HomeMy WebLinkAbout2001-484FILE REFERENCE FORM 1 2001-484
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Date Initials
Amended by Ordinance No. 2002-202 1 06/18/02 1 ) R
Amended by Ordinance No. 2002-288 1 09/03/02 1 )R
Amended by Ordinance No. 2008-179 1 08/19/08 1 )R
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ORDINANCE NO. AM40.
AN ORDINANCE GRANTING TO TXU GAS DISTRIBUTION, A
DIVISION OF TXU GAS COMPANY, ITS SUCCESSORS AND ASSIGNS,
A FRANCHISE TO FURNISH, TRANSPORT AND SUPPLY GAS TO THE
GENERAL PUBLIC IN THE CITY OF DENTON, DENTON COUNTY,
TEXAS, FOR THE TRANSPORTING, DELIVERY, SALE, AND
DISTRIBUTION OF GAS IN, OUT OF, AND THROUGH SAID
MUNICIPALITY FOR ALL PURPOSES, PROVIDING FOR THE
PAYMENT OF A FEE OR CHARGE FOR THE USE OF THE STREETS,
ALLEYS, AND PUBLIC WAYS, REPEALING ALL PREVIOUS GAS
FRANCHISE ORDINANCES AND ORDINANCES IN CONFLICT
HEREWITH, PROVIDING THAT IT SHALL BE IN LIEU OF OTHER
FEES AND CHARGES, EXCEPTING AD VALOREM TAXES,
PRESCRIBING THE TERMS, CONDITIONS, OBLIGATIONS AND
LIMITATIONS UNDER WHICH SUCH FRANCHISE SHALL BE
EXERCISED, PROVIDING A SAVINGS CLAUSE, A SEVERABILITY
CLAUSE, AND AN EFFECTIVE DATE
WHEREAS, TXU Gas Distribution Company, a division ofTXU Gas Company,
hereinafter referred to as "Company," through a merger with Lone Star Gas Company,
assumed the previous franchise to use and occupy the public rights -of -way and public
property of the City for the purpose of laying, maintaining, constructing, protecting and
operating their system as granted by Ordinance No 82-56, as amended by Ordinance
No 90-108, and
WHEREAS, the previous franchise referred to above expired on August 19,
2001, and
WHEREAS, the Company and the City desire to enter into a new franchise
agreement to authorize the Company, its successors and assigns, the rights to use and
occupy the public rights -of -way and other public property of the City as set forth in the
body of this ordinance, NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION 1 GRANT OF AUTHORITY
(A) The City of Denton, Texas, hereinafter called "City," hereby grants to TXU Gas
Distribution, a division of TXU Gas Company, hereinafter called "Company," its successors
and assigns, privilege and license to use and occupy the present and future Public Rights -of -
Way of the City for the purpose of laying, maintaining, constructing, protecting, operating,
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and replacing the System and all other appurtenantequipmentneeded and necessaryto deliver,
transport and distribute gas in, out of, and through said City and to sell gas to persons, firms,
and corporations, including all the general public, within the City's corporate limits
(B) Said privilege and license being granted by this ordinance is for a term from
August 19, 2001 through December 31, 2011 Provided, however, the Company shall pay the
franchise fee set forth in Section 20 on gross revenues as defined in Section 8 of this ordinance
beginning with the effective date of this ordinance Until that date Company shall continue to
pay revenues based on the franchise fee payment due under the previous franchise which
expired on August 19, 2001
(C) The provisions set forth inthis ordinance represent the terms and conditions under
which the Company shall construct, operate, and maintain the System within the City In
granting this franchise, the City does not in any manner surrender or waive its regulatory or other
rights and powers under and by virtue of the Constitution and statutes of the State of Texas as the
same may be amended, nor any of its rights and powers under or by virtue of present or future
ordinances of the City, and it is expressly provided that nothing herein shall impair the right of
the City to fix, within constitutional and statutory limits, a reasonable price to be charged for
natural gas, or to provide and fix a scale of prices for natural gas, and other charges, to be charged
by Company to residential customers, commercial customers, industrial customers, or to any
combination of such customers, within the territorial limits of the City as same now exist or as
such limits may be extended from time to time hereinafter and to insure the maintenance of
Company's property in good repair throughout the term of this franchise Company, by its
acceptance of this franchise, agrees that all such lawful regulatory powers and rights as the same
may be from time to time vested in the City shall be in full force and effect and subject to the
exercise thereof by the City at any time By entering into this franchise neither Company nor
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City waives any claims or defenses they may have in the litigation styled Cary of Denton, Texas,
et al vs TXU Electric Company, et al, currently pending in the 134°i Judicial District Court of
Dallas County, Texas ("TXU Litigation")
SECTION 2 ACCEPTANCE OF TERMS OF FRANCHISE
(A) The Company shall have thirty (30) days from and after the passage and approval
of the ordinance to file its written acceptance thereof with the City Secretary The effective date
shall be determined in accordance with the requirements of Section 28 and Section 13 01 of the
City Charter
(B) If the Company, its successors and assigns, shall faithfully comply with all the
terms, and faithfully perform all the duties and obligations, and faithfully observe and recognize
all the limitations and regulations contained in this ordinance and in the valid ordinances of the
City relating to the conduct of Company's business adopted hereunder or under the police
powers of the City, then the rights, franchises and privileges herein granted shall extend from the
date of the acceptance of this ordinance by Company through December 31, 2011, otherwise, the
City, after any material breach of the terms of this franchise has been determined by the City
Council of the City, may declare all rights granted hereunder to be abated, forfeited or terminated
in accordance with the termination procedures provided herein
(C) At midnight on December 31, 2011, ALL rights, franchises and privileges herein
granted, unless they have already at that time ceased or been forfeited, shall at once cease and
terminate
SECTION 3 NO THIRD PARTY BENEFICIARIES
This franchise is made for the exclusive benefit of the City and the Company, and
nothing herein is intended to, or shall confer any right, claim, or benefit in favor of any third
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SECTION 4 SUCCESSORS AND ASSIGNS
No assignment or transfer of this franchise shall be made, in whole or in part, without
approval of the City Council of the City The City will grant such approval unless withheld for
good cause Upon approval, the rights, privileges, and franchise herein granted to the Company
shall extend to and include its successors and assigns The terms, conditions, provisions,
requirements and agreements contained in this franchise shall be binding upon the successors
and assigns of the Company
SECTION 5 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
This franchise is granted subject to the laws of the United States of America and its
regulatory agencies and commissions and the laws of the State of Texas, the Denton City Charter
of 1959, as amended, including Article XIII "Franchises" of said Charter, and all other applicable
ordinances of the City of Denton, not inconsistent herewith
SECTION 6 CONFLICTING ORDINANCES
All ordinances and parts of ordinances of the City of Denton, Texas, in conflict with the
provisions of this ordinance are hereby repealed, to the extent of that conflict only
SECTION 7 NOTICES
Any notices required or desired to be given from one party to the other party to this
ordinance shall be in writing and shall be given and shall be deemed to have been served and
received (whether actually received or not) if (t) delivered in person to the address set forth
below, (11) deposited in an official depository under the regular care and custody of the United
States Postal Service located within the confines of the United States of America and sent by
certified marl, return receipt requested, and addressed to such party at the address hereinafter
specified, or (ni) delivered to such party by couner receipted delivery Either party may
designate another address within the confines of the continental United States of America for
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notice, but until written notice of such change is actually received by the other party, the last
address of such party designated for notice shall remain such party's address for notice
CITY
City Manager
City of Denton
215 E McKinney
Denton, Texas 76201
COMPANY
Town Manager
TXU Gas Distribution
100 W Mulberry
Denton, Texas 76201
For the purposes of this ordinance, the following terms, phrases, words, and their
derivations shall have the meanings given herein When not inconsistent with the context, words
in the present tense include the future, 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
(A) "City" shall mean the City of Denton, Texas
(B) "Company" shall mean TXU Gas Distribution, a division of TXU Gas Company
(C) "Gross Revenues" shall mean all revenue derived or received, directly or
indirectly, by the Company from or in connection with the operation of the System and for its
services and related services provided by the Company to residential, commercial, industrial,
governmental, municipal and all other customers located within the corporate limits of the City,
save and except sales to the Spencer Generating Station as indicated in subsection 8(C)(5)(e)
The revenues included in Gross Revenues shall include without limitation
(1) all revenues received by the Company from the sale of gas within the City
to all customers within the City,
(2) all revenues received by the Company from the transportation of gas,
including third party natural gas, through the System of Company to residential,
commercial, industrial and transportation service customers and all other customers
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within the City,
(3) to the extent not included in paragraphs (1) and (2), above, the total value
of gas, including third party natural gas, which shall include all affiliate revenues,
transported in Denton through the System of Company to all customers within the City,
and
(4) other revenues of the Company derived from lawful charges (a) to
connect gas service within the City, (b) to disconnect gas service within the City, and (c)
to handle returned checks from customers within the City and other such service charges
and charges as may, from time to time, be authorized in the rates and charges on file with
the City
(5) Gross revenues shall include, regardless of the outcome of the TXU
litigation mentioned in Section 1(C), all transportation service, industrial and
miscellaneous revenues Gross revenues shall not include (a) the revenue of any person
including without limitation, a TXU affiliate, to the extent such revenue is already
included in Gross Revenues of the Company (b) taxes imposed by law on customers that
the Company is obligated to collect and which the Company passes on, in full, to the
applicable tax authority or authorities other than sales taxes, (c) any investment income
earned by the Company (d) sales taxes, fee on fee revenues or monies received by
Company from customers as a contribution in aid of construction unless these revenues
are found by a final judgment of the Court or through a settlementof the TXU htigationto
be included within "Gross Revenues", (e) revenues derived from sales to the Spencer
Generating Station (f) the parties agree that at the exclusive option of the City, the
definition of "Gross Revenues" under this franchise will be amended to include all
additional revenues which are found by a final judgment of the court or through a
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settlement of the TXU litigation to be included or includable within "Gross Revenues"
The parties further agree to amend this franchise to adopt and approve rate ordinances
and tariffs as necessary in order to add any such additional revenues
(D) "Person" shall mean any natural person, or any association, firm, partnership,
joint venture, corporation, or other legally recognized entity, whether for -profit or not -for -profit,
but shall not, unless the context clearly intends otherwise, include the City or any employee,
agent, servant, representative or official of the City
(E) "Public Right -of -Way" shall mean public streets, alleys, highways, bridges,
easements, public places, public thoroughfares, grounds, sidewalks and all other public real
property 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
(F) "System" shall mean all of the Company's pipes, pipelines, gas mams, laterals,
feeders, regulators, meters, fixtures, connections, and any other equipment or instrumentalities
used in or incident to providing delivery, transportation, distribution, supply and sales of natural
gas for heating, lighting, power, and any other purpose for which natural gas may now or
hereafter be used, located within the corporate limits of the City
(G) "TXU Affiliate" shall mean in relation to the Company, a Person that controls, is
controlled by, or is under common control with the Company As used in this definition, the
term "control" means, with respect to a Person that is a corporation, the ownership, directly or
indirectly, of more than 50% of the voting securities of such person or, with respect to a Person
that is not a corporation, the power to direct the management or policies of such Person, whether
by operation of law, by contract or otherwise
(H) Transportation Service Customer shall mean any person or entity for which
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Company transports gas through the pipeline system of Company within the City to customers for
delivery or consumption within the City
SECTION 9 PARAGRAPH HEADINGS CONSTRUCTION
The paragraph headings contained in this ordinance are for convenience only and shall in
noway enlarge or limit the scope or meaning of the various and several paragraphs hereof Both
parties have participated in the preparation of this ordinance and this ordinance shall not be
construed either more or less strongly against or for either party
SECTION 10 CONDITIONS OF OCCUPANCY
(A) All construction and the work done by Company, and the operation of its
business, under and by virtue of this ordinance, shall be in conformance with the ordinances,
rules and regulations of City now in force and that may hereafter be adopted by the City relating
to the use of its Public Rights -of -Way and grounds of the City
(B) Company shall lay, maintain, construct, operate, and replace its pipes, mains,
laterals and other equipment so as to interfere as little as possible with traffic The placement of
all mains, pipes, laterals, and other appurtenant equipment shall be subject to the approval of the
City Manager or Ins designee prior to construction which approval shall not unreasonably be
withheld Reproducible copies of all maps showing the location of all mains, pipes, laterals, and
other appurtenant equipment shall be furnished to the City Manager
(C) In determining the location of Company's pipeline within the City, Company
shall minimize interference with then -existing underground structures of City or other utility
franchisees Likewise, in determining the location of the facilities of the City and other utility
franchisees within the City, City shall minimize interference with existing facilities of Company
and shall request other utility franchisees to minimize interference with existing facilities of
Company
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(D) When Company makes or causes to be made excavations or places or causes to be
placed obstructions in any Public Right -of -Way or other public place, the public shall be
protected by barriers and lights placed, erected, marked and maintained by Company in
accordance with applicable state and federal requirements Company shall repair, clean up, and
restore to as good a condition as before commencement of work, all Public Rights -of -Way or
other public places disturbed during the construction and repair of its gas distributing system In
the event the Company fails to restore the Public Rights -of -Way or public places to as good a
condition as before the commencement of the work and within a reasonable time, the City may
restore or maintain same, after giving the Company thirty (30) days' written notice, provided
however that if the Company is proceeding diligently to restore the property, the time for
restoration shall be extended for such time as is necessary for the Company to complete the
restoration If the Company fails to restore the Public Rights -of -Way or public places
appropriately, the Company will receive a bill for the cost of the City repairing same The
Company shall, within thirty (30) days after receiving such bill, pay the actual cost for such
service
After the third such instance of a failure, and in each instance of failure thereafter, to
restore the Public Right of Way or public places appropriately in any calendar year, the City may
include a penalty of up to ten percent (10%) of the City's cost of repairs Any penalty of less than
One Hundred Dollars ($100 00) shall be waived as de minimus
(E) If City abandons any Public Right -of -Way in which Company has facilities,
Company shall have the right to continue its use of the former Public Right -of -Way upon
reasonable conditions to be determined by the City
(F) The Company will insure against all the risks undertaken pursuant to this franchise
including general liability insurance with a combined single limit of $1,000,000 per occurrence
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Such insurance may be in the form of self-insurance to the extent permitted by applicable law,
under a Company 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 Company's franchise, evidencing such coverage,
and additionally within thirty (30) calendar days of any substantial changes in the nature of its
coverage under this Section Should Company elect to self -insure, its annual notice to the City
shall contain information clearly identifying the process for filing a claim against such coverage
The City acknowledges that Company is self -insured or desires the ability to be self -
insured Nothing herein prevents the City from agreeing to substitute self-insurance coverage for
the previously listed coverage requirements, upon proof of such self-insurance submitted to the
City, and such agreement shall not be unreasonably withheld
SECTION 11 MAPPING OF DISTRIBUTION SYSTEM
The Company shall within one (1) year after the granting of this franchise file with the
City Manager or his designee a map or maps in convenient book, atlas form, or digital format (if
available and requested by City) or shall correct and bring up to date any map or maps now on
file (including providing the map or maps in digital format, if available and requested by the
City) The maps shall show with reasonable detail Company's entire gas distributing system in
the City, as same then exists, which shall include the locations and dimensions and depths, to the
extent reasonably possible, of all mains, pipes, manholes, connections with premises and other
apparatus employed by Company, and which map shall be corrected and brought up to date by
Company annually The information provided pursuant to this paragraph shall be based on
Company' s original installation specifications unless otherwise noted It is further agreed by
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City and Company that provision of this information does not relieve the Company, City or other
third parties from an obligation to utilize all appropriate procedures to locate underground
facilities, including the obligation to notify a notification center established pursuant to Tex
Utility Code Chapter 251, prior to conducting work in the right of way such as excavating,
drilling, underground boring, jacking, or open cutting
SECTION 12 RELOCATION OF COMPANY EQUIPMENT
(A) If the City in constructing its sewers, streets, utilities or other public works should
require any mains, pipes or other System facilities or equipment to be shifted or relocated, such
mains, pipes or other System equipment shall be timely shifted or relocated by Company at its
own expense as and when required by the City The City shall not require Company to remove
the facilities entirely from a street, sidewalk, curb, alley, highway, or public way unless suitable
alternatives are available for relocation of its facilities
(B) When the Company is required by the City to remove or relocate its mains,
laterals, and other System facilities or equipment to accommodate construction of Public Faghts-
of -Way or other public or City -owned facilities and the Company is eligible for reimbursement or
surcharge under federal, state, county, local or other programs for reimbursement of costs and
expenses incurred by the Company as a result of the ordered relocation, and the application for
reimbursement or surcharge is required by statute, written governmental policies, or rules to be
filed and processed by the City, the City shall make reasonable efforts to timely and promptly
notify the Company of any application deadlines of which it may be aware, and Company costs
and expenses shall be included in any application by City for reimbursement, if Company submits
its costs and expense documentation to the City prior to the filing of the application Nothing
herein shall be construed to prohibit, alter or modify in any way the right of the Company to seek
or recover a surcharge pursuant to Section 104 112 of the Texas Utilities Code
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SECTION 13 LAYING OF LINES IN ADVANCE OF PAVING
(A) Whenever the City shall conclude to pave any Public Right -of -Way in which
mains and pipes already exist or in which Company may propose to lay its mains or pipes, the
Company may be required, at no expense to the City, in advance of such paving, to renew such
mains or pipes, if defective or inadequate in size pipes and to lay service lines, or renew same, if
inadequate in size or defective, to the property lines where buildings are already located without
regard to the number of customers along the line
(B) The Company shall be given one hundred twenty (120) days' wntten notice of the
intention of the City to pave any such Public Right -of -Way and specifying the new locations for
the Imes Within one hundred twenty (120) days from receipt of such notice, the Company shall
initiate work and thereafter proceed in a workmanlike manner to completion of the necessary
work If the Company should fail to so proceed, and such street or alley is thereupon paved,
except in an emergency, the Company shall for two (2) years thereafter not be allowed to cut such
pavement or excavate in such paved street or alley for any purpose, except by written permission
of the City Manager under such terms and conditions as the City Manager may reasonably
subscribe
SECTION 14 CONFLICTING FRANCHISES
If the Company, in laying its pipes, shall come into conflict with the rights of any other
person or corporation having a franchise from the City, the City Council shall decide all
questions concerning the conflicting rights of the respective parties, and shall determine the
location of the structures of the said parties and shall reconcile their differences The Company
records shall be available to City for review and inspection for compliance with this franchise at
reasonable times and upon reasonable notice
SECTION 15 INSTALLATION OF METER
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Company shall install upon or immediately adjacent to the premises of each residential
customer a meter of standard type for the purpose of accurately measuring the gas consumed by
such customer If a meter is installed in or near the Public Rights of Way, Company agrees to
discuss with the City Engineer or his delegate the aesthetics of the meter placement If agreement
cannot be reached, the Company may install standard equipment
SECTION 16 EXTENSIONS FOR RESIDENTIAL CUSTOMERS
Company shall be required to extend distribution mains in any street up to one hundred
(100) feet for any one residential customer, in accordance with its extension policy that has been
approved by the City, provided, however, if the anticipated connected load is calculated to
prohibit Company a reasonable return on its investment as may be allowed by statute, law, or
regulation and the provision of service is not economically feasible, the cost of such extension
shall be borne by customer Company shall not be required to extend transmission mains in any
Public Rights -of -Way within City or to make a tap on any transmission main within City unless
Company agrees to such extension by a written agreement between Company and a customer
SECTION 17 DUTY TO SERVE
The Company hereby agrees that it will not arbitrarily refuse to provide service to any one
that it is economically feasible for the Company to serve In the event that a party is refused
service, said party may request a hearing before the City Council of the City, said hearing to be
held within forty-five (45) days from the date of the request for hearing The Council may order
the Company to provide service, amend the franchise or take any other action necessary to bring
the Company into compliance with the intent of the Council in granting this franchise, including
termination or forfeiture of the franchise in accordance with Section 25 The Council shall render
its opinion at its next regular meeting but in no event shall it be required to act in less than seven
(7) days
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SECTION 18 RATES
Company shall furnish reasonably adequate service to the public at reasonable rates and
charges therefor and Company shall maintain its System in good order and condition Such rates
shall be established in accordance with all applicable statutes and ordinances Company shall
maintain on file with the City copies of its current tariffs, schedules or rates and charges,
customer service provisions, and line extension policies The rates and charges collected from its
customers in the City shall be subject to revision and change by either the City or Company in the
manner provided by law
SECTION 19 INSTALLATION CHARGES, DEPOSITS AND OTHER
COMPANY CHARGES
(A) In addition to the rates charged for gas supplied and transported, Company may
make and enforce reasonable charges, rules and regulations for service rendered in the conduct of
its business in accordance with its tariffs, rate schedules, service policies, and Quality of Service
Rules as approved by the City and filed with the Texas Railroad Commission Company may
require, before famishing service, the execution of a contract for such service
(13) Company shall be entitled to require each and every customer, before service is
commenced or reinstated, to satisfactorily establish credit pursuant to the Company's Quality of
Service Rules as maybe in effect during the term of this franchise Said deposit shall be retained
and refunded in accordance with such Quality of Service Rules and shall bear interest, as
provided in Section 183 001 through 183 006 Tex Util Code, (Vernon's 2001), including any
and all future amendments to said Article Upon termination of service, Company shall be
entitled to apply said deposit, with accrued interest, to any indebtedness owed Company by the
customer making the deposit
(C) Company shall have the right to contract with each customer with reference to the
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installation of, and payment for, any and all of the gas piping from the connection thereof with the
Company's main in the right-of-way to and throughout the customer's premises Company shall
own, operate and maintain all service Ines, which are defined as the supply lines extending from
the Company's main to the customer's meter where gas is measured by Company The customer
shall own, operate, and maintain all yard lines and house piping, which are defined as supply lines
extending from the point of connection with the Company's customer meter where gas is
measured to the point of connection with customer's house piping
SECTION 20 PAYMENTS TO THE CITY
(A) In consideration of the privilege and license granted by City to Company to use
and occupy the Public Rights -of -Way in the City for the conduct of its business, Company, its
successors and assigns, agrees to pay and City agrees to accept such franchise fees in the amount
and manner described herein Such payments shall be made on a quarterly basis, on or before the
forty-fifth (45th) day following the end of each calendar quarter The franchise fee shall be a sum
of money that shall be equivalent to four percent (4%) of the quarterly Gross Revenues, as
defined in Section 8(C), received by the Company from the sale of gas to its customers, including
but not limited to residential, commercial, industrial, governmental, municipal and transportation
service customers within the corporate limits of City The first payment hereunder shall be due
and payable on or before April 1, 2002, and shall be based upon Company r s Gross Revenues
received during the calendar year ending December 31, 2001 and shall be payment for the rights
and privileges granted hereunder during the period of January 1, 2001 through December 31,
2001 Subsequent payments shall be due and payable quarterly thereafter on or before the fifteen
(15') day of the second month following the end of the calendar quarter upon which the payment
is based and shall be payment for the rights and privileges granted hereunder during the calendar
quarter in which payment is made, that it, the quarterly payments shall be as follows
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Payment
Due Date
May 15
Aug 15
Nov 15
Feb 15
Quarter Upon Which
Payment Is Based
Jan 1— Mar 31
Apr 1 — June 30
July 1 —Sept 30
Oct 1 - Dec 31
Quarter For Which
Payment Is Made
Jan I —Mar 31
Apr 1 —June 30
July 1 - Sept 30
Oct I -Dec 31
Provided, however, if Company, prior to April 1, 2002, can provide the City with sufficient
evidence to demonstrate that Company's predecessor —Lone Star Gas Company —had been
prepaying its franchise fee under the francluse entered into by the parties under Ordinance No 82-
56 so that each payment constituted a payment for the rights and privileges granted during the
calendar year in which the payment is made, the parties agree to amend this franchise to revise the
quarterly payment schedule to reflect and account for the prepayment
(B) The value of gas transported by Company for Transport Customers shall be
determined as set forth in this paragraph Should the transportation customer fail or refuse to
disclose or furnish such purchase price to Company, Company shall establish same by utilizine
110% of the Houston Ship Channel index of prices for large packages of gas published each
month in Inside FERC's Gas Market Report (or a successor publication or another publication
asreed upon by the City and Company) for the period of time the transportation service is
performed Company agrees to give to City, upon Request, access to confidential information so
removed in order for the City to verify the accuracy of the information provide to the City under
the provisions of this paragraph Failure or inability of Company to collect the 4% franchise fee
from its Transport Customers does not relieve it of its responsibility and obligations to remit
payment in the amount of 4% of value of such gas to the City
(C) The aforesaid franchise fee shall be in lieu of any and all other additional
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occupation taxes, municipal license, permit and inspection fees, street or alley rentals or charges,
and all other and additional charges, levies, fees, and rentals of whatsoever kind or character
which City may now impose or hereafter levy and collect from Company or Company's agents,
save and except the Company's obligation to reimburse the City for street repairs and regulatory
expenses in excess of $25,000 under Section 103 022 of the Gas Utility Regulatory Act (Tex
Util Code Section 103 022) or any successor law, and the payment of ad valoremtaxes, sales and
use taxes, special taxes, and assessments for public improvements, and any fees associated with
the use of City -owned poles, which are not affected by Company's payment of franchise fees
hereunder Franchise fees are payable by Company to City in addition to general or special ad
valorem taxes which City is authorized to levy and impose upon real and personal property, sales
and use taxes, and the special taxes and assessments and fees excepted above Should City not
have the legal power to agree that the payment of the foregoing sums of money shall be in lieu of
occupation taxes, licenses, fees, street or alley rentals or charges, easements or franchise taxes,
then City agrees that it will apply so much of said sums of money paid as may be necessary to
satisfy Company's obligations, if any, to pay such occupation taxes, licenses, charges, fees or
rentals
(D) If the Company fails to pay when due any payment provided for in this Section,
Company shall pay such amount plus interest at the current prime rate per annum, from such due
date until payment is received by City The reimbursement of the City by Company for hiring
experts in connection with the rate making process pursuant to state law for which the Company
may be legally liable shall not be deducted from the gross receipts payment
(E) Company shall notify the City of the identity of any customer of Company that
changes from a tariffed rate to a contract rate with forty-five (45) days of such change
SECTION 21 BOOKS AND RECORDS
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(A) Company agrees that at the time of each quarterly payment, Company shall also
submit to the City a sworn statement showing (i) its Gross Revenues for the preceding calendar
quarter from the sale of gas to its customers, including but not limited to residential, commercial,
industrial, governmental and municipal customers, within said corporate limits, including the
amount of revenues received by Company for the transportation of gas, (n) the coded identity of
Company's transportation service customers during the preceding calendar quarter, and (in) the
value, volume, and transport fee of gas transported during the proceeding calendar quarter for
such transportation service customers, calculated in accordance with Section 20(B) above Upon
request, City shall have access at Company's office to the actual identity of Company's Transport
Customers and their suppliers as long as such information shall remain confidential, and no
copies of such information may be made
(B) City may, if it sees fit, have the books and records of Company examined by a
representative of said City to ascertain the correctness of the sworn reports agreed to be filed
herein If such an examination reveals the Company has underpaid the City, then City shall
provide Company written notification from City regarding the existence of such underpayment,
Company shall remit the amount of underpayment to City within 10 days
SECTION 22 RESERVATION OF RIGHTS: GENERAL
(A) The City reserves to itself the right and power at all times to exercise, in the
interest of the public and in accordance with state law, regulation and control of Company's rates
and services to insure the rendering of efficient public service at reasonable rates, and the
maintenance of Company's System in good repair throughout the terms of this franchise
(B) The rights, privileges, and franchises granted by this ordinance are not to be
considered exclusive, and City hereby expressly reserves the right to grant, at any time, like
privileges, rights, and franchises as it may see fit to any other person or corporation for the
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purpose of furnishing gas for light, heat, and power and for City and the inhabitants thereof
(C) City expressly reserves the right to own and/or operate its own system for the
purpose of transporting, delivering, distributing, or selling gas to and for the City and inhabitants
thereof and may, in accordance with applicable state law and the Denton City Charter, purchase
this franchise from the Company
SECTION 23 RIGHT TO INDEMNIFICATION AND TO BE HELD HARMLESS
The Company shall indemnify, defend and hold harmless the City and all of its present,
future and former agents, employees, officials and representatives in their official, individual and
representative capacities from and against any and all liability created by, arising from or in any
manner relating to the construction, operation, maintenance, repair or replacement of the
Company's System and facilities or the use of the Public Rights -of -Way or in any way growing
out of the granting of this franchise, either directly or indirectly, or by reason of any act,
negligence, or nonfeasance of the contractors, agents or employees of the Company As used
herein, the term "liability" includes, but is not limited to, any and all claims, demands, causes of
action, judgments, liens, and expenses (including attorney's fees, whether contractual or
statutory), costs and damages (whether common law or statutory, and whether actual, punitive,
consequential or incidental) of any conceivable character, due to or arising from injuries to
persons (including death) or to property (both real and personal) The indemnity provided herein
expressly includes any liability arising through the doctrines of strict or products liability and any
liability arising under the constitutions of the United States or Texas Upon the commencement
of any suit or proceeding at law against the City relating to or covering any matter covered by this
indemnity, the City shall tender the defense of said suit or proceeding at law to the Company, and
the Company shall thereupon at its own cost and expense defend, compromise, or settle the same
Any settlement involving a claim or cause of action against the City shall, unless otherwise
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agreed to by the City, release the City from any and all liability as a result of said claim or cause
of action. This indemnity and hold harmless agreement shall not apply to any situation to the
extent the city is solely liable for the actions, suits or claims of injury or damage by reason of
City's sole negligence
SECTION 24 RENEGOTIATION
If either City or Company requests renegotiation of any term of this franchise ordinance,
Company and City agree to renegotiate in good faith revisions to any and all terms of this
franchise ordinance If the parties cannot come to agreement upon any provisions being
renegotiated, then the existing provisions of the franchise ordinance will continue in effect for the
remaining term of the franchise
SECTION 25 TERMINATION
(A) In addition to any rights set out elsewhere in this ordinance, the City reserves the
right to terminate the franchise and all rights and privileges pertaining thereto, in the event that
the Company violates any material provision of the franchise or the Company becomes insolvent,
or is adjudged bankrupt
(B) Procedures for Termination
(1) The City may, at any time, terminate this franchise for a continuing
material violation by the Company of any of the substantial terms hereof In such event,
the City shall give to Company written notice, specifying all grounds on which
termination or forfeiture is claimed, by registered mail, addressed and delivered to the
Company at the address set forth in Section 7 hereof The Company shall have sixty (60)
days after the receipt of such notice within which to cease such violation and comply with
the terns and provisions hereof In the event Company fails to cease such violation or
otherwise comply with the terms hereof, then Company's franchise is subject to
20
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termination under the following provisions Provided, however, that, if the Company
commences work or other efforts to cure such violations within thirty (30) days after
receipt of wntten notice and shall thereafter prosecute such curative work with reasonable
diligence until such curative work is completed, then such violations shall cease to exist,
and the franchise will not be terminated
(2) Termination shall be declared only by written decision of the City Council
after an appropriate public proceeding whereby the Company is afforded the full
opportunity to be heard and to respond to any such notice of violation or failure to
comply The Company shall be provided at least ten (10) days pnor written notice of any
public hearing concerning the termination of the franchise In addition, ten (10) days
notice by publication shall be given of the date, time and place of any public hearing to
interested members of the public, which notice shall be paid for by the Company
(3) The City, after full public heanng, and upon finding matenal violation or
failure to comply, may terminate the franchise or excuse the violation or failure to
comply, upon a showing by the Company of mitigating circumstances or upon a showing
of good cause of said violation or failure to comply as may be determined by the City
Council
(4) Nothing herein stated shall prevent the City from seeking to compel
compliance by suit in any court of competent j unsdiction if the Company fails to comply
with the terms of this franchise after due notice and the providing of adequate time for
Company to comply with said terms
SECTION 26 SEVERABILITY
This ordinance and every provision hereof, shall be considered severable, and the
invalidity or unconstitutionality of any section, clause, provision, or portion of this ordinance
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shall not affect the validity or constitutionality of any other portion of this ordinance If any term
or provision of this ordinance is held to be illegal, invalid or unenforceable, the legality, validity
or unenforceability of the remaining terms or provisions of this ordinance shall not be affected
thereby
SECTION 27 NO WAIVER
Either City or the Company shall have the right to waive any requirement contained in this
ordinance, which is intended for the waiving party's benefit, but, except as otherwise provided
herein, such waiver shall be effective only if in writing executed by the party for whose benefit
such requirement is intended No waiver of any breach or violation of any term of this ordinance
shall be deemed or construed to constitute a waiver of any other breach or violation, whether
concurrent or subsequent, and whether of the same or a different type of breach or violation
SECTION 28 EFFECTIVE DATE
This franchise shall be effective only after (a) its final passage by the City Council, (b)
receipt by the City of Company's acceptance as provided by Section 2 herein, and (c) final
publication as required by law
The ordinance shall be passed by a majority vote of the entire City Council at three regular
meetings of Council The City Secretary shall publish, at the Company's expense, the complete
text of this ordinance in a newspaper of general circulation Publication shall take place once each
week for three consecutive weeks in the official newspaper published in the City of Denton The
ordinance shall not become effective until thirty days after its final passage in accordance with the
City Charter
The above -referenced actions having taken place, the effective date of this ordmancewill
be January 17, 2002
PRESENTED, AND GIVEN first reading on the 18 day of September , 2001, at a
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regular meeting of the City Council of the City of Denton, Texas, and given second reading,
passed and approved on the 18 day of December 2001, by a vote of 5 ayes and 0
noes at a regular meeting of the City Council of the City of Denton, Texas
ATTEST
JENNIFLR WALTERS, CITY SECRETARY
BY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
BY
The City of Denton, Texas, acting herem by its duly constituted authorities, hereby
declares the foregoing Ordinance passed on first reading on the 18'h day of September, 2001, and
passed on second reading on the 16 day of October , 2001, and passed on third
reading on the 18 day of December and being finally effective as of the
17 day of January
/s/ Abstained
/s/-�—
Eulme Brock, Mayor
Mark
/s6
Pfd
Rom Be sley, Council tuber
Perry
Council
/s/
Raymond k6dmon, Councif Member
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S \Our Docurcenb\Ordlnancea\utlTW Gas Franchise 2W I doe
The above and foregoing ordinance read, adopted on first reading and passed to second reading
by the following votes, this the 18'" day of September, 2001, at a regular session of the City
Council
Euline Brock, Mayor, abstained from voting
Mark Burroughs, Council Member, voting aye
Rom Beasley, Council Member, voting aye
Perry McNeill, Council Member, voting aye
Jane Fulton, Council Member, voting aye
Mike Phillips, Council Member, voting aye
Raymond Redmon, Council Member, voting aye
The above and foregoing ordinance read, adopted on second reading and passed to third reading
by the following votes, this the 16' day of October, 2001, at a regular session ofthe City Council
Eulme Brock, Mayor, abstained from voting
Mark Burroughs, Council Member, absent
Rom Beasley, Council Member, voting aye
Perry McNeill, Council Member, voting aye
Jane Fulton, Council Member, voting aye
Mike Phillips, Council Member, voting aye
Raymond Redmon, Council Member, voting aye
The above and foregoing ordinance read, adopted on third reading and passed by the following
votes, this the 18th day of December, 2001, at a regular session of the City Council
Eulme Brock, Mayor, abstained from voting
Mark Burroughs, Council Member, voting aye
Rom Beasley, Council Member, voting aye
Perry McNeill, Council Member, voting aye
FM
5 \Our Document\Ordlnanana\01\TXG Gm Franchise W doe
Jane Fulton, Council Member, voting aye
Mike Phillips, Council Member, voting aye
Raymond Redmon, Council Member, absent
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ACCEPTANCE
WHEREAS, the City Council of the City of Denton, Texas, did on the I At1, day of
December _ , 2001, enact an Ordinance entitled
AN ORDINANCE GRANTING TO TXU GAS DISTRIBUTION, A DIVISION OF TXU GAS
COMPANY, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO FURNISH,
TRANSPORT AND SUPPLY GAS TO THE GENERAL PUBLIC IN THE CITY OF DENTON,
DENTON COUNTY, TEXAS, FOR THE TRANSPORTING, DELIVERY, SALE, AND
DISTRIBUTION OF GAS IN, OUT OF, AND THROUGH SAID MUNICIPALITY FOR ALL
PURPOSES, PROVIDING FOR THE PAYMENT OF A FEE OR CHARGE FOR THE USE OF
THE STREETS, ALLEYS, AND PUBLIC WAYS, REPEALING ALL PREVIOUS GAS
FRANCHISE ORDINANCES AND ORDINANCES IN CONFLICT HEREWITH, PROVIDING
THAT IT SHALL BE IN LIEU OF OTHER FEES AND CHARGES, EXCEPTING AD
VALOREM TAXES, PRESCRIBING THE TERMS, CONDITIONS, OBLIGATIONS AND
LIMITATIONS UNDER WHICH SUCH FRANCHISE SHALL BE EXERCISED, PROVIDING
A SAVINGS CLAUSE, A SEVERABILITY CLAUSE, AND AN EFFECTIVE DATE
WHEREAS, said Ordinance was on the 18th day of December , 2001, duly
approved and subscribed by the Mayor Pro Tem of said City, and the seal of said City was thereto
affixed and attested to by the City Secretary,
NOW, THEREFORE, TXU Gas Distribution, a division of TXU Gas Company, hereby in
all respects ACCEPTS, APPROVES AND AGREES TO said Ordinance, and the same shall
constitute and be a binding contractual obligation of TXU Gas Distribution, a division of TXU
Gas Company, and of the City, without waiver of any other remedy by TXU Gas Distribution, a
division of TXU Gas Company, or the City, and TXU Gas Distribution, a division of TXU Gas
Company does hereby file this, its written acceptance, with the City Secretary of the City of
Denton, Texas, in her office.
DATED this the __J�day of 00)�
TX , a division of
TXU GAS COMPANY
ATTEST
B(JJ4�—
• - vat, no I
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unt ro a��e �1 �� w,y .
.;
S \Our D umew\Ordmmu,\01\TXU G. F,.,h,,e 2001 dw
rk rp qe {r Ar rk
C PTAN FILED in the Office of the City Secretary of the City of Denton, Texas, this the
day of 20(a
e ifer Itcrs, City Secretary
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