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HomeMy WebLinkAbout1999-373NOTE Amended by Ordinance No. 2000-041. ORDINANCE NO -_q-U AN ORDINANCE AMENDING THE CITY OF DENTON CODE OF ORDINANCES, CHAPTER 26, UTILITIES, BY ESTABLISHING UNIFORM REGULATIONS TO GOVERN THE USE AND OCCUPANCY OF PUBLIC RIGHTS -OF -WAY BY PROVIDERS OF ELECTRIC UTILITY SERVICE IN THE CITY OF DENTON, PROVIDING DEFINITIONS, REQUIRING SUCH USERS TO OBTAIN A FRANCHISE FROM THE CITY PRIOR TO SUCH USE, PRESCRIBING THE COMPENSATION TO BE PAID TO THE CITY BY PROVIDERS, PRESCRIBING THE CONDITIONS UNDER WHICH SUCH USERS MAY USE AND OCCUPY THE PUBLIC RIGHTS -OF -WAY, REQUIRING UNDERGROUNDING OF CONDUITS, REQUIRING JOINT USE OF POLES AND CONDUITS, REQUIRING THE MAINTENANCE OF MAPS AND DATA REGARDING FACILITIES IN PUBLIC RIGHTS - OF -WAY, PROVIDING FOR ENFORCEMENT OF THE REGULATIONS AND FRANCHISES GRANTED THEREUNDER, PROVIDING FOR PENALTIES AND OTHER LEGAL REMEDIES IN THE EVENT OF PROVIDER'S VIOLATION OF THE PROVISIONS OF THIS ORDINANCE OR OF THE FRANCHISE, PROVIDING FOR GOVERNMENTAL IMMUNITY OF THE CITY AND ITS EMPLOYEES, PROVIDING FOR INSURANCE, PROVIDING A SEVERABILITY PROVISION, PROVIDING AN EFFECTIVE DATE, AND ORDAINING OTHER PROVISIONS RELATED TO THE SUBJECT MATTER HEREOF WHEREAS, the City of Denton finds it in the public interest to provide that every entity using the Public Rights -of -Way for the provision of Electricity Utility Service shall, because of the overriding public health, safety and welfare considerations associated with the provision of this service, comply with uniform regulations governing such use, and 1060\08\991011 ROW ordinance WHEREAS, the City of Denton finds it in the public interest to retain control over the use of Public Rights -of -Way by providers of Electric Utility Services to ensure against interference with the public convenience, to promote aesthetic considerations, to promote planned and efficient use of limited Right -of -Way space and to protect the public investment in Right -of -Way, and WHEREAS, Article XIII of the City Charter of the City of Denton authorizes the City to prohibit the use of any street, alley, highway, boulevard or grounds of the City by any public utility without first obtaining the consent of the City expressed by ordinance and paying compensation as prescribed by the City, and upon such terms and conditions as the City shall provide, and WHEREAS, the City of Denton finds that the granting of franchises for such use of the Public Rights -of -Way under the provisions of this Ordinance to providers of Electric Utility Service is the best means of assuring that the above -described interests of the City are promoted, and WHEREAS, the protection of the public health, safety and welfare will be furthered by the standardization of such right-of-way regulations, NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That Chapter 26 of the City of Denton Code of Ordinances respecting Utilities, is hereby amended to add the following provisions, at Article VII thereof, entitled "Uniform Regulations to Govern the Use and Occupancy of Public Rights -of -Way by Providers of Electric Service in the City of Denton," by adding Sections 26-240, et seq thereto to read as follows 1060\08\991011 ROW ordinance 2 Section 26-240 Definitions For the purposes of this Ordinance and for franchises granted hereunder, the following terms, phrases, words, abbreviations and their derivations shall have the meaning given herein When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number The word "shall' is always mandatory and not merely directory Words not defined shall be given their common and ordinary meaning These definitions shall be subject to revision after review by the City to account for changes necessitated by retail competition in the electric utility industry commencing January 1, 2002 (a) "City" shall mean the City of Denton, Texas, a home rule municipal corporation (b) "Corporate limits" shall mean the corporate limits of the City as said limits are now established or as such limits may hereafter be extended (c) "Customer" shall mean any person, firm, partnership, association, corporation, company or organization of any kind served by a Provider hereunder within the City (d) "Electric Utility Service" shall include all sales of electricity, net of customer credits, to all customers within the corporate limits of the City (e) "Electric Utility System" or "System" shall mean an electric power system installed and operated in the City which shall include, but not be limited to, the generation, transmission and distribution facilities, equipment and administrative services necessary to provide electric service for any use to the City and such extensions, additions or reductions as may hereafter be made 1060\08\991011 ROW ordinance 3 (f) "Gross Revenues" shall mean all revenues received by the Provider from the provision of Electric Utility Service within the corporate limits of the City to all customers within the City (g) "Person" shall mean any person, fine, partnership, association, corporation, municipal corporation, company or organization of any kind (h) "Provider" shall mean any Person who owns, operates, or otherwise controls an Electric Utility System for the provision of Electric Utility Service within the City (i) "Public Rights -of -Way" shall mean all of the public streets, alleys, highways, and public thoroughfares of the City, as they now exist or may be hereafter constructed, opened, laid out, or extended within the present limits of the City, or in such territory as may hereafter be added to, consolidated, or annexed to the City Section 26-241 Franchise required (a) Any Person who desires to occupy Public Rights -of -Way for the purpose of providing Electric Utility Service to any Person or area of the City must obtain a franchise from the City hereunder and comply with all provisions of this Ordinance and the franchise granted hereunder The franchise granted by the City shall be granted in accordance with Article XIII of the City Charter, and shall authorize the Provider to use and occupy the present and future Public Rights -of -Way for the purpose of constructing, erecting, owning, suspending, installing, extending, renewing, repairing, maintaining, operating and conducting within the city limits of the City, a plant or plants and poles, wires, pipelines, cables, underground conduits, manholes, fiber optic cable solely for the provision, support, or control of the Electric Utility System, and all other facilities and equipment needed and necessary for the maintenance and operation of an Electric Utility System 1060\08\991011 ROW ordinance 4 (b) A Provider seeking to obtain a franchise shall make application therefor with the City Such application shall consist of completing the Application Form provided by the City and filing the completed form with the City, along with the required Application Fee of $500 Upon receipt of the completed Application Form and the Application Fee, and after reasonable opportunity for review of same, the City shall, by ordinance, grant a franchise to the applicant as provided herein (c) A franchise granted hereunder shall be limited to the provision by Provider of Electric Utility Services In the event Provider desires to use its existing facilities, or construct new facilities, in order to provide telecommunications service, local interconnection, network access service, leased fiber optic capacity, video programming service or any other telecommunications or telephony service to existing or potential customers, Provider must obtain additional and separate authorization from the City for such activities to be conducted in the Public Rights -of -Way prior to their commencement, as provided by state law, including the payment of appropriate fees therefor (d) Franchises granted hereunder shall cover the geographical area of the entire corporate limits of the City, but shall not be construed to expand or limit a Provider's service area granted by the Public Utility Commission of Texas The City limits are subject to expansion or reduction by annexation and contraction of municipal boundaries In accordance with state law and regulations of the Public Utility Commission of Texas, a franchised Provider may provide service to any and all areas that may be annexed to the City under the same terms and conditions of this Ordinance as the current areas now included within the City If the City approves any expansion or reduction of its corporate limits by annexation or contraction, the City will provide written notice to the Provider The Provider must revise its payments due to any 1060\08\991011 ROW ordinance 5 expansion or reduction by annexation or contraction within a reasonable time after notice by the City, but no later than sixty (60) calendar days after receipt of notice (e) Franchises may be granted for a fixed term, not to exceed twenty (20) years (f) A franchise shall not be assignable without the express, advance, written consent of the governing body of the City, which consent shall not be unreasonably withheld, such consent to be evidenced by an ordinance that fully recites the terms and conditions, if any, upon which such consent to assign is given Section 26-242 Compensation to be paid to the City (a) As compensation for the rights and privileges conferred by a franchise granted pursuant to this Ordinance, Provider shall be required to pay to the City, each quarter, a sum of money equal to four percent (4%) of the Provider's Gross Revenues as defined herein (b) Each quarterly payment required by this Ordinance and the franchise shall be equal to four percent (4%) of the preceding quarter's actual said Gross Revenues Each payment shall be due and payable on or before the last business day of the first month following the end of the preceding quarter by electronic funds transfer or by other means that provide immediately available funds to the City on the day the payment is due These payments (insofar as the City has legal power so to provide and agree) shall be in lieu of, and shall be accepted as payment for all of Provider's obligations to pay other charges for the rental of the Public Rights -of -Way, franchise taxes, or other taxes of every kind, save and except ad valorem taxes, sales and use taxes, special taxes and assessments for public improvements, and any fees associated with the use of City -owned poles (c) The compensation payable to the City by Providers as consideration for their use and occupancy of Public Rights -of -Way may change for Providers with franchises extending 1060\08\991011 ROW ordinance 6 beyond January 1, 2002, in accordance with Section 33 008, Public Utility Regulatory Act of Texas ("PURA") (Tex Util Code §33 008) For "electric utilities," as defined in PURA, the City shall determine the franchise fee to be paid by Providers using the criteria set forth in §33 008, PURA The new franchise fee shall be effective as of January 1, 2002, and shall replace the calculation of the franchise fee described in subsections (a) and (b) of this section For electric cooperatives, the City shall determine the franchise fee to be paid by such Providers, also in accordance with the criteria set forth in § 33 008, PURA, and the new franchise fee shall be effective upon the implementation by the electric cooperative Provider of customer choice Section 26-243 Underground conduits, use by City of conduits and poles (a) Provider shall install underground at no expense to the City all electric power distribution facilities within new residential subdivisions or commercial developments The City may require facilities to be moved underground at the City's expense (b) Representatives of both the City and the Provider shall meet periodically to (i) Consult and plan together regarding projects to be undertaken pursuant to this section The Provider shall provide non -binding "ballpark" cost estimates for planning purposes at no cost to the City The final decision as to which projects are selected rests with the City, subject to the provisions of this section The specific scheduling of projects rests with the Provider, which shall make every reasonable effort to complete such projects within the time requested by the City, (n) Review the City's undergroundmg program, including conversions, public projects and replacements, which have been accomplished or are underway by the Provider at the City's expense and request, together with the City's plans for additional undergroundmg, 1060\08\991011 ROW ordinance 7 (iii) Review the status of technology in the field of electric undergrounding, (m) Review the construction and operation and maintenance costs of underground lines versus overhead lines, and (iv) Review public projects anticipated by the City Such meetings shall be held to achieve a continuing program for the orderly undergrounding of electric lines in the City (c) When undertaking a project of undergrounding pursuant to subsection (b) of this section, the City and the Provider shall work with other utilities or companies that have their lines overhead to have all lines undergrounded as part of the same project When other utilities or companies are placing their lines underground, the Provider shall cooperate with these utilities and companies and undertake to underground Provider's facilities as part of the same project where feasible, provided, however, the Provider shall have no such obligation absent reimbursement of the Provider's cost by the City (d) The Provider shall use its best efforts to coordinate its installation of new underground facilities with preexisting underground facilities of other companies (e) If Provider, in its sole discretion, determines that it has spare ducts in its underground conduits, or spare pins, crossarms, or space on any of its poles not then necessary for the provision of Electric Utility Service, and not needed for future anticipated load growth or emergencies, Provider shall permit the City to use one such duct in each conduit, or reasonable spaces on poles, or both, for the City's police and fire alarm wires, traffic control wires or cable, fiber-optic lines connecting City facilities, or other similar, appropriate non-commercial, governmental uses, provided that such use by the City is in compliance with the National Electric Safety Code and at the expense of the City If Provider constructs or extends additional conduits 1060\08\991011 ROW ordinance 8 or erects additional poles, the City may require the Provider to provide one such duct in each conduit, or reasonable space on poles, or both, for the City's own use as aforesaid In either event, the City shall pay Provider a fair rental therefor (f) City shall not sell, lease or otherwise make available its rights to use Provider's facilities as set forth herein to any third party for commercial purposes Such rights are provided solely for the non-commercial use of the City for governmental purposes However, this restriction shall not prevent the City from using the services of a third party commercial entity to manage or operate the City's facilities on behalf of the City, so long as no resale or other commercial use of such facilities shall occur (g) Provider is not authorized to license or lease to any person or entity or any other public utility, any right to occupy or use the City's Public Rights -of -Way for the conduct of any private business or pursuit Section 26-244 Construction and maintenance, excavation (a) The construction, maintenance, and operation of Provider's Electric Utility System shall be subject to lawful police regulations and ordinances of the City, including, but not limited to, Sections 25-71, et seq , Denton Code of Ordinances The placement of poles, excavations, and other construction in the streets, alleys, and other Public Rights -of -Way, shall interfere as little as practicable with the use of the streets, sidewalks, and alleys, and with the use of private, property The City shall have the right and power, at any time to order and require Provider to remove and abate any pole, wire, cable, or other structure that is unnecessarily dangerous to life or property In the event the Provider, after notice, fails or refuses to act within a reasonable time, the City shall have the power to remove or abate the same at the expense of the Provider, all without compensation or liability for damages to Provider 1060\08\991011 ROW ordinance 9 (b) Whenever the Provider shall cause any opening or alteration to be made in any of the Public Rights -of -Way for the purpose of installing, maintaining, operating or repairing its Electric Utility System, the Provider must obtain a permit as required in Sections 25-71, et seq , Denton Code of Ordinances The work shall be completed at no expense to the City within a reasonable time The Provider shall, upon the completion of such work, restore such portion of the Public Rights -of -Way to as good or better condition as it was before the opening or alteration was so made and will promptly remove any debris Should the Provider fall to complete restoration after ten (10) calendar days' notice provided in writing by the City to Provider, the City may repair such portion of the Public Rights -of -Way that may have been disturbed by the Provider, and the cost shall be charged to the Provider (c) The Provider shall be responsible for the payment of all repair or maintenance costs incurred as a result of any defects, impairments, or substandard condition in the Public Rights -of -Way caused by the work of the Provider for two years after the City's acceptance of the completed work, provided however, that the Provider remains responsible for repair and maintenance costs beyond the two year period when it has been notified by the City in writing of a defect, impairment, or substandard condition within the two year period (d) On or before the effective date of a franchise granted hereunder, and as a condition precedent to the effectiveness of the franchise, the Provider shall deposit with the City Finance Director a surety bond in the amount of $50,000, payable to the City and securing the payment of repair or maintenance costs incurred as a result of any defects, impairments, or substandard condition in the Public Rights -of -Way caused by the work of the Provider or resulting from Provider's activities in the Public Rights -of -Way The required surety bond must 1060\08\991011 ROW ordinance 10 be with good and sufficient sureties, issued by a surety company authorized to transact business in the state, and satisfactory to the city attorney in form and substance (e) No provisions of this Ordinance shall be construed to prohibit City from imposing inspection or permitting charges and fees for excavation, maintenance and restoration projects by Provider, and requiring adequate security therefore, to assure appropriate planning, construction, inspection, completion and restoration of such projects (f) Engineering plans for those projects involving significant construction in Public Rights -of -Way shall be submitted to the City for approval no later than thirty (30) calendar days prior to the commencement of construction, which approval shall not be unreasonably withheld or delayed by the City (g) Except for emergency repairs or emergency paving cuts, a permit shall be obtained from the City prior to the initiation of any construction, repair, replacement, paving cuts, or other excavation within Public Rights -of -Way All reasonably practical alternatives to making paving cuts will be required before paving cuts will be permitted In addition to any other permit requirement, the Provider shall submit a plan that provides for compliance with all federal, state, and City requirements, including, but not limited to, construction and restoration standards, stormwater quality regulations, traffic control regulations, and the Texas Professional Engineering Practices Act Any plans submitted shall be detailed to the satisfaction of the Director of Engineering and Transportation If any work is to be done by an independent contractor or subcontractor, the Provider must identify, in writing, that contractor and any subcontractors to the City before a permit is issued For the permit, the City may require information as necessary so that adequate notification, communication, and points of contact for the Provider or its contractor may be established 1060\08\991011 ROW ordinance 11 (h) In the event Provider undertakes emergency repairs, excavations, or paving cuts for which a permit has not been obtained that result in any disruptions to the public's or the City's use of Public Rights -of -Way, the Provider shall deliver notice to the City of such repairs, excavations, or paving cuts no later than the end of the next working day following initiation of the work In the event such emergency repairs, excavations, or paving cuts are required on an arterial street during peak traffic periods, i e , 7-9 a in or 4-6 p in Monday through Friday, the Provider shall verbally notify the Denton Police Department at the time of commencement of such work (i) Erosion and sedimentation during construction or repair work shall be controlled in accordance with the ordinances and regulations of the City generally applicable to excavations within the City, as amended or revised from time to time Permanent erosion control shall be required upon completion of all work Effective environmental and pollution control measures shall be maintained in accordance with City, State, and federal requirements 0) When Provider shall make or cause to be made excavations or shall place obstructions in any Public Rights -of -Way, the Provider shall place, erect, and maintain barriers and lights to identify the location of such excavations or obstructions, consistent with the Manual of Uniform Traffic Control Devices, and as further directed by the City and the Texas Department of Transportation (k) Work done in the Public Rights -of -Way shall be planned and executed to minimize time of construction and disruption to traffic and the general public The work site must be rendered safe to traffic and the general public in accordance with normal utility practice prior to workers leaving the site each day Once started, work must proceed without interruption to completion, including restoration and clean-up 1060\08\991011 ROW ordinance 12 (1) Except for emergencies as determined by the Provider or under special circumstances as determined by the Director of Engineering and Transportation, work hours for work in the Public Rights -of -Way will be 8 a in to 5 p in or darkness, whichever occurs first, for all areas other than along major thoroughfares Work on or along major thoroughfares will be limited to the hours of 9 a in to 4 p in unless otherwise specifically permitted by the City (m) Provider shall have the authority to trim trees upon and overhanging Public Rights -of -Way (including sidewalks and driveways), after providing written notice to affected customersy so as to prevent the branches of the trees from coming into contact with the wires and cables of the Provider, provided that all trimming is done in compliance with the National Electric Safety Code and City Code provisions, and at no expense to the City (n) The City shall have the right to deny a permit for any proposed new or additional facilities within the Public Rights -of -Way if it determines there is insufficient space to accommodate the facilities, or if the Provider, or its subcontractors, are not in compliance with existing City ordinances and standards or previously issued permits (o) Provider and City may agree that City shall perform paving cuts, excavation, or other construction or repairs in the Public Rights -of -Way on behalf of Provider, at such reasonable price and upon such reasonable terms as Provider and City may agree In the event of such agreement, then with respect to the work to be done by City pursuant to that agreement, the provisions of this Section shall not apply to Provider motion 26-245 Joint use of poles, trenches, and conduits (a) In order to reduce the number of poles and to avoid public safety concerns and visual clutter, the Provider may be required to attach its wires to poles owned and maintained by another Person, or to permit the wires of another public utility to be attached to the poles owned 1060\08\991011 ROW ordinance 13 and maintained by the Provider, upon reasonable terms and for just compensation for any additional facilities of Provider that may be required (b) In the event that Provider and such other public utility are unable to agree on terms and compensation, or if same are not otherwise resolved or determined within a reasonable time, then disputes ansmg under this Section shall be resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association Arbitration shall be by a panel of three arbitrators one selected by the Provider, one selected by the other public utility, and one experienced in the matters at issue and selected by the Provider and the other public utility in accordance with the Commercial Arbitration Rules of the American Arbitration Association The decision of the arbitrator shall be final and binding as to any matters submitted under this Section All costs and expenses incurred in connection with any such arbitration proceeding (including reasonable attorneys' fees) shall be borne by the party against which the decision is rendered, or, if no decision is rendered, such costs and expenses shall be borne equally by the Provider and the other public utility If the arbitrator's decision is a compromise, the determination of which party or parties bears the costs and expenses incurred in connection with any such arbitration proceeding shall be made by the arbitrator on the basis of the arbitrator's assessment of the relative merits of each party's position The parties shall instruct the arbitrator to render its decision no later than ninety (90) calendar days after submission of the dispute (c) The Provider may require such other public utility to furnish evidence of adequate insurance and provide indemnification covering the Provider, and adequate bonds covering the performance of such other public utility attaching to the Provider's poles, as a condition 1060\08\991011 ROW ordinance 14 precedent to giving permission to such other public utility to attach wires to Provider's poles Provider's requirements for such insurance and indemnity must be reasonable (d) Provider shall not be required to attach its wires to the poles of another public utility or to permit the wires of another public utility to be attached to Provider's poles if it can be satisfactorily shown (i) that Provider will be subjected to increased risks of interruption of service or liability for accidents, (n) the poles, wire, and appurtenances of such other public utility are not of the character, design, or construction required by, or are not being maintained in accordance with modern electric utility practice, or (in) sufficient clearance or space is not available on the pole Wires shall be located on poles in compliance with applicable safety standards and shall not interfere with the erection, replacement, operation, repair, or maintenance of the wires and appurtenances of any other public utility occupying the poles (e) Provider's distribution feeder lines may be constructed as overhead lines, but such lines shall be designed and constructed in an "armless" manner, to the extent such design and construction is technically feasible, with no more than two (2) such lines per Right -of -Way "Armless" type construction means cross arms up to four (4) feet in length phase to phase or two (2) feet in length pole to phase (f) Provider may be required by the City to share trench space with another public utility for the placement of cables, wires, or ducts underground Compensation to the Provider as well as the terms of sharing trench space shall be resolved as provided for in subsection (a) of this Section Also, Provider may require insurance and indemnification, as provided in 1060\08\991011 ROW ordinance 15 subsection (a) of this Section Ducts, cables, or wires shall be placed in trenches in compliance with applicable safety standards and in a manner that does not interfere with Provider's cables or wires, as provided in subsection (b) of this Section (e) Nothing herein shall modify or abrogate the power of the City to require any holder of a franchise from the City to allow use of its facilities by any other holder of a City franchise under Article XIII of the City Charter Section 26-246 Conformance with public improvements Whenever, by reason of any changes, without limitation, of any street, sidewalk, curb, alley, highway or public way, or in the location or manner of constructing any water or wastewater pipe, gas pipe, storm sewer, or other underground or overhead structure for any governmental purpose whatsoever, other than siting of competitive electric facilities owned by the City, it shall be deemed necessary by the City to remove, alter, change, adapt, or conform the underground or overhead facilities of Provider located in the Public Right -of -Way, such alterations or changes shall be made as soon as practicable by Provider when ordered in writing by the City, without claim for reimbursement or damages against the City Provided, however, if said requirements impose a financial hardship upon the Provider, the Provider shall have the right to present alternative proposals for the City's consideration The City shall not require Provider to remove its facilities entirely from a street, sidewalk, curb, alley, highway, or public way unless suitable alternatives are available for relocation of its facilities Section 26 247 Provider to maintain and file maps and assist in determining Provider's use of Public Rights -of -Way (a) The Provider shall cooperate with the City at all times by providing timely and complete information regarding the location of its conduits, poles and facilities, along with such maps, plats, construction documents and drawings as may exist or as may be created from time 1060\08\991011 ROW ordinance 16 to time Provider and City shall cooperate and coordinate their efforts to make the most efficient and economical use of their respective facilities The Provider shall at all times keep on file in the office of the Director of Engineering and Transportation a current map, in a digital format compatible with the City's Geographic Information System ("G I S "), of the Provider's Electric Utility System within the City As extensions or modifications of facilities are made from time to time, the Provider shall periodically file with the Director updated digital maps showing those extensions or modifications so that the City will have current and accurate information regarding the location and characteristics of the System The digital information shall include the location of the facilities comprising the Systems, and all other information maintained by the Provider pertaining to the City's administration of the franchise, including the depth of any buried transmission or distribution lines, to the extent such information exists If such information is not available in digital format, a hard copy shall be provided A hard copy of the digital maps may be requested by the City and shall be provided by the Provider if so requested (b) The City will use the information provided by Providers pursuant to this Section only for the purposes of protection and management of the Public Rights -of -Way The data base provided by Provider in its entirety will be treated as competitive information and will not be disclosed in whole or in part, except that portions of such data may be provided to third parties as necessary for efficient management of the Public Rights -of -Way Section 26-248 Work by others (a) The City reserves the right to lay, and permit to be laid, storm sewer, gas, water, wastewater and other pipe lines, cables, and conduits, and to do and permit to be done any underground or overhead work that may be necessary or proper in, across, along, over, or under the Public Rights -of -Way occupied by the Provider The City also reserves the right to change, 1060\08\991011 ROW ordinance 17 in any manner, any curb, sidewalk, highway, alley, public way or street In permitting such work to be done, the City shall not be liable to the Provider for any damage so occasioned, but nothing herein shall relieve any other Person from responsibility for damages to the facilities of Provider (b) In the event that the governing body of the City authorizes someone other than the Provider to occupy space under the surface of the Public Rights -of -Way, such grant shall be subject to the rights herein granted or heretofore obtained by the Provider In the event that the governing body of the City shall close or abandon any Public Right -of -Way that contains existing facilities of the Provider, any conveyance of land within such closed or abandoned Public Right -of -Way shall be subject to the rights herein granted or heretofore obtained by Provider Provided, however, that the Provider may be ordered to vacate any land so conveyed, if an alternate route is practicable, and if the Provider is reimbursed by the Person to whom the property is conveyed for the reasonable costs of removal and relocation of its facilities (c) If the City shall require Provider to adapt or conform its Electric Utility System, or in any way or manner to alter, relocate, or change its property to enable any other Person to use, or use with greater convenience, said Public Right -of -Way, Provider shall not be bound to make any such changes until such other Person (except the City) shall have undertaken, with good and sufficient bond, to reimburse the Provider for any cost, loss, or expense which will be caused by, or arise out of such change, alteration, or relocation of Provider's property Provided, however, that the City shall never be liable for such reimbursement due to Provider from such Person Section 26-249 Accountine auditinspection (a) The Provider shall maintain, at its local office or principal place of business within the State, adequate books and records relating to the performance of its obligations under 1060\08\991011 ROW ordinance 18 this Ordinance and its franchise The Provider shall maintain its books and records in a form and with coding sufficient to identify its Gross Revenues through December 31, 2001 and, beginning on January 1, 2002 and to the extent such information is available to Provider under applicable regulatory provisions, the number of kWh of electricity delivered by the Provider to each retail customer whose consuming point of delivery is located within the City, intending thereby to separately identify these relevant records of its System in the City in order to facilitate the City's review of the franchise fee payments The records of the Provider applicable to its performance under this Ordinance and its franchise shall be made available upon not less than ten (10) working days notice for inspection by the City at any time during normal working hours, subject to statutory and regulatory provisions regarding the confidentiality of customer -specific information (b) City may cause, upon reasonable written notice, an audit to be made of the books and records of Provider relating to Provider's performance under this Ordinance and its franchise The omission by the City to exercise its rights to any audit at any time shall not constitute a waiver of such right City shall have the right to select auditors to make the audit Provider shall make available to the auditor personnel and such records as are relevant to such audit, and shall make no charge to the City therefor Provider shall assist the City during any audit conducted under this Ordinance, including answering questions and providing any requested records or information Provider shall endeavor to provide requested records or information within twenty-one (21) calendar days of having received a written request therefor If the Provider cannot so provide such records and information, then on or before such twenty- first day after receiving the request therefor, the Provider shall notify the City or its representative that the requested records and information will be made available within an 1060\08\991Oil ROW ordinance 19 additional fourteen (14) calendar days, and the information and records shall be so provided The cost of an audit pursuant to this provision shall be borne by the City, unless the audit reveals an underpayment of fees in excess of two percent (2%), in which case the Provider shall pay for the audit (c) Upon request by the City, but no less than annually, the Provider will prepare a statement of its estimate of Provider's Gross Revenue and the number of kWh to be delivered in the City for the period covered by the statement signed by an authorized representative of the Provider, in such reasonable form and detail as City may from time to time prescribe, sufficient to show the source and method of calculation of Provider's Gross Revenue The acceptance of any statement or payment shall not estop the City from asserting that the amount paid is not the amount due or from recovering any deficit by any lawful proceeding, including interest (d) In the event the Provider shall be determined to have under -remitted the fee required by this Ordinance, the Provider shall pay, in addition to the underpayments, interest on the underpayments at the rate of ten percent (10%) per annum from the time of the underpayment until payment is made In the event of underpayment of fees, the Provider shall also pay to the City ten percent (10%) of the total underpayment as a penalty for noncompliance with this Ordinance Any penalty of less than one hundred dollars ($100) shall be waived as a de minimus violation Section 26-250 Penalties (a) For the violation of any of the following provisions of this Ordinance or of its franchise, penalties shall be paid by Provider to the City within fifteen (15) calendar days of written notice of assessment by the City, in addition to any other rights or remedies which the City may have at law or in equity 1060\08\991011 ROW ordinance 20 (i) For failure to complete construction in accordance with agreed plans, unless the City specifically approves the delay, Provider shall pay a penalty of One Hundred Dollars ($100 00) per day for each day that the failure continues (n) For failure to provide data, documents, reports, or information required to be furnished hereunder to the City, or to reasonably cooperate with the City during an audit required under the terms hereunder, Provider shall pay a penalty of One Hundred Dollars ($100 00) per day for each day the violation occurs or continues (iu) For failure to comply with any financial obligation required herein, Provider shall pay a penalty of One Hundred Fifty Dollars ($150 00) per day for each day that such noncompliance continues (iv) Commencing ten (10) calendar days following the adoption of a resolution or an ordinance of the City that finds and determines a failure of Provider to comply with operational or maintenance standards as required by this Ordinance, Provider shall pay a penalty of One Hundred Fifty Dollars ($150 00) per day for each day that such noncompliance continues (b) Prior to imposing a penalty under subparagraphs (i) through (ui) above and/or adopting a resolution under subparagraph (iv) above, the City shall give the Provider written notice and a period to cure, not to exceed five (5) working days If the Provider fails to cure the alleged problems within the prescribed time period, the Provider's alleged failure to comply shall be heard at a public meeting of the City Council The Provider shall be given written notice of the public meeting no later than five (5) calendar days prior to the posting date of the agenda for 1060\08\991011 ROW ordinance 21 the City Council meeting at which such resolution is scheduled to be considered by the Council The notice to the Provider shall include a list of the failures complained of Provider shall have an opportunity to address the Council at such public meeting Section 26-251 Forfeiture and termination (a) In addition to all other rights and powers retained by the City under this Ordinance or otherwise, the City reserves the right to forfeit and terminate a franchise granted pursuant to the provisions hereof and all rights and privileges of the Provider hereunder, in the event of an uncorrected material breach of its terms and conditions A material breach by Provider for purposes of this Section, shall include, but shall not be limited to the following (i) Violation of any material provision of this Ordinance or a franchise granted hereunder, or any rule, order, regulation or determination of the City made pursuant to this Ordinance that is not cured or corrected in accordance with the provisions of this Ordinance, or (n) An attempt by Provider to evade any provision of this Ordinance or its franchise, or to practice any fraud or deceit upon the City or its residents (b) The foregoing matters described in paragraph (a) above shall not constitute a material breach of this Ordinance if the violation occurs without fault of the Provider, or occurs as a result of circumstances beyond Provider's control which could not have been avoided as a result of the exercise of reasonable care Provider shall not be excused by mere economic hardship, or by the misfeasance or malfeasance of its directors, officers, agents, or employees (c) The City shall make a written demand that the Provider comply with any such provision, rule, order, or determination under or pursuant to this Ordinance or its franchise If the violation by the Provider continues for a period of thirty (30) calendar days following such 1060\08\991011 ROW ordinance 22 written demand, without the City receiving written proof and substantiation from Provider that the required corrective action has been taken, or is being actively and expeditiously pursued, the City may take under consideration the issue of termination of the franchise of Provider The City shall set a hearing, and shall cause to be served upon Provider, at least fifteen (15) calendar days prior to the date of such hearing, a written notice of intent to request such termination and the time and place of the hearing Public notice shall be given of the hearing and the issue or issues which the City is to consider At said hearing, the governing body of the City shall hear and consider the issue or issues and shall hear any person interested therein At said hearing, the governing body of the City shall determine, in its sole discretion, whether or not any uncorrected violation by the Provider still exists (d) If the City shall determine that an uncorrected material violation by the Provider still exists, and was the fault of the Provider, and within its control, and could have been avoided with the exercise of reasonable care, the City may declare the franchise of the Provider forfeited and terminated, or in the alternative, the Council may grant to Provider a further period of time to cure the violation (e) The failure of the City to insist in any one or more instances upon the strict performance of any one or more of the terms or provisions of this Ordinance shall not be construed as a waiver or relinquishment for the future of any such term or provision, and the same shall continue in full force and effect No waiver or relinquishment shall be deemed to have been made by the City unless said waiver or relinquishment is in writing and signed by the City 1060\08\991011 ROW ordinance 23 Section 26-2�52 Other legal remedies (a) Nothing herein contained shall limit or restrict any legal rights that the City may possess arising from any alleged violation of this Ordinance or its franchise by Provider The City retains all other rights, both legal and equitable, to which it is entitled under the law (b) Nothing herein contained shall limit the Provider's right to appeal a determination, act, or order of the City as provided for by the Constitution and laws of the State of Texas, including the Public Utility Regulatory Act of Texas, as amended, or its successor statute Section 26-253 Legal cMacity of provider The Provider shall be a legal entity with legal capacity to operate, construct, reconstruct, and maintain an electric transmission and distribution system in the City in its properly certificated service area Sgction 26-254 Governmental immunity All of the provisions contained in this Ordinance are hereby declared to be for a public purpose, and are in the interests of the health, safety, and welfare of the general public Any member of the governing body of the City, or City official or employee charged with the enforcement of this Ordinance, acting for or on behalf of the City in the discharge of his or her official duties, shall not thereby render himself or herself personally liable, and he or she is hereby relieved from any and all personal liability for any damage that might accrue to any person or property as a result of any act required or permitted in the discharge of his or her said duties 1060\08\991011 ROW ordinance 24 Section 26-255 Insurance Provider will insure against all the risks undertaken pursuant to its franchise, including the indemnification required in the franchise Such insurance may be in the form of self- insurance to the extent permitted by applicable law, under a Provider -approved formal plan of self-insurance maintained in accordance with sound accounting and risk -management practices Such insurance coverage or plan of self-insurance is subject to the approval of the Risk Manager of the City, whose approval shall not be unreasonably withheld or delayed A certificate of insurance shall be provided to the City annually, no later than October 1 for each year during the term of Provider's franchise, evidencing such coverage, and additionally within thirty (30) calendar days of any substantial change in the nature of its coverage under this Section Should Provider elect to self -insure, its annual notice to the City shall contain information clearly identifying the process for filing a claim against such coverage Section 26-256 Severability If any section, subsection, paragraph, sentence, clause, phrase or word in this Ordinance, or the application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions of this Ordinance despite any such invalidity SECTION II This Ordinance shall take effective immediately from and after its passage, and it is accordingly SO ORDAINED 1060\08\991011 ROW ordinance 25 SECTION III It is hereby officially found and determined that the meetings at which this Ordinance was passed were open to the public as required by law, and that public notice of the time, place and purpose of said meetings was given as required by law PASSED AND APPROVED this the 1;? lday of , 1999 JAC M ER, MAYOR ATTEST JENNIFE'R WALTERS, CITY SECRETARY BY LL = Jallaz APP VED A TO LEGAL FORM HERBE 'T L PROUTY CIT ATTORNEY BY % 1060\08\991011 ROW ordinance 26 ORDINANCE NO AN ORDINANCE AMENDING THE CITY OF DENTON CODE OF ORDINANCES, CHAPTER 26, UTILITIES, AND AMENDING AND SUPERSEDING ORDINANCE NO 99- 373, BY ESTABLISHING UNIFORM REGULATIONS TO GOVERN THE USE AND OCCUPANCY OF PUBLIC RIGHTS -OF -WAY BY PROVIDERS OF ELECTRIC UTILITY SERVICE IN THE CITY OF DENTON, TEXAS, PROVIDING DEFINITIONS, REQUIRING SUCH USERS TO OBTAIN A FRANCHISE FROM THE CITY PRIOR TO SUCH USE, PRESCRIBING THE COMPENSATION TO BE PAID TO THE CITY BY PROVIDERS, PRESCRIBING THE CONDITIONS UNDER WHICH SUCH USERS MAY USE AND OCCUPY THE PUBLIC RIGHTS -OF -WAY, REQUIRING UNDERGROUNDING OF CONDUITS, REQUIRING JOINT USE OF POLES AND CONDUITS, REQUIRING THE MAINTENANCE OF MAPS AND DATA REGARDING FACILITIES IN PUBLIC RIGHTS - OF -WAY, PROVIDING FOR ENFORCEMENT OF THE REGULATIONS AND FRANCHISES GRANTED THEREUNDER, PROVIDING FOR TWO PENALTIES IN THE AMOUNT OF $150 00 EACH, FOR EACH VIOLATION THEREOF, PROVIDING FOR TWO PENALTIES IN THE AMOUNT OF $100 00 EACH, FOR EACH VIOLATION THEREOF, PROVIDING FOR OTHER AND FURTHER LEGAL REMEDIES IN THE EVENT OF PROVIDER'S VIOLATION OF THE PROVISIONS OF THIS ORDINANCE OR OF ANY FRANCHISE, PROVIDING FOR GOVERNMENTAL IMMUNITY OF THE CITY AND ITS EMPLOYEES, PROVIDING FOR INSURANCE, PROVIDING A SEVERABILITY PROVISION, PROVIDING AN EFFECTIVE DATE, AND ORDAINING OTHER PROVISIONS RELATED TO THE SUBJECT MATTER HEREOF WHEREAS, the City of Denton finds it in the public interest to provide that every entity using the Public Rights -of -Way for the provision of Electric Utility Service shall, because of the Page t overriding public health, safety and welfare considerations associated with the provision of this service, comply with uniform regulations governing such use, and WHEREAS, the City of Denton finds it in the public interest to retain control over the use of Public Rights -of -Way by providers of Electric Utility Services to ensure against interference with the public convenience, to promote aesthetic considerations, to promote planned and efficient use of limited Right -of -Way space and to protect the public investment in Right -of -Way, and WHEREAS, Article XIII of the City Charter of the City of Denton authorizes the City to prohibit the use of any street, alley, highway, boulevard or grounds of the City by any public utility without first obtaining the consent of the City expressed by ordinance and paying compensation as prescribed by the City, and upon such terms and conditions as the City shall provide, and WHEREAS, the City of Denton finds that the granting of franchises for such use of the Public Rights -of -Way under the provisions of this Ordinance to providers of Electric Utility Service is the best means of assuring that the above -described interests of the City are promoted, and WHEREAS, the protection of the public health, safety and welfare will be furthered by the standardization of such right-of-way regulations, NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS ;SECTION 1 That this Ordinance expressly amends and supersedes Ordinance No 99- 373, previously enacted by the Denton City Council on the 121h day of October, 1999 SECTION 2 That Chapter 26 of the City of Denton Code of Ordinances respecting Utilities, is hereby amended to add the following provisions, at Article VII thereof, entitled "Uniform Regulations to Govern the Use and Occupancy of Public Rights -of -Way by Providers Page 2 of Electric Service in the City of Denton," by adding Sections 26-240, et seq thereto to read as follows Section 26-240 Definitions For the purposes of this Ordinance and for franchises granted hereunder, the following terms, phrases, words, abbreviations and their derivations shall have the meaning given herein When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number The word "shall' is always mandatory and not merely directory Words not defined shall be given their common and ordinary meaning These definitions shall be subject to revision after review by the City to account for changes necessitated by retail competition in the electric utility industry commencing January 1, 2002 (a) "City" shall mean the City of Denton, Texas, a home rule municipal corporation (b) "Corporate limits" shall mean the corporate limits of the City as said limits are now established or as such limits may hereafter be extended (c) "Customer" shall mean any person, firm, partnership, association, corporation, company or organization of any kind served by a Provider hereunder within the City (d) "Electric Utility Service" shall include all sales of electricity, net of customer credits, to all customers within the corporate limits of the City (e) "Electric Utility System" or "System" shall mean an electric power system installed and operated in the City which shall include, but not be limited to, the generation, transmission and distribution facilities, equipment and administrative services necessary to provide electric service for any use to the City and such extensions, additions or reductions as may hereafter be made Page 3 (f) "Gross Revenues" shall mean all revenues received by the Provider from the provision of Electric Utility Service within the corporate limits of the City to all customers within the City (g) "Person" shall mean any person, firm, partnership, association, corporation, municipal corporation, company or organization of any kind (h) "Provider" shall mean any Person who owns, operates, or otherwise controls an Electric Utility System for the provision of Electric Utility Service within the City (i) "Public Rights -of -Way" shall mean all of the public streets, alleys, highways, and public thoroughfares of the City, as they now exist or may be hereafter constructed, opened, laid out, or extended within the present lunits of the City, or in such territory as may hereafter be added to, consolidated, or annexed to the City Section 26-241 Franchise required (a) Any Person who desires to occupy Public Rights -of -Way for the purpose of providing Electric Utihty Service to any Person or area of the City must obtain a franchise from the City hereunder and comply with all provisions of this Ordinance and the franchise granted hereunder The franchise granted by the City shall be granted in accordance with Article XIII of the City Charter, and shall authorize the Provider to use and occupy the present and future Public Rights -of -Way for the purpose of constructing, erecting, owning, suspending, installing, extending, renewing, repairing, maintaining, operating and conducting within the city limits of the City, a plant or plants and poles, wires, pipelines, cables, underground conduits, manholes, fiber optic cable solely for the provision, support, or control of the Electric Utility System, and all other facilities and equipment needed and necessary for the maintenance and operation of an Electric Utility System Page 4 (b) A Provider seeking to obtain a franchise shall make application therefor with the City Such application shall consist of completing the Application Form provided by the City and filing the completed form with the City, along with the required Application Fee of $500 Upon receipt of the completed Application Form and the Application Fee, and after reasonable opportunity for review of same, the City shall, by ordinance, grant a franchise to the applicant as provided herein (c) A franchise granted hereunder shall be limited to the provision by Provider of Electric Utility Services In the event Provider desires to use its existing facilities, or construct new facilities, in order to provide telecommunications service, local interconnection, network access service, leased fiber optic capacity, video programming service or any other telecommunications or telephony service to existing or potential customers, Provider must obtain additional and separate authorization from the City for such activities to be conducted in the Public Rights -of -Way prior to their commencement, as provided by state law, including the payment of appropriate fees therefor (d) Franchises granted hereunder shall cover the geographical area of the entire corporate limits of the City, but shall not be construed to expand or limit a Provider's service area granted by the Public Utility Commission of Texas The City limits are subject to expansion or reduction by annexation and contraction of municipal boundaries In accordance with state law and regulations of the Public Utility Commission of Texas, a franchised Provider may provide service to any and all areas that may be annexed to the City under the same terms and conditions of this Ordinance as the current areas now included within the City If the City approves any expansion or reduction of its corporate limits by annexation or contraction, the City will provide written notice to the Provider The Provider must revise its payments due to any Page 5 expansion or reduction by annexation or contraction within a reasonable time after notice by the City, but no later than sixty (60) calendar days after receipt of notice (e) Francluses may be granted for a fixed term, not to exceed twenty (20) years (f) A franchise shall not be assignable without the express, advance, written consent of the governing body of the City, which consent shall not be unreasonably withheld, such consent to be evidenced by an ordinance that fully recites the terms and conditions, if any, upon which such consent to assign is given Section 26-242 Compensation to be paid to the Citv (a) As compensation for the rights and privileges conferred by a franchise granted pursuant to this Ordinance, Provider shall be required to pay to the City, each quarter, a sum of money equal to four percent (40/6) of the Provider's Gross Revenues as defined herein (b) Each quarterly payment required by this Ordinance and the franchise shall be equal to four percent (4%) of the preceding quarter's actual said Gross Revenues Each payment shall be due and payable on or before the last business day of the first month following the end of the preceding quarter by electronic funds transfer or by other means that provide immediately available funds to the City on the day the payment is due These payments (insofar as the City has legal power so to provide and agree) shall be in lieu of, and shall be accepted as payment for all of Provider's obligations to pay other charges for the rental of the Public Rights -of -Way, franchise taxes, or other taxes of every kind, save and except ad valorem taxes, sales and use taxes, special taxes and assessments for public improvements, and any fees associated with the use of City -owned poles (c) The compensation payable to the City by Providers as consideration for their use and occupancy of Public Rights -of -Way may change for Providers with franchises extending beyond January 1, 2002, in accordance with Section 33 008, Public Utility Regulatory Act of Page 6 Texas ("PURA") (Tex Util Code §33 008) For "electric utilities," as defined in PURA, the City shall determine the franchise fee to be paid by Providers using the criteria set forth in §33 008, PURA The new franchise fee shall be effective as of January 1, 2002, and shall replace the calculation of the franchise fee described in subsections (a) and (b) of this section For electric cooperatives, the City shall determine the franchise fee to be paid by such Providers, also in accordance with the criteria set forth in § 33 008, PURA, and the new franchise fee shall be effective upon the implementation by the electric cooperative Provider of customer choice Section 26-243 Underground conduits, use by City of conduits and poles (a) Provider shall install underground at no expense to the City all electric power distribution facilities within new residential subdivisions or commercial developments The City may require facilities to be moved underground at the City's expense (b) Representatives of both the City and the Provider shall meet periodically to (1) Consult and plan together regarding projects to be undertaken pursuant to this section The Provider shall provide non -binding "ballpark" cost estimates for planning purposes at no cost to the City The final decision as to which projects are selected rests with the City, subject to the provisions of this section The specific scheduling of projects rests with the Provider, which shall make every reasonable effort to complete such projects within the time requested by the City, (n) Review the City's undergroundmg program, including conversions, public projects and replacements, which have been accomplished or are underway by the Provider at the City's expense and request, together with the City's plans for additional undergroundmg, (in) Review the status of technology in the field of electric undergroundmg, Page 7 (in) Review the construction and operation and maintenance costs of underground lines versus overhead lines, and (iv) Review public projects anticipated by the City Such meetings shall be held to achieve a continuing program for the orderly undergrounding of electric lines in the City (c) When undertaking a project of undergrounding pursuant to subsection (b) of this section, the City and the Provider shall work with other utilities or companies that have their lines overhead to have all lines undergrounded as part of the same project When other utilities or companies are placing their lines underground, the Provider shall cooperate with these utilities and companies and undertake to underground Provider's facilities are part of the same project where feasible, provided, however, the Provider shall have no such obligation absent reimbursement of the Provider's cost by the City (d) The Provider shall use its best efforts to coordinate its installation of new underground facilities with preexisting underground facilities of other companies (e) If Provider, in its sole discretion, determines that it has spare ducts in its underground conduits, or spare pins, crossarms, or space on any of its poles not then necessary for the provision of Electric Utility Service, and not needed for future anticipated load growth or emergencies, Provider shall permit the City to use one such duct in each conduit, or reasonable spaces on poles, or both, for the City's police and fire alarm wires, traffic control wires or cable, fiber-optic lines connecting City facilities, or other similar, appropriate non-commercial, governmental uses, provided that such use by the City is in compliance with the National Electric Safety Code and at the expense of the City If Provider constructs or extends additional conduits or erects additional poles, the City may require the Provider to provide one such duct in each Page 8 conduit, or reasonable space on poles, or both, for the City's own use as aforesaid In either event, the City shall pay Provider a fair rental therefor (f) City shall not sell, lease or otherwise make available its rights to use Provider's facilities as set forth herein to any third party for commercial purposes Such rights are provided solely for the non-commercial use of the City for governmental purposes However, this restriction shall not prevent the City from using the services of a third party commercial entity to manage or operate the City's facilities on behalf of the City, so long as no resale or other commercial use of such facilities shall occur (g) Provider is not authorized to license or lease to any person or entity or any other public utility, any right to occupy or use the City's Public Rights -of -Way for the conduct of any private business or pursuit Section 26 244 Construction and maintenance excavation (a) The construction, maintenance, and operation of Provider's Electric Utility System shall be subject to lawful police regulations and ordinances of the City, including, but not limited to, Sections 25-71, et seq , Denton Code of Ordinances The placement of poles, excavations, and other construction in the streets, alleys, and other Public Rights -of -Way, shall interfere as little as practicable with the use of the streets, sidewalks, and alleys, and with the use of private property The City shall have the right and power, at any time to order and require Provider to remove and abate any pole, wire, cable, or other structure that is unnecessarily dangerous to life or property In the event the Provider, after notice, fails or refuses to act within a reasonable time, the City shall have the power to remove or abate the same at the expense of the Provider, all without compensation or liability for damages to Provider (b) Whenever the Provider shall cause any opening or alteration to be made in any of the Public Rights -of -Way for the purpose of installing, maintaining, operating or repairing its Page 9 Electric Utility System, the Provider must obtain a permit as required in Sections 25-71, et seq , Denton Code of Ordinances The work shall be completed at no expense to the City within a reasonable time The Provider shall, upon the completion of such work, restore such portion of the Public Rights -of -Way to as good or better condition as it was before the opening or alteration was so made and will promptly remove any debris Should the Provider fail to complete restoration after ten (10) calendar days' notice provided in writing by the City to Provider, the City may repair such portion of the Public Rights -of -Way that may have been disturbed by the Provider, and the cost shall be charged to the Provider (c) The Provider shall be responsible for the payment of all repair or maintenance costs incurred as a result of any defects, impairments, or substandard condition in the Public Rights -of -Way caused by the work of the Provider for two years after the City's acceptance of the completed work, provided however, that the Provider remains responsible for repair and maintenance costs beyond the two year period when it has been notified by the City in writing of a defect, impairment, or substandard condition within the two year period (d) On or before the effective date of a franchise granted hereunder, and as a condition precedent to the effectiveness of the franchise, the Provider shall deposit with the City Finance Director a surety bond in the amount of $50,000, payable to the City and securing the payment of repair or maintenance costs incurred as a result of any defects, impairments, or substandard condition in the Public Rights -of -Way caused by the work of the Provider or resulting from Provider's activities in the Public Rights -of -Way The required surety bond must be with good and sufficient sureties, issued by a surety company authorized to transact business in the state, and satisfactory to the City Attorney in form and substance (e) No provisions of this Ordinance shall be construed to prohibit City from imposing inspection or permitting charges and fees for excavation, maintenance and restoration projects by Page 10 Provider, and requiring adequate security therefor, to assure appropriate planning, construction, inspection, completion and restoration of such projects (f) Engineering plans for those projects involving significant construction in Public Rights -of -Way shall be submitted to the City for approval no later than thirty (30) calendar days prior to the commencement of construction, which approval shall not be unreasonably withheld or delayed by the City (g) Except for emergency repairs or emergency paving cuts, a permit shall be obtained from the City prior to the initiation of any construction, repair, replacement, paving cuts, or other excavation within Public Rights -of -Way All reasonably practical alternatives to making paving cuts will be required before paving cuts will be permitted In addition to any other permit requirement, the Provider shall submit a plan that provides for compliance with all federal, state, and City requirements, including, but not limited to, construction and restoration standards, stormwater quality regulations, traffic control regulations, and the Texas Professional Engineering Practices Act Any plans submitted shall be detailed to the satisfaction of the City's Director of Engineering and Transportation If any work is to be done by an independent contractor or subcontractor, the Provider must identify, in writing, that contractor and any subcontractors to the City before a permit is issued For the permit, the City may require information as necessary so that adequate notification, communication, and points of contact for the Provider or its contractor may be established (h) In the event Provider undertakes emergency repairs, excavations, or paving cuts for which a permit has not been obtained that result in any disruptions to the public's or the City's use of Public Rights -of -Way, the Provider shall deliver notice to the City of such repairs, excavations, or paving cuts no later than the end of the next working day following initiation of the work In the event such emergency repairs, excavations, or paving cuts are required on an Page 11 arterial street during peak traffic periods, i e , 7-9 a in or 4-6 p in Monday through Friday, the Provider shall verbally notify the Denton Police Department at the time of commencement of such work (i) Erosion and sedimentation during construction or repair work shall be controlled in accordance with the ordinances and regulations of the City generally applicable to excavations within the City, as amended or revised from time to time Permanent erosion control shall be required upon completion of all work Effective environmental and pollution control measures shall be maintained in accordance with City, State, and Federal requirements 0) When Provider shall make or cause to be made excavations or shall place obstructions in any Public Rights -of -Way, the Provider shall place, erect, and maintain barriers and lights to identify the location of such excavations or obstructions, consistent with the Manual of Uniform Traffic Control Devices, and as further directed by the City and the Texas Department of Transportation (k) Work done in the Public Rights -of -Way shall be planned and executed to minimize time of construction and disruption to traffic and the general public The work site must be rendered safe to traffic and the general public in accordance with normal utility practice prior to workers leaving the site each day Once started, work must proceed without interruption to completion, including restoration and clean-up (1) Except for emergencies as determined by the Provider or under special circumstances as determined by the City's Director of Engineering and Transportation, work hours for work in the Public Rights -of -Way will be 8 am to 5 p in or darkness, whichever occurs first, for all areas other than along major thoroughfares Work on or along major thoroughfares will be limited to the hours of 9 am to 4 pin unless otherwise specifically permitted by the City Page 12 (m) Provider shall have the authority to tnm trees upon and overhanging Public Rights -of -Way (including sidewalks and driveways), after providing written notice to affected customers, so as to prevent the branches of the trees from coming into contact with the wires and cables of the Provider, provided that all trimming is done in compliance with the National Electric Safety Code and City Code provisions, and at no expense to the City (n) The City shall have the right to deny a permit for any proposed new or additional facilities within the Public Rights -of -Way if it determines there is insufficient space to accommodate the facilities, or if the Provider, or its subcontractors, are not in compliance with existing City ordinances and standards or previously issued permits (o) Provider and City may agree that City shall perform paving cuts, excavation, or other construction or repairs in the Public Rights -of -Way on behalf of Provider, at such reasonable price and upon such reasonable terms as Provider and City may agree In the event of such agreement, then with respect to the work to be done by City pursuant to that agreement, the provisions of this Section shall not apply to Provider Section 26-245 Joint use of Boles. trenches, and conduits (a) In order to reduce the number of poles and to avoid public safety concerns and visual clutter, the Provider may be required to attach its wires to poles owned and maintained by another Person, or to permit the wires of another public utility to be attached to the poles owned and maintained by the Provider, upon reasonable terms and for just compensation for any additional facilities of Provider that may be required (b) In the event that Provider and such other public utility are unable to agree on terms and compensation, or if same are not otherwise resolved or determined within a reasonable time, then disputes anstng under this Section shall be resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association Arbitration shall be Page 13 by a panel of three arbitrators one selected by the Provider, one selected by the other public utility, and one experienced in the matters at issue and selected by the Provider and the other public utility in accordance with the Commercial Arbitration Rules of the American Arbitration Association The decision of the arbitrator shall be final and binding as to any matters submitted under this Section All costs and expenses incurred in connection with any such arbitration proceeding (including reasonable attorneys' fees) shall be bome by the party against which the decision is rendered, or, if no decision is rendered, such costs and expenses shall be borne equally by the Provider and the other public utility If the arbitrator's decision is a compromise, the determination of which party or parties bears the costs and expenses incurred in connection with any such arbitration proceeding shall be made by the arbitrator on the basis of the arbitrator's assessment of the relative merits of each party's position The parties shall instruct the arbitrator to render its decision no later than ninety (90) calendar days after submission of the dispute (c) The Provider may require such other public utility to furnish evidence of adequate insurance and provide indemnification covering the Provider, and adequate bonds covering the performance of such other public utility attaching to the Provider's poles, as a condition precedent to giving permission to such other public utility to attach wires to Provider's poles Provider's requirements for such insurance and indemnity must be reasonable (d) Provider shall not be required to attach its wires to the poles of another public utility or to permit the wires of another public utility to be attached to Provider's poles if it can be satisfactorily shown (i) that Provider will be subjected to increased risks of interruption of service or liability for accidents, Page 14 (n) the poles, wires, and appurtenances of such other public utility are not of the character, design, or construction required by, or are not being maintained in accordance with modern electric utility practice, or (in) sufficient clearance or space is not available on the pole Wires shall be located on poles in compliance with applicable safety standards and shall not interfere with the erection, replacement, operation, repair, or maintenance of the wires and appurtenances of any other public utility occupying the poles (e) Provider's distribution feeder lines may be constructed as overhead lines, but such lines shall be designed and constructed in an "armless" manner, to the extent such design and construction is technically feasible, with no more than two (2) such lines per Right -of -Way "Armless" type construction means cross -arms up to four (4) feet in length phase to phase, or two (2) feet in length pole to phase (f) Provider may be required by the City to share trench space with another public utility for the placement of cables, wires, or ducts underground Compensation to the Provider as well as the terms of sharing trench space shall be resolved as provided for in subsection (a) of this Section Also, Provider may require insurance and indemnification, as provided in subsection (a) of this Section Ducts, cables, or wires shall be placed in trenches in compliance with applicable safety standards and in a manner that does not interfere with Provider's cables or wires, as provided in subsection (b) of this Section (e) Nothing herein shall modify or abrogate the power of the City to require any holder of a franchise from the City to allow use of its facilities by any other holder of a City franchise under Article XIII of the City Charter Page 15 Section 26-246 Conformance with public improvements Whenever, by reason of any changes, without limitation, of any street, sidewalk, curb, alley, highway or public way, or in the location or manner of constructing any water or wastewater pipe, gas pipe, storm sewer, or other underground or overhead structure for any governmental purpose whatsoever, other than siting of competitive electric facilities owned by the City, it shall be deemed necessary by the City to remove, alter, change, adapt, or conform the underground or overhead facilities of Provider located in the Public Right -of -Way, such alterations or changes shall be made as soon as practicable by Provider when ordered in writing by the City, without claim for reimbursement or damages against the City Provided, however, if said requirements impose a financial hardship upon the Provider, the Provider shall have the right to present alternative proposals for the City's consideration The City shall not require Provider to remove its facilities entirely from a street, sidewalk, curb, alley, highway, or public way unless suitable alternatives are available for relocation of its facilities ction 26 247 Provider to maintain and file mans and assist in determining Provider's use of Public Rights -of -Way. (a) The Provider shall cooperate with the City at all times by providing timely and complete information regarding the location of its conduits, poles and facilities, along with such maps, plats, construction documents and drawings as may exist or as may be created from time to time Provider and City shall cooperate and coordinate their efforts to make the most efficient and economical use of their respective facilities The Provider shall at all times keep on file in the office of the City's Director of Engineering and Transportation ("Director"), a current map, in a digital format compatible with the City's Geograpluc Information System ("G I S "), of the Provider's Electric Utility System within the City As extensions or modifications of facilities are made from time to time, the Provider shall periodically file with the Director updated digital Page 16 maps showing those extensions or modifications so that the City will have current and accurate information regarding the location and characteristics of the System The digital information shall include the location of the facilities comprising the Systems, and all other information maintained by the Provider pertaining to the City's administration of the franchise, including the depth of any buried transmission or distribution lines, to the extent such information exists If such information is not available in digital format, a hard copy shall be provided A hard copy of the digital maps may be requested by the City and shall be provided by the Provider if so requested (b) The City will use the information provided by Providers pursuant to this Section only for the purposes of protection and management of the Public Rights -of -Way The data base provided by Provider in its entirety will be treated as competitive information and will not be disclosed in whole or in part, except that portions of such data may be provided to third parties as necessary for efficient management of the Public Rights -of -Way Section 26-248 Work by others (a) The City reserves the right to lay, and permit to be laid, storm sewer, gas, water, wastewater and other pipelines, cables, and conduits, and to do and permit to be done any underground or overhead work that may be necessary or proper in, across, along, over, or under the Public Rights -of -Way occupied by the Provider The City also reserves the right to change, in any manner, any curb, sidewalk, highway, alley, public way or street In permitting such work to be done, the City shall not be liable to the Provider for any damage so occasioned, but nothing herein shall relieve any other Person from responsibility for damages to the facilities of Provider (b) In the event that the governing body of the City authorizes someone other than the Provider to occupy space under the surface of the Public Rights -of -Way, such grant shall be subject to the rights herein granted or heretofore obtained by the Provider In the event that the Page 17 governing body of the City shall close or abandon any Public Right -of -Way that contains existing facilities of the Provider, any conveyance of land within such closed or abandoned Public Right -of -Way shall be subject to the rights herein granted or heretofore obtained by Provider Provided, however, that the Provider may be ordered to vacate any land so conveyed, if an alternate route is practicable, and if the Provider is reimbursed by the Person to whom the property is conveyed for the reasonable costs of removal and relocation of its facilities (c) If the City shall require Provider to adapt or conform its Electric Utility System, or in any way or manner to alter, relocate, or change its property to enable any other Person to use, or use with greater convenience, said Public Right -of -Way, Provider shall not be bound to make any such changes until such other Person (except the City) shall have undertaken, with good and sufficient bond, to reimburse the Provider for any cost, loss, or expense which will be caused by, or anse out of such change, alteration, or relocation of Provider's property Provided, however, that the City shall never be liable for such reimbursement due to Provider from such Person Section 26-249 Accounting. audit, inspection (a) The Provider shall maintain, at its local office or principal place of business within the State, adequate books and records relating to the performance of its obligations under this Ordinance and its franchise The Provider shall maintain its books and records in a form and with coding sufficient to identify its Gross Revenues through December 31, 2001 and, beginning on January 1, 2002 and to the extent such information is available to Provider under applicable regulatory provisions, the number of kWh of electricity delivered by the Provider to each retail customer whose consuming point of delivery is located within the City, intending thereby to separately identify these relevant records of its System in the City in order to facilitate the City's review of the franchise fee payments The records of the Provider applicable to its performance Page 18 under this Ordinance and its franchise shall be made available upon not less than ten (10) working days notice for inspection by the City at any time during normal working hours, subject to statutory and regulatory provisions regarding the confidentiality of customer -specific information (b) City may cause, upon reasonable written notice, an audit to be made of the books and records of Provider relating to Provider's performance under this Ordinance and its franchise The omission by the City to exercise its rights to any audit at any time shall not constitute a waiver of such right City shall have the right to select auditors to make the audit Provider shall make available to the auditor personnel and such records as are relevant to such audit, and shall make no charge to the City therefor Provider shall assist the City during any audit conducted under this Ordinance, including answering questions and providing any requested records or information Provider shall endeavor to provide requested records or information within twenty-one (21) calendar days of having received a written request therefor If the Provider cannot so provide such records and information, then on or before such twenty- first day after receiving the request therefor, the Provider shall notify the City or its representative that the requested records and information will be made available within an additional fourteen (14) calendar days, and the information and records shall be so provided The cost of an audit pursuant to this provision shall be borne by the City, unless the audit reveals an underpayment of fees in excess of two percent (2%), in which case the Provider shall pay for the audit (c) Upon request by the City, but no less than annually, the Provider will prepare a statement of its estimate of Provider's Gross Revenue and the number of kWh to be delivered in the City for the period covered by the statement signed by an authorized representative of the Provider, in such reasonable form and detail as City may from time to time prescribe, sufficient Page 19 to show the source and method of calculation of Provider's Gross Revenue The acceptance of any statement or payment shall not estop the City from asserting that the amount paid is not the amount due or from recovering any deficit by any lawful proceeding, including interest (d) In the event the Provider shall be determined to have under -remitted the fee required by this Ordinance, the Provider shall pay, in addition to the underpayments, interest on the underpayments at the rate of ten percent (10%) per annum from the time of the underpayment until payment is made In the event of underpayment of fees, the Provider shall also pay to the City ten percent (10%) of the total underpayment as a penalty for noncompliance with this Ordinance Any penalty of less than One Hundred Dollars ($100 00) shall be waived as a de minimus violation Section 26-250 Penalties (a) For the violation of any of the following provisions of this Ordinance or of its franchise, penalties shall be paid by Provider to the City within fifteen (15) calendar days of written notice of assessment by the City, in addition to any other rights or remedies which the City may have at law or in equity (i) For failure to complete construction in accordance with agreed plans, unless the City specifically approves the delay, Provider shall pay a penalty of One Hundred Dollars ($100 00) per day for each day that the failure continues, or (n) For failure to provide data, documents, reports, or information required to be furnished hereunder to the City, or to reasonably cooperate with the City during an audit required under the terms hereunder, Provider shall pay a penalty of One Hundred Dollars ($100 00) per day for each day the violation occurs or continues, or Page 20 (in) For failure to comply with any financial obligation required herein, Provider shall pay a penalty of One Hundred Fifty Dollars ($150 00) per day for each day that such noncompliance continues, or (iv) Commencing ten (10) calendar days following the adoption of a resolution or an ordinance of the City that finds and determines a failure of Provider to comply with operational or maintenance standards as required by this Ordinance, Provider shall pay a penalty of One Hundred Fifty Dollars ($150 00) per day for each day that such noncompliance continues (b) Prior to imposing a penalty under subparagraphs (1) through (in) above and/or adopting a resolution under subparagraph (iv) above, the City shall give the Provider written notice and a period to cure, not to exceed five (5) working days If the Provider fails to cure the alleged problems within the prescribed time period, the Provider's alleged failure to comply shall be heard at a public meeting of the City Council The Provider shall be given written notice of the public meeting no later than five (5) calendar days prior to the posting date of the agenda for the City Council meeting at which such resolution is scheduled to be considered by the Council The notice to the Provider shall include a list of the failures complained of Provider shall have an opportunity to address the Council at such public meeting Section 26-251 Forfeiture and termination (a) In addition to all other rights and powers retained by the City under this Ordinance or otherwise, the City reserves the right to forfeit and terminate a franchise granted pursuant to the provisions hereof and all rights and privileges of the Provider hereunder, in the event of an uncorrected material breach of its terms and conditions A material breach by Provider for purposes of this Section, shall include, but shall not be limited to the following Page 21 (i) Violation of any material provision of this Ordinance or a franchise granted hereunder, or any rule, order, regulation or determination of the City made pursuant to this Ordinance that is not cured or corrected in accordance with the provisions of this Ordinance, or (n) An attempt by Provider to evade any provision of this Ordinance or its franchise, or to practice any fraud or deceit upon the City or its residents (b) The foregoing matters described in paragraph (a) above shall not constitute a material breach of this Ordinance if the violation occurs without fault of the Provider, or occurs as a result of circumstances beyond Provider's control which could not have been avoided as a result of the exercise of reasonable care Provider shall not be excused by mere economic hardship, or by the misfeasance or malfeasance of its directors, officers, agents, or employees (c) The City shall make a written demand that the Provider comply with any such provision, rule, order, or determination under or pursuant to this Ordinance or its franchise If the violation by the Provider continues for a period of thirty (30) calendar days following such written demand, without the City receiving written proof and substantiation from Provider that the required corrective action has been taken, or is being actively and expeditiously pursued, the City may take under consideration the issue of termination of the franchise of Provider The City shall set a hearing, and shall cause to be served upon Provider, at least fifteen (15) calendar days prior to the date of such hearing, a written notice of intent to request such termination and the time and place of the hearing Public notice shall be given of the hearing and the issue or issues which the City is to consider At said hearing, the governing body of the City shall hear and consider the issue or issues and shall hear any person interested therein At said hearing, the governing body of the City shall determine, in its sole discretion, whether or not any uncorrected violation by the Provider still exists Page 22 (d) If the City shall determine that an uncorrected material violation by the Provider still exists, and was the fault of the Provider, and within its control, and could have been avoided with the exercise of reasonable care, the City may declare the franchise of the Provider forfeited and terminated, or in the alternative, the Council may grant to Provider a further period of time to cure the violation (e) The failure of the City to insist in any one or more instances upon the strict performance of any one or more of the terms or provisions of this Ordinance shall not be construed as a waiver or relinquishment for the future of any such term or provision, and the same shall continue in full force and effect No waiver or relinquishment shall be deemed to have been made by the City unless said waiver or relinquishment is in writing and signed by the City Section 26-252 Other legal remedies (a) Nothing herein contained shall limit or restrict any legal rights that the City may possess ansing from any alleged violation of this Ordinance or its franchise by Provider The City retains all other rights, both legal and equitable, to which it is entitled under the law (b) Nothing herein contained shall limit the Provider's right to appeal a determination, act, or order of the City as provided for by the Constitution and laws of the State of Texas, including the Public Utility Regulatory Act of Texas, as amended, or its successor statute Section 26-253 Legal cgpacity of provider The Provider shall be a legal entity with legal capacity to operate, construct, reconstruct, and maintain an electric transmission and distribution system in the City in its properly certificated service area Page 23 Section 26-254 Governmental immunity All of the provisions contained in this Ordinance are hereby declared to be for a public purpose, and are in the interests of the health, safety, and welfare of the general public Any member of the governing body of the City, or City official or employee charged with the enforcement of this Ordinance, acting for or on behalf of the City in the discharge of his or her official duties, shall not thereby render himself or herself personally liable, and he or she is hereby relieved from any and all personal liability for any damage that might accrue to any person or property as a result of any act required or permitted in the discharge of his or her said duties Section 26-255 Insurance Provider will insure against all the risks undertaken pursuant to its franchise, including the indemnification required in the franchise Such insurance may be in the form of self- insurance to the extent permitted by applicable law, under a Provider -approved formal plan of self-insurance maintained in accordance with sound accounting and nsk-management practices Such insurance coverage or plan of self-insurance is subject to the approval of the Risk Manager of the City, whose approval shall not be unreasonably withheld or delayed A certificate of insurance shall be provided to the City annually, no later than October 1 for each year during the term of Provider's franchise, evidencing such coverage, and additionally within thirty (30) calendar days of any substantial change in the nature of its coverage under this Section Should Provider elect to self -insure, its annual notice to the City shall contain information clearly identifying the process for filing a claim against such coverage Section 26-256. Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Ordinance, or the application thereof to any person or circumstances is held invalid by any court of Page 24 competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions of this Ordinance despite any such invalidity SECTION 3 It is hereby officially found and determined that the meeting at which this Ordinance was passed was open to the public as required by law, and that public notice of the time, place and purpose of said meeting was given as required by law SECTION That this Ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this Ordinance to be published twice in the Denton Record -Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage, and it is accordingly SO ORDAINED PASSED AND APPROVED this the AL day of \12 - 2000 JAC� LLER, MAYOR` ATTEST JENNIFER WALTERS, CITY SECRETARY By � APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By S \Our Documents\0rdmance9\00\E1ectnc ROW and Regulatory Ordinance 012600 doc Page 25