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DuVivier: Concerns that Xcel franchise agreement violates Boulder City Charter

August 19, 2020

Dear members of the Boulder City Council:

Although I am currently not a practicing attorney, I am a tenured Professor of Law at the University of Denver Sturm College of Law.  Before joining academia, I also served as an Assistant City Attorney for the City and County of Denver under Mayor Peña and Steve Kaplan.

From the perspective of someone who is familiar with the law and city charters, it appears to me that the proposed Franchise Agreement with Public Service Company of Colorado may have some serious flaws because certain provisions required by the City of Boulder Charter have not been included or followed.

These Charter provisions were put in place to protect the interests of Boulder citizens. So, ignoring them is not only illegal, but damages the citizens’ interests. 

The express language of Charter Sec. 125 appears to require that all Charter mandates that relate to franchises actually be included in the Franchise Agreement. Specifically, Charter Section 125 reads as follows:

Sec. 125. – Matters in charter not to impair right of council to insert other matters in franchise.

The enumeration and specification of particular matters in this charter which must be included in every franchise or grant shall never be construed as impairing the right of the council to insert in such franchise or grant such other and further matters, conditions, covenants, terms, restrictions, limitations, burdens, taxes, assessments, rates, rentals, charges, controls, forfeitures, or any other provision whatever, as the council shall deem proper to protect the interests of the people. (Emphasis added.)

Based on this plain-language reading, I believe that all the provisions that relate to franchises should be included in the Franchise Agreement, just as you did with the “non-exclusively” provision in Charter Section 109.

Therefore, I strongly suggest that you carefully examine all the Charter sections that relate to the issuance of franchises, follow them to the letter (without watering them down or waiving the rights of Boulder citizens), and include them in the Franchise Agreement so that there are no misunderstandings down the road.

Thank you for your service on Council and for your attention to cleaning up these documents.


K.K. DuVivier
Professor of Law