector which reduces light carrying capacity and leads to a patch
panel replacement. This too can cascade into a cable replacement.
The following standards must be met when installing or maintaining the fiber system:
• Scope & clean connectors
• Use standardized equipment
• Use ultra-low loss fiber
• Accept a maximum of .03 dB loss for splices
• Components must be labeled
• Hand hole layout
• Splice case layout
• Fiber testing and acceptance requirements
• Limit the number of splice cases in a hand-hole
• Maintain hand-holes and splice cases in a consistent, orderly, and clean state
5 Meet-me Vaults
Meet-me vaults are preferred means of construction to allow a connection of customer laterals to
the Local Loop without compromising or increasing risk to the Local Loop fiber cable.
The Local Loop is only accessed once to install the fiber strap which is a short fiber optic cable
that connects two splice cases. From that point on, all customer laterals and all work associated
with connecting customer laterals happen within the meet-me vault. This provides many benefits
including:
• Reduction in risk to the Local Loop fiber cable because customer work is not performed
directly on the Local Loop
• Fiber strands that contain critical traffic can remain protected in the Local Loop vault
• Outages resulting from work in the meet-me vault are localized to the customers in that
vault. This allows for:
o Easier coordination with affected customers
o Fewer customer notifications
o Increased confidence for the fiber technician to know which customers will be
affected
• It is much easier to rebuild a meet-me vault
• An accident, like dropping a vault lid onto the fiber, affect a subset of the customers
• The Local Loop is only accessed once to install the meet-me vault. This helps ensure the
integrity of the Local Loop is not compromised over time through continuous access.
• Initial splicing and re-splicing reduces fiber strand length. This is confined to the meet-me
vault.
Meet-me vaults should be utilized whenever possible.
Meet-me
Vault
Backbone
Vault
Backbone
Fiber
Cable
Fiber
Strap
Laterals
Fiber
Cables
6 System-wide fiber optic documentation [to be determined by the Technical
Committee].
EXHIBIT B
Fiber Optic Accounting Policy
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ORDINANCE NO.172, 2018
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING A FRANCHISE AND LICENSE AGREEMENT
BETWEEN THE CITY OF FORT COLLINS AND PLATTE RIVER
POWER AUTHORITY FOR A FIBER OPTIC NETWORK
WHEREAS, the City of Fort Collins (hereinafter referred to as "the City") currently owns
and operates an electric utility that acquires and distributes electricity to utility customers
(hereinafter referred to as "the Electric Utility"); and
WHEREAS, Platte River Power Authority (hereinafter referred to as "Platte River") is a
separate governmental entity created under State law by intergovernmental agreement between
the City, the cities of Longmont and Loveland, and the Town of Estes Park (hereinafter referred
to collectively as "the Four Municipalities"), pursuant to Colorado Revised Statutes (C.R.S.)
Section 29-1-204; and
WHEREAS, Platte River was created by the Four Municipalities for the purposes of
generation and transmission of electricity to be sold to the Four Municipalities on a wholesale
basis; and
WHEREAS, in order to upgrade its operations in the generation and transmission of
electricity, in 1998, Platte River embarked on a project to link its electric substations in the City
with its substations in the cities of Loveland and Longmont by a fiber-optic communication
system (the “Fiber Optic Network”); and
WHEREAS, in constructing its Fiber Optic Network, Platte River installed underground
and aboveground a fiber-optic cable (hereinafter referred to as the “Cable") that has been located,
in part, within the City's boundaries since 1999; and
WHEREAS, the Cable contains approximately 144 fiber-optic strands, which includes
one buffer tube of 12 fiber-optic strands used in its operations related to the generation and
transmission of wholesale electricity (the “Platte River Fiber”) and the remaining strands in 11
buffer tubes that are dedicated to use by the Four Municipalities (the “Excess Fiber”); and
WHEREAS, the Fiber Optic Network, including the Platte River Fiber and the Excess
Fiber, includes fiber configured and serving Platte River facilities within the City (a “Local
Loop”), and fiber configured and connecting the Four Municipalities (the “Long-Haul Fiber”);
and
WHEREAS, to have the right to maintain and operate the Fiber Optic Network and any
extensions within (1) the City streets and rights-of-way under Section I, Article XI of the City’s
Charter; and (2) certain City utility facilities (“Electric Utility Facilities”), Platte River needed a
franchise and license from the City; and
WHEREAS, on December 15, 1998, the Council of the City of Fort Collins adopted
Ordinance No. 229, 1998 pursuant to which the City Council approved a Fiber Franchise
-2-
Agreement and License Agreement dated December 29, 1998 (the “1998 Fiber Franchise
Agreement”), granting to Platte River, on the terms and conditions set forth therein, a franchise
to use the City’s streets and a license to use Electric Utility facilities in return for Platte River’s
delivery of certain lease revenues from the Excess Fiber owned by Platte River ; and
WHEREAS, the 1998 Fiber Franchise Agreement is expiring, according to its terms, on
December 31, 2018; and
WHEREAS, Platte River and the Four Municipalities have determined to transfer the
Excess Fiber in the Local Loops to the respective cities where the Local Loops reside, with Platte
River to retain ownership of the Platte River Fiber and Long-Haul Fiber; and
WHEREAS, on September 27, 2018, Platte River’s Board of Directors adopted
Resolution 15-18 authorizing the General Manager to transfer to the City its Local Loop on
execution of an Intergovernmental Agreement for Fiber Management; and
WHEREAS, contemporaneous with this Ordinance, the Fort Collins City Council
adopted Resolution 2018-116 pursuant to which the City Council approves an Intergovernmental
Agreement for Fiber Management (“Fiber Management IGA”) between Platte River and the Four
Municipalities; and
WHEREAS, the City’s grant to Platte River of the rights to use City property set forth in
a new twenty (20) year Franchise and License Agreement without the payment of cash franchise
fees serves a bona fide public purpose because:
(1) it promotes the health, safety and general welfare and benefits a significant
segment of the citizens of Fort Collins by allowing the delivery electricity from
Platte River to the City to supply its electric utility enterprise;
(2) it supports the City Councils goals and adopted policies, specifically Economic
Health Objective 3.5 of the City 2018 Strategic Plan by maintaining utility
systems, services, infrastructure and predictable rates;
(3) the financial support afforded to Platte River as a result of eliminating payment of
a cash franchise fees eliminates an increased cost of wholesale electricity that
would otherwise be borne by City electric utility customers;
(4) it does not result in any direct financial benefit to Platte River or any other private
person or entity and any such benefit is only an incidental consequence and is not
substantial relative to the public purpose of obtaining wholesale electricity at a
reasonable cost for delivery to electric utility customers (who would otherwise
bear such costs); and
(5) it will not interfere with current City projects or work programs, hinder workload
schedules or divert resources needed for primary City functions or
responsibilities; and
-3-
WHEREAS, the collocation and cooperative management of the Platte River Fiber and
Long-Haul Fiber with the City’s Local Loop under the proposed Franchise and License
Agreement conserves available City rights-of-way, reduces the wholesale cost of electricity
required by the City’s Electric Utility and sold to its customers, and reduces the financial burden
of providing the management and coordination services with respect to the Fiber Optic Network
to be provided by Platte River for the benefit of the City and the City’s Electric Utility provide
an in-kind benefit to the City in lieu of cash franchise fees; and
WHEREAS, in consideration of the foregoing benefits accruing to the City and its
Electric Utility customers, the City Council desires to grant to Platte River the rights set forth in
the new Franchise and License Agreement attached hereto as Exhibit “A” (the “2018 Franchise
and License Agreement”); and
WHEREAS, Charter Article XI, Section 1 requires notice of the Council’s public hearing
on the grant of franchise be published by the franchise applicant in a local newspaper of general
circulation once a week for three successive weeks immediately before the date of the hearing;
and
WHEREAS, Platte River has satisfied this notice requirement by having the notice of
public hearing attached as Exhibit “B” and incorporated by reference published in the Fort
Collins Coloradoan each day beginning on November 14, 2018, and ending on November 21,
2018; and
WHEREAS, the City Council hereby finds that the 2018 Franchise and License
Agreement is necessary for the public’s health, safety and welfare and is in the best interests of
the City and its residents.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF FORT COLLINS, COLORADO, as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That the City Council hereby approves the 2018 Franchise and License
Agreement and the non-exclusive franchise and license granted in it.
Section 3. That the Mayor is hereby authorized to enter into the 2018 Franchise and
License Agreement, in substantially the form attached hereto as Exhibit “A”, together with such
modifications in form or substance as the City Manager, in consultation with the City Attorney,
determines to be necessary and appropriate to protect the interests of the City or to effectuate the
purposes of this Ordinance.
Section 4. That if any portion of this Ordinance is held to be unconstitutional or
invalid for any reason, such decision shall not affect the constitutionality or validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would have
-4-
passed this Ordinance and each part hereof irrespective of the fact that any one part may be
declared unconstitutional or invalid.
Introduced, considered favorably on first reading, and ordered published this 4th day of
December, A.D. 2018, and to be presented for final passage on the 18th day of December, A.D.
2018.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
Passed and adopted on final reading on this 18th day of December, A.D. 2018.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
1
FRANCHISE AND LICENSE AGREEMENT
THIS AGREEMENT is made and entered into as of December 29, 2018 between
THE CITY OF FORT COLLINS, COLORADO, a municipal corporation (hereinafter referred to
as “the City”), and the PLATTE RIVER POWER AUTHORITY, a public corporation and political
subdivision of the State of Colorado (hereinafter referred to as “Platte River”).
WHEREAS, the City is a home rule municipality organized and existing under the
laws of the State of Colorado; and
WHEREAS, the City currently owns and operates an electric utility that acquires
and distributes electricity to retail customers (hereinafter referred to as the “Electric Utility”); and
WHEREAS, Platte River is a separate governmental entity created under State law
by intergovernmental agreement between the City, the cities of Longmont and Loveland, and the
Town of Estes Park (hereinafter referred to individually as a “Municipality” and collectively as
“the Owner Municipalities” or “Municipalities”); and
WHEREAS, Platte River was created by the Owner Municipalities for the
purposes of generation and transmission of electricity to be sold to the Owner Municipalities on a
wholesale basis; and
WHEREAS, to ensure high quality, reliable communications critical to the real-
time operation of its electric system, Platte River completed a project of linking its electrical
substations in the City together with its substations in the cities of Loveland, Longmont and Estes
Park by a fiber-optic system (the “Fiber Optic Network”); and
WHEREAS, the Fiber Optic Network constructed by Platte River includes
underground and aboveground a fiber-optic cable (hereinafter referred to as “the Cable Bundle”)
located, in part, within the City’s boundaries; and
WHEREAS, the Cable Bundle generally contains twelve (12) fiber-optic strands
in 1 buffer tube, which strands contain a bandwidth capacity sufficient for Platte River’s needs to
support its operations related to the generation and transmission of electricity at wholesale (the
“Platte River Fiber”); and
WHEREAS, the Fiber Optic Network includes more fiber than the Platte River
Fiber required for Platte River’s purposes (“Excess Fiber”); and
WHEREAS, the Fiber Optic Network, including the Platte River Fiber and the
Excess Fiber, includes fiber configured and serving Platte River facilities within each of the
Municipalities (a “Local Loop”), and fiber configured and connecting the Municipalities (the
“Long-Haul Fiber”); and
EXHIBIT A
2
WHEREAS, to (1) have the right to maintain and operate the Platte River Fiber
and any Extensions (as hereinafter defined) within the City streets and rights-of-way under Section
I, Article XI of the City’s Charter; (2) locate and maintain the Platte River Fiber, and any
Extensions, in the Electric Utility facilities; and (3) use certain electric City utility facilities
(“Electric Utility Facilities”), Platte River needed a franchise and license from the City; and
WHEREAS, on December 15, 1998, the Council of the City of Fort Collins
adopted Ordinance No. 229, 1998 pursuant to which the City Council approved a Fiber Franchise
Agreement dated December 29, 1998 (the “1998 Fiber Franchise Agreement”), granting to Platte
River, on the terms and conditions set forth therein, a franchise to use the City’s streets and a
license to use Electric Utility facilities; and
WHEREAS, on October 22, 1998, Platte River’s Board of Directors adopted
Resolution 17-98 pursuant to which the Board authorized Platte River to enter into the 1998
Franchise Agreement; and; and
WHEREAS, the 1998 Franchise Agreement is expiring, according to its terms, on
December 28, 2018; and
WHEREAS, Platte River and the Owner Municipalities have determined to
transfer the Local Loops to the respective Owner Municipalities, retaining ownership of the Platte
River Fiber and the Long-Haul Fiber; and
WHEREAS, on September 27, 2018, Platte River’s Board of Directors adopted
Resolution 15-18 authorizing the General Manager to transfer to the City its Local Loop on
execution of an Intergovernmental Agreement for Fiber Management; and
WHEREAS, on ________________, ___, the Fort Collins City Council adopted
Resolution 2018-____ pursuant to which the City Council approved an Intergovernmental
Agreement for Fiber Management (“Fiber Management IGA”); and
WHEREAS, The City’s grant to Platte River of the rights to use City property set
forth in this Franchise Agreement without the payment of cash franchise fees serves a bona fide
public purpose because (1) it promotes the health, safety and general welfare and benefits a
significant segment of the citizens of Fort Collins by allowing the delivery of electricity from Platte
River to the City to supply its electric utility enterprise; (2) it supports the City Councils goals and
adopted policies, specifically Economic Health Objective 3.5 of the City 2018 Strategic Plan
regarding maintenance of utility systems, services, infrastructure and predictable rates; (3) the
financial support afforded to Platte River as a result of eliminating payment of cash franchise fees
eliminates the increased cost of electricity that would otherwise be borne by City electric utility
customers; (4) it does not result in any direct financial benefit to Platte River or any other private
person or entity and any such benefit is only an incidental consequence and is not substantial
relative to the public purpose of obtaining wholesale electricity at a reasonable cost for delivery to
electric utility customers (who would otherwise bear such costs); and (5) it will not interfere with
current City projects or work programs, hinder workload schedules or divert resources needed for
primary City functions or responsibilities; and
3
WHEREAS, the collocation and cooperative management of the Platte River Fiber
and Long-Haul Fiber with the City’s Local Loop under the Fiber Management IGA conserves
available City rights of way, reduces the wholesale cost of electricity required by the City’s Electric
Utility and sold to its customers, and reduces the financial burden of providing the management
and coordination services with respect to the Fiber Optic Network to be provided by Platte River
for the benefit of the City and the City’s Electric Utility provide an in-kind benefit to the City in
lieu of cash franchise fees; and
WHEREAS, in consideration of the foregoing benefits accruing to the City and its
Electric Utility customers, the City Council desires to grant to Platte River the rights set forth in
this Franchise Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged by the parties, the parties hereby agree as follows:
I. Definitions. Unless the context requires another meaning, the following terms, phrases,
words and acronyms when used in this Agreement shall have the meanings ascribed to them below:
A. Electric Utility facilities shall mean all of the Electric Utility's existing and hereinafter
constructed and acquired aboveground and underground facilities and infrastructure
directly used for the distribution of electricity at retail and that are located in the service
area, including, without limitation, all of the Electric Utility's poles, conduits and vaults.
B. Extensions shall mean any extension of the Platte River Fiber and Long-Haul Fiber that is
necessary and used to expand the delivery of wholesale electricity by Platte River to the
City’s Electric Utility.
C. FCC shall mean the Federal Communications Commission or any successor governmental
entity.
D. Fiber or fiber optics shall mean thin, transparent fibers of glass or plastic that are enclosed
by material of a lower index of refraction that use light to send data, high quality video and
sound throughout their length by internal reflections.
E. Person shall mean an individual, partnership, association, joint stock company, trust,
corporation, limited liability company, governmental entity or any other entity.
F. Service area shall mean the present municipal boundaries of the City and shall include any
future additions thereto by annexation or other legal means.
G. Street shall mean the surface of and the space above and below any public way, street, road,
highway, freeway, lane, path, alley, court, sidewalk, boulevard, parkway, drive, right of
way or any easement now or hereafter owned by the City, whether the City acquired it by
conveyance, dedication, adverse possession or eminent domain. However, the definition of
4
street shall not include any City-owned easement which by the terms of its grant does not
permit the use of the easement by Platte River.
II. Grant of Franchise. The City hereby grants to Platte River, as of the effective date of this
Agreement and subject to the terms and conditions of this Agreement, a non-exclusive franchise
which authorizes Platte River to locate and maintain the Platte River and Long-Haul Fiber, and
any Extensions, or replacements in, among, upon, across, above, over, under or in any manner
connected with any street within the City electric service area and for that purpose to erect, install,
construct, repair, replace, reconstruct, maintain, retain in, over, under, upon, across or along any
street and all extensions thereof or additions thereto, such wires, cables, conductors, ducts,
conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments and other related
property or equipment as deemed necessary or pertinent to Platte River's use of the Platte River
and Long-Haul Fiber and any Extensions, including poles if poles are otherwise permitted by this
Agreement. This franchise is, however, subject to the Fort Collins City Charter and Code and to
all other local ordinances, rules and regulations now in effect or that become law in the future,
provided that Platte River's rights and obligations hereunder are neither altered nor abrogated by
such future laws in any material respect, subject only to the provisions of Section IX below.
III. Grant of License. The City hereby grants to Platte River, as of the effective date of this
Agreement and subject to the terms and conditions of this Agreement, a nonexclusive license
which authorizes Platte River to locate, maintain and use the Platte River and Long-Haul Fiber
and Extensions or replacements in and on Electric Utility facilities. This license is, however,
subject to the Fort Collins City Charter and Code and all other local ordinances, rules and
regulations now in effect or that become law in the future, provided that Platte River's rights and
obligations hereunder are neither altered nor abrogated by such future laws in any material respect,
subject only to the provisions of Section IX below. In addition, nothing in this Agreement shall be
construed to require or obligate the City to construct any new Electric Utility facilities for Platte
River's use unless the City and Platte River agree under separate written agreement to such
construction.
IV. Right of the City to Issue Franchise and License. Platte River acknowledges and
accepts the legal right of the City to grant and issue the franchise and license as herein provided,
and Platte River agrees that it shall not now or at any time hereafter challenge this lawful right in
any way, in any City, State or Federal court or governmental agency.
V. Franchise and License Nonexclusive. This Agreement shall not be construed as any
limitation upon the right of the City to grant to any other person the rights, privileges or authorities
similar to the rights, privileges and authorities herein set forth, in the same or other streets, alleys
or other public ways or public places and in the Electric Utility facilities. The City specifically
reserves the right to grant at any time during the term of this Agreement or renewal thereof, if any,
such additional franchises and licenses as it deems appropriate upon such terms and conditions as
it deems appropriate.
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VI. Effective Date of Agreement. The effective date of this Agreement shall be December
29, 2018.
VII. Term of Agreement. The term of this Agreement, and of the grants of the franchise and
license hereunder, shall be for a period of approximately twenty (20) years commencing on the
effective date of this Agreement and expiring on December 31, 2038, unless sooner terminated as
provided in this Agreement.
VIII. Familiarity with Agreement. The City and Platte River hereby acknowledge that they
have participated equally in the negotiation and drafting of this Agreement and, accordingly, that
no Court construing this Agreement shall construe it more stringently against one party than
against the other.
IX. Police Power. In accepting the franchise and license granted under this Agreement, Platte
River acknowledges that its rights under this Agreement are subject to the police powers of the
City to adopt and enforce general ordinances necessary for the health, safety and welfare of the
public and it agrees to comply with all applicable general laws and ordinances enacted by the City
pursuant to such power.
X. Franchise and License Fees. In lieu of cash franchise and license fees, the following in-
kind benefits accruing to the City and the City’s Electric Utility as a result of the co-location and
cooperative management of the Platte River Fiber and Long-Haul Fiber with the City’s Local Loop
under the Fiber Management IGA shall constitute the franchise and license fees due under this
Agreement:
A. Conservation of available City rights of way, for City utilities and other City purposes;
B. Reduction of the wholesale cost of electricity required by the City’s Electric Utility and
sold to its customers, which would otherwise include the cost to Platte River of cash
franchise and license fees;
C. Reduction of the financial burden of providing management and coordination services with
respect to the Fiber Optic Network to be provided by Platte River under the Fiber
Management IGA for the benefit of the City and the City’s Electric Utility; and
D. Avoidance of the cost to physically separate the Platte River Fiber, Extensions and Long-
Haul Fiber from the Local Loop now owned by the City.
XI. Adequacy of Franchise and License Fees. The City and Platte River acknowledge and
agree that the benefits set forth in Article X above in lieu of cash franchise and license fees
constitute appropriate compensation to the City by Platte River for the fair value of Platte River's
right to use City streets and Electric Utility facilities as provided in this Agreement and for the
estimated future costs of the City to administer this Agreement. In the event that the benefits in
lieu of a cash franchise fee or the license fee to be paid by Platte River hereunder is prohibited by
any law or regulation, Platte River shall pay to the City an equivalent amount of what would have
been paid pursuant to this Agreement in the form of another legally permissible payment whether
it is characterized as rent, payment for the fair market value of the City's streets and/or the Electric
Utility facilities, or characterized in some other manner.
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XII. Use of Additional Electric Utility Facilities. Prior to Platte River locating any Extension
of the Platte River or Long-Haul Fiber in or on Electric Utility facilities other than those in
existence as of the effective date of this Agreement (“Additional Electric Utility Facilities”), Platte
River shall make written request to the City's Executive Director of Utility Services (hereinafter
referred to as "the Utilities Executive Director") describing what Additional Electric Utility
Facilities Platte River desires to use to operate its wholesale electric distribution system. The
Utilities Executive Director shall review Platte River's written request and advise Platte River
within twenty (20) working days of receiving the written request whether such Additional Electric
Utility Facilities can be so used by Platte River. Platte River shall only be entitled to locate,
maintain and use the any Extension of the Platte River or Long-Haul Fiber in and on those
Additional Electric Utility Facilities if all of the following criteria are satisfied as determined in
the sole discretion of the Utilities Executive Director:
A. There is space available in and/or on the Additional Electric Utility Facilities;
B. The Additional Electric Utility Facilities are not needed by the Electric Utility for its own
current or future operations, including telecommunications facilities and services;
C. There are no safety or engineering reasons why Platte River cannot use the Additional
Electric Utility Facilities;
D. Platte River's use of the Additional Electric Utility Facilities will not detrimentally interfere
with the Electric Utility's current or future operations, including telecommunication
facilities and services;
E. Any Platte River Fiber or Extensions shall be located on Additional Electric Utility
Facilities in manner that does not require Platte River access to secure areas of such
Facilities; and
F. Platte River’s use of any Additional Electric Utility Facilities is necessary to operate its
wholesale electric distribution system.
XIII. Construction in City Streets. When using City streets to construct and install any
Extensions and any related facilities or to operate, maintain, repair or replace the existing Platte
River and Long-Haul Fiber (all of which are referred to jointly as "the Improvements"), Platte
River shall comply, where applicable, with all of the following provisions:
A. The Improvements shall be installed underground in the streets, unless the Utilities
Executive Director authorizes, in writing and upon such reasonable terms and conditions
as the Utilities Executive Director, after consultation with the City Engineer and the City
Manager, may impose in his or her sole discretion, Platte River to install the Improvements
aboveground on the streets.
B. All construction and installation of the Improvements shall meet or exceed all technical
standards of the FCC and other applicable Federal, State and local laws and regulations as
7
they now exist or may hereafter be amended. In addition, such construction and installation
shall be performed in an orderly and workmanlike manner and must comply with the
National Electric Safety Code and good and accepted industry standards, as the foregoing
apply to the providing of telecommunications services. If there is any conflict between any
of these laws and standards, the stricter laws and standards shall be controlling.
C. No installation of any part of the Improvements shall be performed or conducted within
any of the paved or improved streets of the City unless plans thereof shall have been first
submitted to the City Engineer and a construction permit issued therefore and all permit
fees paid in advance, if such submittal and permit are required under the City Code with
respect to the paved or improved street in question.
D. Platte River, at its own cost and expense and in the manner approved by the City, shall
replace and restore all paving, sidewalks, driveways and improved surfaces of any street
disturbed by any construction and installation work of Platte River to as good a condition
as before the work was commenced. Failure of Platte River to so replace or restore such
paving, sidewalk, driveway or street surface within forty-eight (48) hours, weather
permitting, after notification by the City shall entitle the City to cause the restoration to be
made at Platte River's expense. Platte River shall fully reimburse the City for all its costs
incurred in performing such restoration work. Such amounts shall be paid to the City by
Platte River within thirty (30) days after Platte River receives an itemized invoice from the
City.
E. The City shall have the right to inspect all construction and installation work performed by
Platte River pursuant to this Agreement as it deems necessary to ensure compliance by
Platte River with all the requirements of this Agreement.
F. Whenever Platte River shall cause, or any person acting on its behalf shall cause, any injury
or damage to any private property by or because of the installation, maintenance, repair or
operation of the Improvements, such injury or damage shall be compensated for and
remedied by Platte River at its expense as required by law.
G. Upon receiving prior written notice from the City, at least fifteen (15) days prior notice to
protect, support, or temporarily disconnect the Cable Bundle or at least sixty (60) days
prior notice to relocate in the street or remove from the street the Cable Bundle, Platte River
shall, at its own expense, protect, support, temporarily disconnect or relocate in or remove
from the street implement the Improvements when required to do so by the City for reasons
of: traffic conditions; public safety; street, right-of-way or easement vacation; freeway or
street construction; change or establishment of streets grade; installation of sewers, drains
or water pipes; construction of any other type of City structure or improvement; or for any
reason related to the exercise of the City's police power. The cost of relocating
Improvements for reasons other than the foregoing shall be governed by the Fiber
Management IGA. If public funds are available to any person using vacated City streets,
8
rights-of-way or easements, for the purposes of bringing the cost of any of the foregoing,
such funds shall also be made available to Platte River, to the extent permitted by law.
H. Platte River shall, at the request of any person holding a building moving permit issued by
the City, temporarily raise or lower any of the Improvements located above ground to
permit the moving of such building, provided: (1) the expense of such temporary raising
or lowering of the Improvements is paid by said person, including, if required by Platte
River, by making such payment in advance; and (2) Platte River is given at least fifteen
(15) days prior notice to arrange for such temporary changes to any of the Improvements.
XIV. Installation, Maintenance and Repair of the Platte River Fiber and Extensions.
A. Whenever Platte River is authorized by Section XII. to install in any of the Additional
Electric Utility Facilities Platte River or Long-Haul Fiber or any Extensions, such
installation may be performed by Platte River or its contractor in conformance with the
Fiber Management IGA. If the City performs the installation, Platte River shall fully
reimburse the City for all its costs incurred in performing the installation according to the
Fiber Management IGA. Such amount shall be paid to the City by Platte River within thirty
(30) days after Platte River receives an itemized invoice from the City.
B. Whenever it is reasonably necessary to perform maintenance and/or repair work on the
Platte River or Long-Haul Fiber or on any Extensions that are located in Electric Utility
facilities, maintenance and/or repair work may be performed by Platte River or its
contractor in conformance with the Fiber Management IGA. If the City performs the
maintenance and/or repair work, Platte River shall fully reimburse the City for all its costs
incurred in performing the maintenance and/or repair work according to the Fiber
Management IGA. Such amount shall be paid to the City by Platte River within thirty (30)
days after Platte River receives an itemized invoice from the City.
XV. Insurance. Platte River shall furnish to the City and at all times during the term of this
Agreement maintain in full force and effect at Platte River's own cost and expense, a
comprehensive commercial general liability insurance policy in the amount of two million dollars
($2,000,000.00) with a company licensed to do business in Colorado, with a Best rating of "A-" or
better and in a form satisfactory to the City Attorney, indemnifying and defending the City, City
Council and all officers, boards, commissions, agents and employees thereof, from and against any
and all claims, demands, actions, suits and proceedings by any person whatsoever for loss or
damage, or personal injury, death or property damage, occasioned by the operations of Platte River
under this Agreement or alleged to so have been caused or occurred, with minimum liability limits
of two million dollars ($2,000,000.00) to any one person, any occurrence, and two million dollars
($2,000,000.00) to two or more persons in any one occurrence; and two million dollars
9
($2,000,000.00) for damage to property resulting from any one occurrence. Platte River may
satisfy the foregoing insurance requirement by through a combination of self-insurance in an
amount not to exceed one million dollars ($1,000,000) and an excess liability insurance policy
issued by a company meeting the requirements set forth above, all of which shall provide the scope
of coverage described above. The City shall be named as an additional insured with respect to this
policy. Platte River shall also provide and maintain workers' compensation insurance for its
employees as required by Colorado law. All insurance coverage required by this Section XV. shall
provide for at least thirty (30) days prior written notice to the City Clerk in the event of material
alterations or cancellations of any coverage afforded in the policies, before such alteration or
cancellation becomes effective. Platte River's maintenance of the insurance policies required shall
not be construed to excuse unfaithful performance by Platte River or to limit the liability of Platte
River to the coverage provided in the insurance policies, or otherwise to limit the City's recourse
to any other remedy available at law or in equity.
XVI. Indemnification.
A. In connection with the City's performance of its obligations under this Agreement, the City
agrees to the extent permitted by law to indemnify and hold harmless Platte River, and its
officers and employees, against all liabilities, claims and demands which arise from any
negligent act or omission of the City, or of its officers or employees, provided that such act
or omission by the City's officers or employees occurred during the performance of their
duties and within the scope of their employment. In addition, to the extent permitted by
law the City agrees to indemnify Platte River, and its officers and employees, from all costs
and expenses related to defending such liabilities, claims and demands, including but not
limited to, litigation costs and reasonable attorney's fees, whether or not any such liabilities,
claims and demands are groundless, frivolous, false or fraudulent. However, the City and
Platte River acknowledge and agree that all such liabilities, claims and demands shall be
subject to any notice requirements, defenses, immunities and limitations to liability that the
City and its officers and employees may have under the Colorado Governmental Immunity
Act (C.R.S. §24-10-101, et seq.) and under any other law.
B. In connection with Platte River's performance of its obligations under this Agreement,
Platte River agrees to the extent permitted by law to indemnify and hold harmless the City,
and its officers and employees, against all liabilities, claims and demands which arise from
any negligent act or omission of Platte River or of its officers or employees, provided that
such act or omission by Platte River's officers or employees occurred during the
performance of their of duties and within the scope of their employment. In addition, to the
extent permitted by law Platte River agrees to indemnify the City, and its officers and
employees, from all costs related to defending such liabilities, claims and demands,
including but not limited to, litigation costs, and reasonable attorney's fees, whether or not
such liabilities, claims and demands are groundless, frivolous, false or fraudulent.
However, Platte River and the City acknowledge and agree that all such liabilities, claims
and demands shall be subject to any notice requirements, defenses, immunities and
limitations to liability that Platte River and its officers and employees may have under the
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Colorado Governmental Immunity Act (C.R.S. §24-10-101, et seq.) and under any other
law.
XVII. Default and Termination. The City Council shall have the right to revoke and
terminate the franchise and/or the license granted under this Agreement to Platte River and all of
Platte River's rights and privileges under the franchise and/or the license in the event of Platte
River's default in any of the material terms and conditions of this Agreement. However, prior to
such revocation and termination, the City shall give Platte River written notice of the default. If
the default by Platte River continues for a period of forty-five (45) days following the receipt of
such written notice without written proof from Platte River that corrective action has been taken
or is being actively and expeditiously pursued in good faith by Platte River, the City Council may
consider revoking and terminating this Agreement. Written notice of such proposed revocation
and termination by the City Council shall be given to Platte River at least fifteen (15) days in
advance and Platte River must be given an opportunity to appear before the City Council to present
at a public hearing its arguments why this Agreement should not be so revoked and terminated.
Should the City Council determine, following the public hearing, that Platte River is in material
breach of this Agreement, City Council may declare by written resolution that this Agreement is
hereby terminated and therefore that the franchise and license granted hereunder are hereby
revoked. The City Council shall provide a reasonable additional opportunity for Platte River to
remedy the default and come into compliance with this Agreement so as to avoid revocation and
termination of this Agreement; provided that in no event shall Council be required to provide such
an additional opportunity of more than ninety (90) days, or where Platte River is required to
construct a new route for the fiber necessary to operation and delivery of electricity at wholesale,
not more than twelve (12) months.
XVIII. Removal of Platte River Fiber from Streets and Electric Utility Facilities. When
the term of this Agreement expires as provided in Section VII. above or if this Agreement is
terminated as provided in Section XVII. above, the City shall have the right, but not the obligation,
to remove: (a) any portion of the Fiber Optic System then owned by Platte River that is located on
or in Electric Utility Facilities; and (b) any portion of the Fiber Optic System then owned by Platte
River that is located in City streets. The City's reasonable costs in so removing portions of the
Fiber Optic System then owned by Platte River shall be fully reimbursed to the City by Platte
River. Such reimbursement shall be paid to the City by Platte River within thirty (30) days after
Platte River receives an itemized invoice from the City.
XIX. Option to Purchase.
A. When the term of this Agreement expires as provided in Section VII. above or if this
Agreement is terminated as provided in Section XVII. above, the City shall have the option to
purchase from Platte River all of the Platte River Fiber, Extensions and related property, facilities
and equipment then owned and used by Platte River or leased to third parties by Platte River that
are located in the City’s service area and which have not been previously transferred to the City.
In addition, the City shall have the option to purchase from Platte River all of Platte River's leases
and/or licenses to third parties of fiber in the Local Loop and Extensions located in the City’s
service area (hereinafter referred to as "the Leases").
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B. In order to avail itself of this option to purchase, the City shall give written notice to Platte
River of its desire to exercise its option, which notice shall be valid if given on or before the date
this Agreement shall so expire or terminate. On the exercise of this option by the City, Platte River
shall, as expeditiously as possible, transfer to the City possession and title to such Platte River
Fiber, Extensions, and the Leases. Such property shall be free from all liens and incumbrances not
agreed to be assumed by the City, unless the City has agreed to a reduction of the purchase price
to offset any incumbrances the City may agree to accept.
C. Platte River shall execute such bills of sale, warranty deeds, lease assignments and other
instruments of conveyance as shall be necessary for the transfer of the Platte River Fiber,
Extensions and the Leases.
D. The purchase price that the City shall pay Platte River shall be as follows: (1) for the Platte
River Fiber and Extensions, the City shall pay Platte River an amount determined by negotiation;
(2) for the Leases, the City shall pay Platte River one dollar ($1.00); and (3) for any other property,
facilities and equipment used by Platte River or leased by it to third parties related to the operation
of the Fiber-Optic Network (hereinafter referred to as "the Platte River Property"), the City shall
pay Platte River an amount determined by negotiation. In the event, however, that the City and
Platte River fail to agree on the purchase price to be paid for either or both the Platte River Fiber
and Extensions and the Platte River Property, the parties shall refer the issue of the value to a board
of qualified appraisers composed of one disinterested appraiser appointed by the City and one
disinterested appraiser appointed by Platte River. For purposes of this section, the date of valuation
of the Platte River Fiber and Extensions and the Platte River Property shall be the date when Platte
River transfers to the City possession and title to such assets and the Leases. If within sixty (60)
days after the appointment of the two appraisers, they cannot agree upon such value, they shall
appoint a third disinterested qualified appraiser, and the decision of any two of these appraisers
shall be binding. If, however, the two appraisers appointed by the City and Platte River cannot
agree to the appointment of a third appraiser, then the Chief Judge of the Eighth Judicial District
of Colorado shall be asked to appoint a third disinterested qualified appraiser. Absent any
misrepresentation or fraud, the decision of any two of these three appraisers shall then be binding.
If, however, no two of the appraisers can agree upon an appraised value, then the average of the
two closest appraisals of the three appraisers shall be the purchase price of the Fiber-Optic System
and the Leases. The expenses relating to the appraisal shall be borne equally by the City and Platte
River. In no event, however, shall the purchase price of the Platte River Fiber and Extensions and
the Platte River Property include any value for the franchise and license granted hereunder.
E. Failure of the City and Platte River to agree to a negotiated purchase price to be paid for the
Platte River Fiber and Extensions and/or the Platte River Property shall not delay the performance
required herein by Platte River, that is the requirement to expeditiously transfer such assets and
the Leases to the City promptly following the exercise of the City's option to purchase.
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F. In addition to the foregoing, if the City exercises its option to purchase hereunder, the City
agrees to consider, but is not obligated to, lease back to Platte River, upon such reasonable terms
and conditions as shall be negotiated by the City and Platte River, the Platte River Fiber and
Extensions.
XX. Assignment. This Agreement, and the franchise and license granted hereunder, shall not
be assigned by Platte River without the City Council's prior approval by resolution of such
assignment.
XXI. Waiver. No waiver by either of the parties hereto of any term and condition of this
Agreement shall be deemed to be or shall be construed as a waiver of any other term or condition,
nor shall a waiver of any breach of this Agreement be deemed to constitute a waiver of any
subsequent breach of the same provision of this Agreement.
XXII. Cumulative Provisions. The rights and remedies reserved to the City by this Agreement
are cumulative and shall be in addition to and not in derogation of any other rights or remedies
which the City may have with respect to the subject matter of this Agreement, and a waiver thereof
at any time shall have no effect on the enforcement of such rights or remedies at a future time.
XVIII. Notices. Other than billing invoices which may be sent by first class mail, whenever
written notice is required or permitted to be given under this Agreement by one party to the other,
it shall be given effect by hand delivery or by mailing the same by certified mail, return receipt
requested, to the party to whom given. Notices shall be addressed as follows:
If to the City to:
City Manager
300 West LaPorte Avenue
PO Box 580
Fort Collins, CO 80522
With a copy to:
Utilities Executive Director
222 West LaPorte Avenue
PO Box 580
Fort Collins, CO 80522
If to Platte River to:
General Manager
Platte River Power Authority
2000 East Horsetooth Road
Fort Collins, CO 80525
Either party hereto may at any time designate a different person or address for the purpose of
receiving notice by so informing the other party in writing. Notice by certified mail shall be
13
deemed effective upon actual receipt thereof or three (3) days after being deposited in the United
States mail, whichever first occurs.
XXIV. Books and Records. Platte River agrees that the City may review such of its books
and records during normal business hours and on a nondisruptive basis, as is reasonably necessary
to monitor Platte River's compliance with the terms hereof.
XXV. Force Majeure. Notwithstanding anything contained herein to the contrary, it is agreed
that in the event and to the extent that fire, flood, earthquake, natural catastrophe, explosion,
accident, war, illegality, act of God, or any other cause beyond the control of either of the parties
hereto, or strikes or labor troubles (whether or not in the power of the party affected to settle the
same) prevents or delays performance by either party to this Agreement, such party shall be
relieved of the consequences thereof without liability, so long as and to the extent that the
performance is prevented by such cause; provided, however, that such party shall exercise due
diligence in its efforts to resume performance within a reasonable period of time.
XXVI. Governing Law and Enforceability. This Agreement shall be construed in accordance
with the laws of the State of Colorado. In addition, the parties hereto recognize that there are legal
constraints imposed upon the City and Platte River by constitutions, statutes, rules and regulations
of the State of Colorado and of the United States and imposed upon them by the City Charter and
City Code, and that, subject to such constraints, the parties intend to carry out the terms and
conditions of this Agreement. Notwithstanding any other provision of this Agreement to the
contrary, in no event shall either of the parties hereto exercise any power or take any action which
shall be prohibited by applicable law. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner so as to be effective and valid under applicable law.
XXVII. Headings. Section headings in this Agreement are for the convenience of reference
only and shall in no way define, limit or prescribe the scope or intent of any provision of this
Agreement.
XXIII. No Third-Party Beneficiaries. This Agreement is made for the sole and exclusive
benefit of the City and Platte River and is not made for the benefit of any third party.
XXIX. Construction of Agreement. Words of the masculine gender shall include the feminine
and neuter gender; when the sentence so indicates, words of the neuter shall refer to any gender.
Words in the singular shall include the plural and vice versa. This Agreement shall be construed
according to its fair meaning as if prepared by both parties hereto and shall be deemed to be and
contain the entire understanding and Agreement between the parties hereto. There shall be deemed
to be no other terms, conditions, promises, understandings, statements or representations, express
or implied, concerning this Agreement unless set forth in writing and signed by both of the parties
hereto.
XXX. Time is of the Essence. Whenever this Agreement sets forth any time for any act to be
performed by either of the parties, such time shall be deemed to be of the essence under this
Agreement.
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XXXI. No Joint Venture. Nothing contained herein shall be deemed or construed by the
parties hereto nor by any third party as creating a relationship of principle and agent or a
partnership or joint venture between the parties hereto, it being agreed that none of the provisions
set forth herein or any of the acts of the parties herein shall be deemed to create a relationship
between the parties hereto other than the relationships of franchisor and franchisee, and licensor
and licensee.
XXXII. Severability. If any section, sentence, paragraph, term or provision of this Agreement
is determined to be illegal, invalid or unconstitutional, by any court of competent jurisdiction or
by any State or Federal regulatory authority having jurisdiction thereof, such determination shall
have no effect on the validity of any other section, sentence, paragraph, term or provision, all of
which shall remain in full force and effect for the term of this Agreement.
XXXIII. Attorney's Fees. In the event either of the parties hereto shall default in any of their
covenants or obligations contained herein so as to require the other party in this Agreement not in
default to commence legal or equitable action against the defaulting party, the defaulting party
expressly agrees to pay all of the non-defaulting party's reasonable expenses in said litigation,
including a reasonable sum for attorney's fees.
XXXIV. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
XXXV. Appropriation. Both the City and Platte River are governmental entities; therefore,
all direct and indirect financial obligations under this Agreement shall be subject to annual
appropriations pursuant to Article X, Section 20 of the Colorado Constitution and the parties’
respective charters and ordinances, and applicable law. This Agreement and the obligations of the
parties hereunder do not constitute a multi-year fiscal obligation and all financial obligations
hereunder are expressly contingent upon the parties' respective governing bodies budgeting and
appropriating the funds necessary to fulfill their respective obligations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the day and year first above written.
15
PLATTE RIVER POWER AUTHORITY,
a public corporation and political subdivision of
the state
ATTEST:
By: By:
General Manager/CEO Secretary
APPROVED AS TO FORM:
By:
Deputy General Counsel
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CITY OF FORT COLLINS, COLORADO, ATTEST:
a Colorado home rule municipal corporation
By: By:
Wade Troxell, Mayor City Clerk
APPROVED AS TO FORM:
By:
Senior Assistant City Attorney
Notice of Public Hearing on Proposed Grant of Non‐Exclusive Franchise by the City of Fort
Collins to the Platte River Power Authority for Collocation of Fiber Optic Network
The Fort Collins City Council will hold a public hearing at its regular meeting on December 4, 2018,
at 6:00 p.m., or as soon thereafter as the matter may come on for hearing, in the City Council
Chambers at the City Hall, 300 LaPorte Avenue, Fort Collins, Colorado, to consider the grant of a
franchise by the City of Fort Collins (City) to the Platte River Power Authority (Platte River)
authorizing Platte River to place, maintain, and operate its existing fiber optic cable within the
fiber optic network in City streets, rights‐of‐way and other City property to provide fiber optic
communications used to operate Platte River’s transmission and delivery, at wholesale, of
electricity to the City electric utility.
The proposed franchise is non‐exclusive and for a term of twenty (20) years beginning January 1,
2019 and ending December 31, 2038. In lieu of cash franchise and license fees, the proposed
Franchise and License Agreement identifies in‐kind benefits accruing to the City and the City’s
Electric Utility as a result of the collocation and cooperative management of the Platte River’s
existing fiber optic cable with the City’s fiber optic loop.
A copy of the proposed Franchise and License Agreement between the City and Platte River
describing the additional terms and conditions of this franchise are available on the City’s website
at [https://www.fcgov.com/publicnotices/].
Any interested person may attend this public hearing and present information and/or opinions
related to the proposed franchise agreement.
The City will make reasonable accommodations for access to City services, programs and
activities and will make special communication arrangements for persons with disabilities. Please
call (970)221‐6515 ((V/TDD: Dial 711 for Relay Colorado] for assistance.
Dated this 14th day of November, 2018.
City of Fort Collins, Colorado
By: Delynn Coldiron
Fort Collins City Clerk
Platte River Power Authority
By: Jason Frisbe
General Manager/CEO
EXHIBIT B