1999-373 NOTE Amended by Ordinance No. 2000-041.
ORDINANCE NO q¢-c~ ~
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 C~ty 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 pubhc health, safety and welfare considerations associated with the provision of
this servme, comply with uniform regulations governing such use, and
1060\08\991011 ROW ordinance I
WHEREAS, the C~ty of Denton finds ~t m the pubhc interest to retmn control over the
use of Pubhc R~ghts-of~Way by prowders of Electric Utility Servmes to ensure against
~nterference w~th the pubhc convemance, to promote aesthetm considerations, to promote
planned and efficient use of hnnted Raght-of-Way space and to protect the pubhc ~nvestment ~n
R~ght-of-Way, and
WHEREAS, Article XIII of the C~ty Charter of the C~ty of Denton authorizes the C~ty to
proh~ba the use of any street, alley, htghway, boulevard or grounds of the C~ty by any pubhc
utd~ty without first obtmnlng the consent of the City expressed by ordinance and paying
compensation as prescribed by the C~ty, and upon such terms and conditions as the C~ty shall
prowde, and
WHEREAS, the C~ty of Denton finds that the granting of franchises for such use of the
Pubhc R~ghts-of-Way under the prows~ons of th~s Ordinance to prowders of Electric Utility
Service ~s the best means of assunng that the above-described ~nterests of the C~ty are promoted,
and
WHEREAS, the protection of the pubhc health, safety and welfare wdl 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 C~ty of Denton Code of Ordinances respecting Utdlt~es, ~s
hereby amended to add the following prows~ons, at Artmle VII thereof, entitled "Umform
Regulations to Govern the Use and Occupancy of Pubhc Rights-of-Way by Prowders of Electric
Service m the C~ty of Denton," by adding Sections 26-240, et seq thereto to read as follows
1060\08\991011 ROW ordinance 2
Se¢tlon 26-240 Defimt~ons
For the purposes of th~s Ordinance and for franchises granted hereunder, the following
terms, phrases, words, abbrevmt~ons and their derivations shall have the meamng given here~n
When not inconsistent with the context, words used in the present tense include the future tense,
words ~n the plural number include the s~ngular number and words ~n the s~ngular number
~nclude the plural number The word "shall" is always mandatory and not merely directory
Words not defined shall be g~ven their common and ordinary meaning These defimt~ons shall
be subject to rews~on after review by the C~ty to account for changes necessitated by retail
competition ~n the electric Utdlty ~ndustry commencing January 1, 2002
(a) "C~ty" shall mean the Caty of Denton, Texas, a home rule municipal corporation
(b) "Corporate hmlts" shall mean the corporate hm~ts of the City as smd hm~ts are
now estabhshed or as such hrmts may hereafter be extended
(c) "Customer" shall mean any person, firm, partnership, assocmt~on, corporatmn,
company or orgamzat~on of any k~nd served by a Provider hereunder within the C~ty
(d) "Electric Utthty Servme" shall ~nclude all sales of electricity, net of customer
credits, to all customers w~th~n the corporate hm~ts of the C~ty
(e) "Electric Utthty System" or "System" shall mean an elecmc power system
~nstalled and operated m the C~ty which shall ~nclude, but not be limited to, the generation,
transmission and d~strlbutlon factht~es, equipment and adm~mstrat~ve services necessary to
prowde electric service for any use to the City and such extensions, addit~ons 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
w~thin the City
(g) "Person" shall mean any person, firm, partnership, assomanon, corporation,
mumclpal corporation, company or organization of any kind
(h) "Provider" shall mean any Person who owns, operates, or otherwise controls an
Electric Utlhty System for the provision of Electric Utthty Service within the City
(0 "Public Raghts-of-Way" shall mean all of the public streets, alleys, highways, and
pubhc thoroughfares of the City, as they now exist or may be hereafter constructed, opened, laid
out, or extended wlttun the present limits of the City, or m such temtory as may hereafter be added
to, consolidated, or annexed to the City
Section 26-241 Franchise featured
(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 prowslons 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 Pubhc
Rights-of-Way for the purpose of constructing, erecting, owning, suspending, lnstalhng,
extending, renewing, repalnng, mamtalmng, operating and conducting within the c~ty 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 factht~es and equipment needed and necessary for the maintenance and operation of an
Electric Utlhty System
1060\08\991011 ROW ordinance 4
(b) A Provider seeking to obtam a franchise shall make application therefor w~th the
City Such application shall consist of completing the Application Form provided by the City
and filing the completed form with the City, along w~th the required Application Fee of $500
Upon receipt of the completed Application Form and the Application Fee, and after reasonable
opportumty for review of same, the City shall, by ordinance, grant a franchise to the applicant as
provided here~n
(c) A franchise granted hereunder shall be hrmted to the prowslon by Provider of
Electric Utility Servmes In the event Provider desires to use its ex~stlng facdltles, or construct
new faclhtles, in order to provide telecommunications service, local lnterconnectlon, 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
add~tional and separate anthonzatlon from the City for such activities to be conducted ~n the
Public Rights-of-Way prior to their commencement, as provided by state law, lncludmg the
payment of appropriate fees therefor
(d) Franchises granted hereunder shall cover the geographical area of the entire
corporate limits of the C~ty, but shall not be construed to expand or limit a Provider's service
area granted by the Public Utthty Commission of Texas The C~ty hm~ts are subject to
expansion or reduction by annexation and contraction of municipal boundaries In accordance
w~th state law and regulations of the Pubhc 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 ~ncluded within the C~ty If the C~ty
approves any expansion or reduction of its corporate limits by annexation or contraction, the City
w~ll prowde written notice to the Provider The Provider must revise ~ts 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 s~xty (60) calendar days after receipt of notme
(e) Franchises may be granted for a fixed term, not to exceed twenty (20) years
(f) A franchise shall not be assignable w~thout the express, advance, written consent
of the governing body of the C~ty, which consent shall not be unreasonably vathheld, such
consent to be evtdenced by an ordinance that fully remtes the terms and conditions, ~f any, upon
which such consent to assign ~s g~ven
Section 26-242 Comnensat~on to be prod to the C~t¥
(a) As compensation for the rights and pnwleges conferred by a franchise granted
pursuant to th~s Ordinance, Prowder shall be reqmred to pay to the City, each quarter, a sum of
money equal to four pement (4%) of the Promder's Gross Revenues as defined herein
(b) Each quarterly payment reqmred by th~s 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 bus~ness day of the first month following the end
of the preceding quarter by electromc funds transfer or by other means that provide lmmedmtely
avmlable funds to the Cay on the day the payment ~s due These payments (insofar as the C~ty
has legal power so to prowde and agree) shall be ~n heu of, and shall be accepted as payment for
all of Prowder's obhgat~ons to pay other charges for the rental of the Pubhc R~ghts-of-Way,
franchise taxes, or other taxes of every k~nd, save and except ad valorem taxes, sales and use
taxes, spemal taxes and assessments for pubhc ~mprovements, and any fees assocmted w~th the
use of C~ty-owned poles
(c) The compensation payable to the C~ty by Prowders as consideration for their use
and occupancy of Pubhc Pdghts-of-Way may change for Providers w~th franchises extending
1060\08\991011 ROW ordinance 6
beyond January 1, 2002, in accordance with Section 33 008, Public Utihty Regulatory Act of
Texas ("PUPA") (Tex Utll Code {}33 008) For "electric utihties," as defined In PUPA, the
City shall determine the franchise fee to be prod by Providers using the criteria set forth in
{}33 008, PUPA The new franchise fee shall be effective as of January l, 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 condmts, use by Cay of conduits and Doles
(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
(0 Consult and plan together regarding projects to be undertaken pursuant to
this section The Provider shall provide non-binding "ballpark" cost estimates for
planmng 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 wlthm the time requested by the City,
(11) Review the City's undergrounding 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
undergrounding,
1060\08\991011 ROW ordinance 7
(m) Review the status of technology in the field of electric undergroundang,
(m) Review the construction and operation and mmntenance costs of
underground hnes versus overhead hnes, and
Ov) Rewew pubhc projects antm~pated by the City
Such meetings shall be held to achteve a contanmng program for the orderly
undergroundmg of electric lanes in the City
(c) When undertaking a project of undergroundlng pursuant to subsecuon (b) of this
sectxon, the C~ty and the Provider shall work with other uuhtaes or companies that have their
hnes overhead to have all hnes undergrounded as part of the same project When other utllmes
or compames are placing their hnes underground, the Prowder shall cooperate with these utilities
and compames and undertake to underground Provlder's facflmes as part of the same project
where feasible, provided, however, the Prowder shall have no such obhgataon absent
reimbursement of the Provader's cost by the Cxty
(d) The Promder shall use its best efforts to coordinate its anstallauon of new
underground faclht~es wah preexisting underground facilities of other companies
(e) If Provider, an ~ts sole d~scretion, determines that it has spare ducts xn ars
underground condmts, or spare pans, crossarms, or space on any of as poles not then necessary
for the provision of Electric Utility Service, and not needed for future antmapated load growth or
emergencies, Provider shall permit the City to use one such duct an each condmt, or reasonable
spaces on poles, or both, for the City's pohce and fire alarm wares, traffic control wares or cable,
fiber-optic lanes connecting C~ty faeflmes, or other similar, appropriate non-commercial,
governmental uses, provided that such use by the City as an compliance w~th the Nattonal Electric
Safety Code and at the expense of the City If Provider constructs or extends addmonal eondmts
1060\08\991011 ROW ordinance 8
or erects additional poles, the C~ty may require the Provider to provide one such duct in each
condmt, or reasonable space on poles, or both, for the City's own use as aforesaid In e~ther
event, the C~ty shall pay Provider a fair rental therefor
(f) City shall not sell, lease or otherwise make available ~ts rights to use Provlder's
faclhtles 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 C~ty from using the services of a third party commercial entity to
manage or operate the C~ty's facilities on behalf of the City, so long as no resale or other
commercial use of such fae~htles shall occur
(g) Provider is not authorized to hcense or lease to any person or entity or any other
pubhc ut~hty, any right to occupy or use the C~ty's Pubhc Rights-of-Way for the conduct of any
private business or pursmt
Segtlon 26-244 Construction and maintenance, excavation
(a) The construction, maintenance, and operation of Provlder's Electric Utlhty
System shall be subject to lawful pohce regulations and ordinances of the City, including, but not
hmlted to, Sections 25-71, et seq, Denton Code of Ordinances The placement of poles,
excavatloas, and other construction in the streets, alleys, and other Pubhc Rights-of-Way, shall
interfere as httle as practicable w~th the use of the streets, sidewalks, and alleys, and w~th the use
of private, property The C~ty shall have the r~ght and power, at any time to order and require
Provider to remove and abate any pole, w~re, cable, or other structure that ~s tumecessar~ly
dangerous to life or property In the event the Provider, after not~ce, falls 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 w~thout compensation or hablhty 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 Rtghts-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 C~ty 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 repmr 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 ~n 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, lmpmrments, or
substandard condition in the Public Raghts-of-Way caused by the work of the Provider or
resulting from Pmvlder's activities in the Public Raghts-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 requmng adequate security therefore, to assure appropriate planning, construction,
inspection, completion and restoration of such projects
(f) Engmeenng plans for those projects involving slgmficant 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 C~ty
(g) Except for emergency repairs or emergency paving cuts, a permit shall be
obtained from the City prior to the lmtlatlon 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 prowdes for compliance with all
federal, state, and City requirements, including, but not limited to, construction and restoration
standards, stormwater quahty regulations, traffic control regulations, and the Texas Professional
Engineering Practices Act Any plans submitted shall be detailed to the satisfaction of the
Director of Englneenng 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 notfficat~on, communication, and points of contact for
the Provider or its contractor may be established
1060\08\991011 ROW ordinance 11
(h) In the event Prowder 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 Pubhc Raghts-of-Way, the Provider shall deliver not,ce to the C~ty of such repairs,
excavations, or pawng cuts no later than the end of the next working day following initiation of
the work In the event such emergency repmrs, excavations, or pawng cuts are required on an
arterial street dunng peak traffic periods, t e, 7-9 a m or 4-6 p m Monday through Friday, the
Provider shall verbally notify the Denton Pohce Department at the time of commencement of
such work
(l) Erosion and sedimentation during constmctmn 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 rewsed from time to time Permanent erosion control shall be
required upon completion of all work Effective environmental and pollution control measures
shall be maintained ~n accordance with City, State, and federal reqmrements
0) When Provider shall make or cause to be made excavations or shall place
obstructions in any Pubhc Rights-of-Way, the Provider shall place, erect, and maintain bamers
and hghts to ~dent~fy the location of such excavations or obstructions, consistent w~th the Manual
of Uniform Traffic Control Dewces, and as further directed by the City and the Texas
Department of Transportation
(k) Work done ~n the Public Raghts-of-Way shall be planned and executed to
mlmm~ze t~me of construction and d~srupt~on to traffic and the general pubhc The work s~te
must be rendered safe to txaffie and the general pubhc ~n accordance with normal utd~ty practme
prior to workers leawng the site each day Once started, work must proceed w~thout interruption
to completion, ~nclud~ng 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 D~rector of Eng~neenng and Transportation, work hours for
work in the Pubhc R~ghts-of-Way will be 8 a m to 5 p m or darkness, whichever occurs first,
for all areas other than along major thoroughfares Work on or along major thoroughfares will
be hm~ted to the hours of 9 a m to 4 p m unless otherwise specifically permitted by the C~ty
(m) Prowder shall have the authority to trim trees upon and overhanging Public
Rights-of-Way (including sidewalks and driveways), after providing written not,ce to affected
customers~ so as to prevent the branches of the trees from coming into contact with the w~res and
cables of the Prowder, provided that all trimming is done in comphance with the National
Electric Safety Code and C~ty Code prowslons, and at no expense to the C~ty
(n) The City shall have the right to deny a permit for any proposed new or additional
faclhtles w~thm the Public Pdghts-of-Way if it determines there is insufficient space to
accommodate the facthtles, or ~f the Prowder, or its subcontractors, are not ~n compliance with
existing C~ty ordinances and standards or previously ~ssued permits
(o) Prowder and C~ty may agree that City shall perform paving cuts, excavation, or
other construction or repairs ~n the Pubhc Rights-of-Way on behalf of Prowder, at such
reasonable price and upon such reasonable terms as Provider and City may agree In the event of
such agreement, then w~th respect to the work to be done by City pursuant to that agreement, the
prowslons of this Section shall not apply to Prowder
SeCtion 26-245 Jmnt use of poles, trenches, and conduits
(a) In order to reduce the number of poles and to avoid public safety concerns and
wsual clutter, the Provider may be reqmred to attach its w~res to poles owned and maintained by
another Person, or to permit the wires of another pubhc utthty to be attached to the poles owned
1060\08\991011 ROW ordinance 13
and mamtmned by the Provider, upon reasonable terms and for just compensation for any
additional faeihties of Provider that may be required
(b) In the event that Provider and such other public utihty are unable to agree on
terms and compensation, or if same are not otherwise resolved or determined w~thln a reasonable
t~me, then d~sputes arising under this Section shall be resolved by arbitration In accordance with
the Commercml Arbitration Rules of the American Arbitration Association Arbitration shall be
by a panel of three arbitrators one selected by the Prowder, one selected by the other public
utlhty, 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 (~n¢luthng reasonable attorneys' fees) shall be borne by the party agmnst which the
decision ~s rendered, or, if no decision is rendered, such costs and expenses shall be borne
equally by the Prowder and the other pubhc utlhty 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 bas~s of the
arbitrator's assessment of the relative merits of each party's position The parties shall instruct
the arbitrator to render ~ts decision no later than ninety (90) calendar days after submission of the
thspute
(c) The Provider may reqmre such other public utthty to furmsh evidence of adequate
insurance and prowde indemmficat~on covenng the Prowder, and adequate bonds covenng the
performance of such other pubhc 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
Prowder'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 pubhc
Utdlty or to permit the wires of another public utility to be attached to Provlder's poles if It can
be satisfactorily shown
(1) that Provider will be sub.leered to increased risks of interruption of service
or habIhty for acmdents,
(n) the poles, wire, and appurtenances of such other pubhc utility are not of
the character, design, or construction required by, or are not being
mmntalned in accordance with modern electric utility practice, or
(m) sufficient clearance or space is not available on the pole
Wires shall be located on poles in eomphance 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) Provlder's d~stributlon feeder lines may be constructed as overhead hnes, but such
hnes 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 l~ght-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 C~ty to share trench space with another public
Utdlty for the placement of cables, wires, or ducts undergrotmd Compensation to the Provider as
well as the terms of sharing trench space shall be resolved as prowded for in subsection (a) of
this Section Also, Provider may reqmre ~nsurance and indemnification, as provided in
1060\08\991011 ROW ordinance 15
subsection (a) of thts Sectton Ducts, cables, or wtres shall be placed ~n trenches tn comphance
w~th apphcable safety standards and tn a manner that does not interfere wtth Provtder's cables or
wires, as provided In subsecuon (b) ofth~s Section
(e) Nothing herein shall modify or abrogate the power of the City to reqmre any
holder of a franchise from the C~ty to allow use of ~ts facdtt~es by any other holder of a Ctty
franchise under Article XIII of the City Charter
Section 26-246 Conformance with public improvements
Whenever, by reason of any changes, wtthout hmttat~on, of any street, sidewalk, curb,
alley, htghway or pubhc way, or tn the location or manner of constructing any water or
wastewater ptpe, gas ptpe, storm sewer, or other underground or overhead structure for any
governmental purpose whatsoever, other than stttng of compettttve electric faclhttes owned by
the Ctty, ~t shall be deemed necessary by the Ctty to remove, alter, change, adapt, or conform the
underground or overhead facthttes of Provider located tn the Pubhc Rtght-of-Way, such
alterattons or changes shall be made as soon as practmable by Provider when ordered tn wnttng
by the City, without claim for reimbursement or damages agatnst the Cny Provtded, however, ~f
said reqmrements ~mpose a financml hardship upon the Provtder, the Provider shall have the
right to present alternative proposals for the Ctty's constderaUon The City shall not reqmre
Provtder to remove its facthttes enttrely from a street, s~dewalk, curb, alley, highway, or pubhc
way unless statable alternattves are avmlable for relocation of ns facdtt~es
S~ct~on 26-247 Provider to maintain and file maps and assist in determtmng Provlder's
u~e of Pubhc Rmhts-of-Wa¥
(a) The Prowder shall cooperate with the Cny at all times by providing ttmely and
complete tnformatlon regarding the location of its condmts, poles and facdltles, along wtth such
maps, plats, constmctton documents and drawings as may ernst or as may be created from ttme
1060\08\991011 ROW ordinance 16
to t~me Provider and City shall cooperate and coordinate their efforts to make the most efficient
and economical use of their respective facdmes The Provider shall at all t~mes keep on file in
the office of the Director of Engmeenng and Transportation a current map, in a d~g~tal format
compatible with the C~ty's Geographxc Information System ("G I S "), of the Provlder's Electric
Utlhty System within the City As extensions or modfficat~ons of facilities are made from time
to time, the Provtder shall penodmally file with the Director updated digital maps showing those
extensions or modfficat~ons so that the City will have current and accurate information regarding
the location and charactenstms of the System The d~gltal information shall include the location
of the facilities comprising the Systems, and all other information maintained by the Provider
pertalmng to the C~ty's administration of the franchise, ~nclud~ng the depth of any buried
transmission or distribution hnes, to the extent such information exists If such lnformauon is
not avmlable ~n d~g~tal format, a hard copy shall be provided A hard copy of the d~gaal maps
may be requested by the C~ty and shall be provided by the Provider if so requested
(b) The C~ty w~ll 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
prowded by Prowder m its entirety will be treated as competitive information and will not be
disclosed ~n whole or in part, except that portions of such data may be provided to third part~es as
necessary for efficient management of the Pubhc Rights-of-Way
Section 26-248 Work by others
(a) The C~ty reserves the right to lay, and permit to be lind, storm sewer, gas, water,
wastewater and other p~pe 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 Raghts-of-Way occupred by the Provider The C~ty 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 reheve 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 ts 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, smd Pubhc 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 Provlder's property Prowded,
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 mantaln, at its local office or principal place of business
within the State, adequate books and records relating to the performance of its obhgatlons under
1060\08\991011 ROW ordinance 18
th~s Ordinance and its franchise The Prowder shall mmntmn its books and records ~n a form and
w~th coding sufficient to ~dentffy ~ts Gross Revenues through December 31, 2001 and, beg~nmng
on January 1, 2002 and to the extent such ~nformat~on ~s avadable to Prowder under apphcable
regulatory prows~ons, the number of kWh of electrm~ty dehvered by the Prowder to each retail
customer whose consuming point of dehvery ~s located w~th~n the C~ty, intending thereby to
separately ~dent~fy these relevant records of~ts System ~n the C~ty ~n order to facd~tate the C~ty's
review of the franchise fee payments The records of the Prowder apphcable to ~ts performance
under th~s Ordinance and ~ts franchise shall be made avaxlable upon not less than ten (10)
working days not,ce for ~nspect~on by the C~ty at any t~me dunng normal working hours, subject
to statutory and regulatory prows~ons regarding the confidentmhty of customer-specffic
~nformanon
(b) City may cause, upon reasonable written notice, an auda to be made of the books
and records of Prowder relating to Prowder's performance under th~s Ordinance and its
franchise The onnss~on by the C~ty to exercise ~ts rights to any audit at any t~me shall not
constitute a woaver of such right C~ty shall have the right to select auditors to make the audit
Prowder shall make avmlable to the auditor personnel and such records as are relevant to such
audit, and shall make no charge to the C~ty therefor Prowder shall assist the C~ty dunng any
audit conducted under th~s Ordinance, including answering questions and prowd~ng any
requested records or ~nfonnat~on Prowder shall endeavor to provide requested records or
~nformat~on w~th~n twenty-one (21) calendar days of hawng received a written request therefor
If the Prowder cannot so prowde such records and ~nformat~on, then on or before such twenty-
first day after rece~wng the request therefor, the Prowder shall not~fy the C~ty or ~ts
representative that the requested records and ~nformat~on wdl be made avadable w~th~n an
1060\08\991011 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 Provlder'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 prod 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 often 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 mlmrnus
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 fil~een (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
(1) For failure to complete construction in accordance w~th 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
fmlure continues
(n) For failure to provide data, documents, repons, or ~nformatlon required to
be furnished hereunder to the City, or to reasonably cooperate with the
City during an audit reqmred 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
(ln) For fadure to comply with any financial obligation required herein,
Provider shall pay a penalty of One Hundred F~fty 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 wath operational or maintenance standards as required by this
Ordinance, Prowder shall pay a penalty of One Hundred F~fty Dollars
($150 00) per day for each day that such noncompliance continues
(b) Prior to imposing a penalty under subparagraphs (1) through (iii) above and/or
adopting a resolnt~on 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 pubhc meeting no later than five (5) calendar days prior to the posting date of the agenda for
1060\08\991011 ROW ordinance 21
the C~ty Council meeting at which such resolution is scheduled to be considered by the Council
The notice to the Provider shall include a hst of the failures complained of Provider shall have
an opportumty to address the Council at such public meetmg
Section 26~251 Forfeiture and tenmnatlon
(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 prowsions hereof and all rights and pnwleges of the Provider hereunder, m the
event of an uncorrected material breach of ~ts terms and conditions A material breach by
Prowder for purposes ofth~s Section, shall include, but shall not be hunted to the following
(1) Violation of any materml 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 m
accordance with the prows~ons of this Ordinance, or
(n) An attempt by Prowder to evade any provision of th~s Ordinance or mrs
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 th~s Ordinance ff 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 Prowder 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
prowslon, rule, order, or determmatlon under or pursuant to th~s Ordinance or its franchise If
the wolatlon 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 rece~wng written proof and substantmt~on from Prowder that
the reqmred corrective action has been taken, or is being actively and exped~tiously pursued, the
City may take under consideration the issue of termination of the franchise of Provider The C~ty
shall set a heanng, and shall cause to be served upon Prowder, at least fifteen (15) calendar days
prior to the date of such hearing, a written notme of intent to request such termination and the
t~me and place of the hearing Public notme shall be g~ven of the heanng and the ~ssue or ~ssues
which the City is to consider At smd hearing, the governing body of the C~ty shall hear and
consider the issue or issues and shall hear any person ~nterested there~n At smd heanng, the
governing body of the C~ty shall determine, m ~ts sole discretmn, whether or not any uncorrected
violation by the Prowder still exists
(d) If the C~ty shall detenmne that an uncorrected material wolat~on by the Provider
stxll exists, and was the fault of the Prowder, and w~thln its control, and could have been avoided
with the exem~se of reasonable care, the C~ty may declare the franchise of the Prowder forfeited
and terminated, or in the alternative, the Council may grant to Prowder a further period of time
to cure the violation
(e) The failure of the City to ~nsist ~n 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 m full force and effect No wmver or rehnqmshment shall be deemed to
have been made by the City unless smd wmver or rehnqmshment is ~n writing and signed by the
C~ty
1060\08\991011 ROW ordinance 23
Segtlon 26-252 Other legal remedies
(a) Noflung herein contmned shall limit or restrict any legal rights that the City may
possess arising from any alleged violation of th~s Ordinance or its franchise by Provider The
City retains all other rights, both legal and eqmtable, to whmh ~t ~s entitled under the law
(b) Nothing here~n contained shall hmlt the Provlder's right to appeal a
determmatmn, act, or order of the Ctty as provided for by the Constitut~on and laws of the State
of Texas, including the Pubhc Utility Regulatory Act of Texas, as amended, or its successor
statute
Sectton 26-253 Legal cat~ae~tv oforowder
The Prowdar shall be a legal entity w~th legal capacity to operate, construct, reconstruct,
and maintain an electric transmissmn and d~stnbutlon system in the City m its properly
certificated service area
Secuon 26-254 Governmental lmmumtv
All of the provisions contained ~n th~s Ordinance are hereby declared to be for a public
purpose, and are ~n the interests of the health, safety, and welfare of the general public Any
member of the govermng body of the C~ty, or Cay official or employee charged with the
enforcement of flus Ordinance, acting for or on behalf of the City ~n the discharge of his or her
officml duties, shall not thereby render hxmself or herself personally liable, and he or she is
hereby relieved from any and all personal habthty for any damage that might accrue to any
person or property as a result of any act reqmred or permitted in the d~scharge of his or her said
duties
1060\08\9~ 1011 ROW ordinance 24
SeCtion 26-255 Insurance
Provider wall insure agmnst all the risks undertaken pursuant to its franchise, including
the andemifieation required m 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 an accordance with sound accounting and risk-management practices
Such insurance coverage or plan of self-insurance as 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 Provader's franchise, evidencing such coverage, and additionally within thirty (30)
calendar days of any substantial change an the nature of its coverage under this Section Should
Provider elect to self-insure, ~ts annual notice to the City shall contain Information clearly
identifying the process for fihng a clmm against such coverage
Section 26-256 Severabiht¥
If any section, subsection, paragraph, sentence, clause, phrase or word in th~s Ordinance,
or the application thereof to any person or e~rcumstances is held invalid by any court of
competent jnrasdlctlon, 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
as accordingly SO ORDAINED
1060\08\991011 ROW ordinance 25
SECTION III It is hereby officmlly found and determined that the meetings at which th~s
Ordinance was passed were open to the pubhc as reqmred by law, and that public notice of the
t~me, place and purpose of smd meetings was g~ven as reqmred by law
PASSED AND APPROVED this the/~ ~7~day of ~4q~ ~.ff.// ,1999
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APP~VE;' AlTO LEGAL FOR~
HERBERT L PROUTY, CITY ATTORNEY
1060\08\991011 ROW ordinance 26
ORDINANCE N0
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 PROVDERS 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 1N THE
AMOUNT OF $150 00 EACH, FOR EACH VIOLATION THEREOF, PROVIDING FOR
TWO PENALTIES IN THE AMOUNT OF $10000 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 ~t ~n the pubhc interest to prowde that every entity
using the Pubh¢ R~ghts-of-Way for the prows~on of Electric Utility Service shall, because of the
Page 1
ovemd~ng pubhc health, safety and welfare considerations assoemted w~th the provtslon of thls
service, comply w~th umform regulations governing such use, and
WHEREAS, the City of Denton finds it m the public interest to retmn control over the
use of Public Pdghts-of-Way by providers of Electric Utlhty Services to ensure against
interference with the public convemence, to promote aesthetic considerations, to promote
planned and effiment use of hm~ted Pdght-of-Way space and to protect the public investment in
Pdght-of-Way, and
WHEREAS, Article XIII of the C~ty Charter of the City of Denton anthonzes the City to
prohibit the use of any street, alley, lughway, boulevard or grounds of the C~ty by any public
utlhty wathout first obtalmng the consent of the C~ty expressed by ordinance and paying
compensation as prescribed by the C~ty, and upon such terms and conditions as the C~ty shall
provide, and
WHEREAS, the City of Denton finds that the granting of franchises for such use of the
Pubhc lhghts-of-Way under the prows~ons of th~s Ordinance to providers of Electric Utility
Service ~s the best means of assunng that the above-described interests of the C~ty are promoted,
and
WHEREAS, the protectlon of the pubhc 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
ET~ That tbas Ordinance expressly amends and supersedes Ordinance No 99-
373, prevaously enacted by the Denton Cxty Council on the 12th day of October, 1999
T~ That Chapter 26 of the City of Denton Code of Ordinances respecting
Utd~t~es, ~s hereby amended to add the following provisions, at Arhcle VII thereof, entitled
"Uniform Regulations to Govern the Use and Occupancy of Pubhc Pdghts-of-Way by Providers
Page 2
of Electric Servme m the C~ty of Denton," by addxng Sections 26-240, et seq thereto to read as
follows
Section 26-240 Defimtlons
For the purposes of thxs Ordinance and for franchises granted hereunder, the following
terms, phrases, words, abbrewatxons and their derivations shall have the meamng gxven here~n
When not inconsistent wxth the context, words used m the present tense ~nclude the future tense,
words m the plural number include the singular number, and words xn the singular number
include the plural number The word "shall" ~s always mandatory and not merely directory
Words not defined shall be gxven their common and ordxnary meanxng These definltxons shall
be subject to rews~on after rewew by the Cxty to account for changes necessitated by retml
competxt~on m the electric utd~ty industry commencing January 1, 2002
(a) "Cxty" shall mean the Cxty of Denton, Texas, a home role mummpal corporatmn
(b) "Corporate hm~ts" shall mean the corporate hmlts of the Cxty as smd hm~ts are
now estabhshed or as such hm~ts may hereafter be extended
(c) "Customer" shall mean any person, firm, partnership, assocmtlon, corporation,
company or orgamzatlon of any kind served by a Pmwder hereunder w~tban the C~ty
(d) "Electric Utxl~ty Servme" shall include all sales of electnmty, net of customer
credits, to all customers w~ttun the corporate hmas of the C~ty
(e) "Electric Utflaty System" or "System" shall mean an electric power system
xnstalled and operated m the City whmh shall include, but not be limited to, the generation,
transm~sston and dxstnbut~on facfittaes, eqmpment and adm~mstrat~ve servmes necessary to
provide electric servme for any use to the C~ty and such extensions, addxt~ons or reductxons as
may hereafter be made
Page 3
(f) "Gross Revenues" shall mean all revenues received by the Provtder from the
provis~on of Electric Utthty Service wtth~n the corporate hm~ts of the C~ty to all customers
w~thln the C~ty
(g) "Person" shall mean any person, firm, parmersh~p, assoctat~on, corporation,
mummpal corporation, company or organization of any k~nd
(h) "Prowder" shall mean any Person who owns, operates, or otherwise controls an
Electric Utfltty System for the provlston of Elecmc Utdtty Service w~tban the C~ty
(0 "Pubhc R~ghts-of-Way" shall mean all of the public streets, alleys, highways, and
pubhc thoroughfares of the C~ty, as they now exist or may be hereatler constructed, opened, lard
out, or extended wathm the present lmuts of the C~ty, or m such temtory as may hereafter be added
to, consolidated, or annexed to the C~ty
Sectlon 26-241 Franchise featured
(a) Any Person who desires to occupy Public Raghts-of-Way for the purpose of
promd~ng Electric Ut~hty Service to any Person or area of the C~ty must obtmn a franchise from
the C~ty hereunder and comply w~th all prows~ons of tlus Ordinance and the franchise granted
hereunder The franchise granted by the C~ty shall be granted m accordance with Article XIII of
the C~ty Charter, and shall anthonze the Prowder to use and occupy the present and future Pubhc
Raghts-of-Way for the purpose of constructing, erecting, owning, suspending, lnstalhng,
extendm§, renewing, repamng, mamtalmng, operating and conducting w~thm the mty hm~ts of
the City, a plant or plants and poles, w~res, p~pehnes, cables, underground condmts, manholes,
fiber optic cable solely for the prowsion, support, or control of the Electric Utd~ty System, and
all other facilities and eqmpment needed and necessary for the maintenance and operation of an
Electric Utility System
Page 4
(b) A Prowder seelang to obtain a franchise shall make apphcatlon therefor with the
C~ty Such apphcat~on shall consist of completing the Apphcat~on Form prowded by the City
and fihng the completed form w~th the C~ty, along with the required Apphcat~on Fee of $500
Upon receipt of the completed Apphcat~on Form and the Apphcatlon Fee, and after reasonable
opportunity for rewew of same, the Ctty shall, by ordinance, grant a franchise to the apphcant as
prowded here~n
(c) A fi.anch~se granted hereunder shall be hm~ted to the prows~on by Prowder of
Electric Utility Servmes In the event Prowder desires to use tts existing fac~ht~es, or construct
new faclht~es, m order to prowde telecommunications service, local mterconnectlon, network
access service, leased fiber optm capacity, v~deo programming service or any other
telecommunications or telephony service to ex~st~ng or potential customers, Prowder must obtain
add~tlonal and separate authorization fi.om the C~ty for such actlwt~es to be conducted in the
Pubhc Raghts-of-Way prior to their commencement, as prowded by state law, ~ncludmg the
payment of appropriate fees therefor
(d) Francluses granted hereunder shall cover the geographical area of the entire
corporate hm~ts of the C~ty, but shall not be construed to expand or hm~t a Prov~der's service
area granted by the Pubhc Utility Commission of Texas The City limas are subject to
expansion or reductaon by annexation and contraction of mumclpal boundaries In accordance
w~th state law and regulations of the Pubhc Utility Commission of Texas, a fi'anchlsed Provider
may prowde sermee to any and all areas that may be annexed to the C~ty under the same terms
and concht~ons of ti'as Ordinance as the current areas now ~ncluded w~tlun the C~ty If the C~ty
approvos any expansion or reduction of its corporate hm~ts by annexation or contraction, the C~ty
wall prowde written not~ce to the Provtder The Provider must rewse ~ts payments due to any
Page 5
expansion or reduction by annexation or contractton wlthtn a reasonable ttme after notme by the
Ctty, but no later than sixty (60) calendar days after receipt ofnotme
(e) Franchases may be granted for a fixed term, not to exceed twenty (20) years
(f) A franchise shall not be asmgnable wtthout the express, advance, written consent
of the govermng body of the Ctty, whmh consent shall not be unreasonably w~thheld, such
consent to be evidenced by an ordtnance that fully recttes the terms and condtttons, if any, upon
whmh such consent to assign ts g~ven
Section 26-242 Com~ansatton to be ~atd to the Cttv
(a) As compensation for the rights and pnwleges conferred by a franchtse granted
pursuant to tins Ordinance, Provtder shall be reqmred to pay to the Ctty, each quarter, a sum of
money equal to four percent (4%) of the Provider's Gross Revenues as defined heretn
(b) Each quarterly payment reqmred by flus Ordinance and the franchise shall be
equal to four percent (4%) of the precedtng quarter's actual smd Gross Revenues Each payment
shall be due and payable on or before the last bustness day of the first month following the end
of the preceding quarter by electromc funds transfer or by other means that provtde tmmedtately
avmlable funds to the C~ty on the day the payment ts due These payments 0nsofar as the City
has legal power so to provide and agree) shall be tn lieu of, and shall be accepted as payment for
all of Provader's obhgattons to pay other charges for the rental of the Pubhc Raghts-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 Ctty by Provtders as constderatlon for their use
and occupancy of Public Rsghts-of-Way may change for Providers with franctuses extending
beyond January 1, 2002, tn accordance wtth Sectton 33 008, Public Utlhty Regulatory Act of
Page 6
Texas ("PURA") (Tex Utfl Code §33 008) For "electric utilities," as defined tn PURA, the
City shall determine the franchise fee to be paid by Providers using the criteria set forth in
§33 008, PLIRA The new franchise fee shall be effective as of January 1, 2002, and shall
replace the calculation of the francluse 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
Se¢t~on 26-243 Underground conduits, use by Cit~ of conduits and poles
(a) Prowder shall ~nstall underground at no expense to the City all electric power
distribution facilities witlun new residant~al subdlwslons or commercial developments The City
may require facilities to be moved underground at the City's expense
(b) Representatives of both the C~ty and the Provider shall meet periodically to
(l) Consult and plan together regarding projects to be undertaken pursuant to
this section The Provider shall provide non-binding "ballpark" cost estimates for
planmng purposes at no cost to the City The final decision as to which projects are
selected rests w~th the City, subject to the prowsions of flus section The specific
scheduling of projects rests w~th the Provider, which shall make every reasonable effort
to complete such projects w~th~n the time requested by the City,
(11) Review the C~ty's underground~ng 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 C~ty's plans for additional
undergroundIng,
(m) Review the status of technology In the field of electric underground~ng,
Page 7
(iii) Review the construction and operation and maintenance costs of
underground lines versus overhead lanes, and
(iv) Review pubhc projects anticipated by the City
Such meetings shall be held to achieve a continuing program for the orderly
underground~ng of elecmc hnes in the C~ty
(c) When undertaking a project of undergroundang pursuant to subsection (b) of this
section, the City and the Provider shall work with other utilities or companies that have their
lanes overhead to have all hnes undergrounded as part of the same project When other utilities
or compames are placing their lines underground, the Provider shall cooperate with these utilities
and compames 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 Provlder's cost by the City
(d) The Provider shall use ars best efforts to coordinate its Installation of new
underground facilities with preexisting underground facihties of other eompames
(e) If Provider, In its sole discretion, determines that it has spare ducts in its
underground conduits, or spare pans, crossarms, or space on any of its poles not then necessary
for the provision of Electric Utihty Service, and not needed for future anticipated load growth or
emergencies, Provtder shall permit the City to use one such duct in each conduit, or reasonable
spaces on poles, or both, for the Ctty's pohce and fire alarm wires, traffic control wires or cable,
fiber-opt~c lanes cormectmg City facilities, or other similar, appropriate non-commercial,
governmental uses, provided that such use by the City as an compliance w~th the National Electric
Safety Code and at the expense of the City If Provider constructs or extends addmonal conduits
or erects additional poles, the City may require the Prowder to provide one such duct in each
Page 8
condmt, or reasonable space on poles, or both, for the C~ty's own use as aforesmd In either
event, the C~ty shall pay Provider a fatr rental therefor
(f) City shall not sell, lease or otherwise make available its nghts to use Prowder's
facilities as set forth hereto to any third party for commercial purposes Such rights are prowded
solely for the non-commercial use of the City for governmental purposes However, this
restriction shall not prevent the City from usmg the services of a third party commercial entity to
manage or operate the City's facfl~ttes on behalf of the C~ty, so long as no resale or other
commercial use of such facilities shall occur
(g) Prowder is not authorized to lacanse or lease to any person or entity or any other
public utility, any nght to occupy or use the C~ty'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 Prov~der's Electric Utthty
System shall be subject to lawful police regulations and ordinances of the City, ~nclud~ng, but not
hmated to, Sectmns 25-71, et seq, Denton Code of Ordinances The placement of poles,
excavations, and other construction m the streets, alleys, and other Pubhc Pdghts-of-Way, shall
interfere as httle as practtcable 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 tame to order and require
Provider to remove and abate any pole, ware, cable, or other structure that as 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 w~thout compensation or llablhty for damages to Provider
(b) Whenever the Prowder shall cause any opening or alteration to be made ~n any of
the Pubhc Rights-of-Way for the purpose of mstalhng, maintaining, operating or repalnng ars
Page 9
Electric Utility System, the Pmvtder must obtain a permat as reqmred tn Secttons 25-71, et seq,
Denton Code of Ordmances The work shall be completed at no expense to the City wtthtn a
reasonable tame The Provader shall, upon the completton of such work, restore such portion of
the Pubhc Raghts-of-Way to as good or better condmon as it was before the opemng or alteratton
was so made and will promptly remove any debris Should the Provtder fml to complete
restoration after ten (10) calendar days' notice promded in wntang by the City to Provtder, the
Ctty may repair such portion of the Pubhc Raghts-of-Way that may have been disturbed by the
Provader, and the cost shall be charged to the Provtder
(e) The Promder shall be responsable for the payment of all repmr or mmntenance
costs mcurred as a result of any defects, ~mpmnnents, or substandard condmon m the Pubhc
Rights-of-Way caused by the work of the Prowder for two years after the C~ty's acceptance of
the completed work, provaded however, that the Promder remmns responsible for repair and
mmntenance costs beyond the two year period when it has been notffied by the Caty ~n wnttng of
a defect, tmpalrment, or substandard condtt~on within the two year period
(d) On or before the effective date of a francbase granted hereunder, and as a
condltxon precedent to the effecttveness of the franchise, the Provider shall deposit wath the C~ty
F~nance Director a surety bond tn the amount of $50,000, payable to the City and secunng the
payment of reparr or maintenance costs incurred as a result of any defects, tmpalrments, or
substandard conditaon tn the Public Rtghts-of-Way caused by the work of the Provider or
resultmg from Pmvtder's actlvttles m the Public l'rights-of-Way The reqmred surety bond must
be with good and sufficient sureties, issued by a surety company authorized to transact business
tn the s~ate, and satasfactory to the Caty Attorney in form and substance
(e) No prowslons of tlus Ordinance shall be construed to prohlbtt Ctty from tmposlng
tnspectaon or permattlng charges and fees for excavation, maintenance and restoration projects by
Page 10
Provider, and reqmnng adequate security therefor, to assure appropriate planmng, construction,
inspection, completion and restoration of such projects
(0 Engmeenng plans for those projects ~nvolvtng significant constructton ~n Pubhc
Rights-of-Way shall be submitted to the C~ty for approval no later than thirty (30) calendar days
prior to the commencement of construction, which approval shall not be unreasonably w~thheld
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 ~mtlatlon of any construction, repmr, replacement, paving
cuts, or other excavation within Public Rights-of-Way All reasonably practmal alternatives to
making paving cuts will be required before pawng cuts w~ll be permitted In addition to any
other penmt reqmrement, the Provider shall submit a plan that provtdes for compliance w~th all
federal, state, and C~ty reqmrements, ~ncludmg, but not hmlted to, construction and restoration
standards, stormwater quality regulations, traffic control regulations, and the Texas Professional
Engmeenng Practices Act Any plans submitted shall be detmled to the satisfaction of the C~ty's
D~rector of Engmeenng and Transportation If any work ~s to be done by an ~ndependent
contractor or subcontractor, the Provider must identify, ~n writing, that contractor and any
subcontractors to the City before a permit ~s ~ssued For the permit, the C~ty may reqmre
mformat~on as necessary so that adequate notfficat~on, commumcat~on, and points of contact for
the Promder or its contractor may be estabhshed
(h) In the event Provider undertakes emergency repmrs, excavations, or paving cuts
for which a permit has not been obtained that result m any d~smptlons to the public's or the
C~ty's use of Public Raghts-of-Way, the Promder shall dehver not,ce to the C~ty of such repmrs,
excavations, or pawng cuts no later than the end of the next working day following ~mt~atlon of
the work In the event such emergency repairs, excavations, or paving cuts are reqmred on an
Page 11
arterial street dunng peak traffic periods, t e, 7-9 a m or 4-6 p m Monday through Friday, the
Provider shall verbally notify the Denton Pohce Department at the time of commencement of
such work
0) Erosion and sedimentation dunng construction or repmr work shall be controlled
in accordance with the ordinances and regulations of the C~ty generally apphcable to excavations
wlttun the C~ty, as amended or revised from time to t~me Permanent erosion control shall be
reqmred upon completion of all work Effective enwronmantal and pollution control measures
shall be mmntmned m accordance with C~ty, State, and Federal requirements
(j) When Provider shall make or cause to be made excavations or shall place
obstructions m any Pubhc Raghts-of-Way, the Prowder shall place, erect, and mmntam bamers
and lights to ldanttfy the location of such excavations or obstructions, consistent with the Manual
of Umform Traffic Control Devices, and as further d~rected by the C~ty and the Texas
Department of Transportation
(k) Work done ~n the Pubhc l'rights-of-Way shall be planned and executed to
m~mmlze time of construction and d~srupt~on to traffic and the general pubhc The work s~te
must be rendered safe to traffic and the general public m accordance with normal utd~ty practme
prior to workers leaving the site each day Once started, work must proceed w~thout ~ntermptlon
to completion, mcluchng restoration and clean-up
(1) Except for emergencies as determined by the Provider or under special
c~rcumstances as detenmned by the City's Director of Engmeenng and Transportatmn, work
hours for work in the Public Raghts-of-Way will be 8 a m to 5 p m 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 m to 4 p m unless otherwise specffically
permitted by the City
Page 12
(m) Provider shall have the anthonty to trim trees upon and overhanging Pubhc
Paghts-of-Way (including sidewalks and driveways), after providing written not,ce to affected
customers, so as to prevent the branches of the trees from coming ~nto contact w~th the wires and
cables of the Prowder, prowded that all trimming ~s done in comphance with the National
Electric Safety Code and City Code prows~ons, and at no expense to the C~ty
(n) The City shall have the right to deny a permit for any proposed new or additional
facilities within the Pubhc Paghts-of-Way ff ~t detenmnes there ~s ~nsuffic~ent space to
accommodate the facilities, or ff the Provider, or tts subcontractors, are not in comphance wnh
ex~stmg City ordinances and standards or previously ~ssued penmts
(o) Provider and City may agree that C~ty shall perform paving cuts, excavation, or
other construction or repairs in the Pubhe Rights-of-Way on behalf of Prowder, at such
reasonable price and upon such reasonable terms as Prowder and C~ty may agree In the event of
such agreement, then with respect to the work to be done by C~ty pursuant to that agreement, the
provisions of this Section shall not apply to Prowder
Section 26-245 Joint use of holes, trenches, and conduits
(a) In order to reduce the number of poles and to avoid pubhc safety concerns and
wsual clutter, the Provider may be reqmred to attach ~ts wires to poles owned and maintained by
another Person, or to permit the w~res of another pubhc utility to be attached to the poles owned
and maintained by the Provider, upon reasonable terms and for just compensation for any
additional facxht~es of Prowder 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 sanle are not otherwise resolved or determined w~th~n a reasonable
time, then disputes arising under flus Section shall be resolved by arbitration ~n accordance w~th
the Commercial Arbitration Rules of the American Arb~tratlon 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 m the matters at issue and selected by the Provider and the other
public ut~hty an accordance wtth the Commercml Arbatrat~on Rules of the American Arbitration
Association The decision of the arbttrator shall be final and binding as to any matters submitted
under th~s Sec~on All costs and expenses recurred ~n connectton with any such arbitration
proceedang (lncludang reasonable attorneys' fees) shall be borne by the party against whmh the
declsaon as rendered, or, af no decision ~s rendered, such costs and expenses shall be borne
equally by the Prowder and the other public utfltty If the arbitrator's decasaon is a compromase,
the determination of wtuch party or parties bears the costs and expenses incurred tn connection
with any such arbatratlon proceeding shall be made by the arbitrator on the basis of the
arbitrator's assessment of the relatave merits of each party's position The partaes shall instruct
the arbitrator to render ~ts decision no later than ninety (90) calendar days after submission of the
dispute
(c) The Prowder may require such other public utdlty to furnash evidence of adequate
insurance and promde mdemmficat~on covenng the Prowder, and adequate bonds covenng the
performance of such other pubhc utility attaching to the Prov~der's poles, as a condition
precedent to gawng permassaon to such other pubhc utdlty to attach wires to Prowder's poles
Provlder's reqmrements for such insurance and mdemmty must be reasonable
(d) Prowder shall not be requtred to attach ars wares to the poles of another pubhc
utdaty or to permat the w~res of another public utlhty to be attached to Provader's poles if ~t can
be satasfactonly shown
(0 that Provader wtll be subjected to increased risks of interruption of servme
or habflaty for accidents,
Page 14
(11) the poles, wires, and appurtenances of such other pubhc utdtty are not of
the character, design, or construction reqmred by, or are not being
ma~ntmned m accordance with modem elecmc Utdlty practice, or
(m) sufficient clearance or space is not avmlable on the pole
Wires shall be located on poles m compliance w~th apphcable safety standards and shall not
interfere with the erection, replacement, operation, repmr, or maintenance of the wires and
appurtenances of any other public utility occupying the poles
(e) Provlder's distribution feeder hnes may be constructed as overhead hnes, but such
hnes shall be designed and constructed in an "armless" manner, to the extent such design and
construction ~s techmcally feasible, with no more than two (2) such bnes per R~ght-of-Way
"Armless" type construction means cross-arms up to four (4) feet ~n length phase to phase, or
two (2) feet in length pole to phase
(f) Provider may be mqmred by the C~ty to share trench space with another pubhc
utility for the placement of cables, w~res, or ducts underground Compensation to the Provider as
well as the terms of shanng trench space shall be resolved as provided for in subsection (a) of
this Section Also, Provider may require insurance and mdemmficat~on, as provided ~n
subsection (a) of this Section Ducts, cables, or w~res shall be placed ~n trenches ~n comphance
with applicable safety standards and m a manner that does not interfere with Provlder's cables or
wires, as provided m subsection (b) of tlus Section
(e) Nothing hereto shall modxfy or abrogate the power of the C~ty to reqmre any
holder of a franchise from the C~ty to allow use of ~ts facihtles by any other holder of a C~ty
francluse under Article XIII of the C~ty Charter
Page 15
Section 26-246 Conformance with ;mbhc lm~mvements
Whenever, by reason of any changes, w~thout hmltatlon, of any street, sidewalk, curb,
alley, highway or pubhc way, or m the location or manner of constructing any water or
wastewater pape, gas pipe, storm sewer, or other underground or overhead structure for any
governmental purpose whatsoever, other than s~tmg of competitive electric facilities owned by
the C~ty, tt shall be deemed necessary by the City to remove, alter, change, adapt, or conform the
underground or overhead facilities of Prowder located ~n the Pubhc l'right-of-Way, such
alterations or changes shall be made as soon as practmable by Provider when ordered in writing
by the City, without claim for m~mbursement or damages against the City Prowded, however, if
smd reqmrements impose a financial hardship upon the Provider, the Provider shall have the
right to present alternative proposals for the Chty's consideration The City shall not require
Provider to remove its facthtles entirely from a street, s~dewalk, curb, alley, highway, or pubhc
way unless statable alternatives are available for relocation of its facdltles
Secttor~ 26-247 Prowdcr to mamt~un and file maps and assist ~n determamng Provtder's
use of Pubhc Rafts-of-Way,
(a) The Provider shall cooperate w~th the City at all t~mes by providing timely and
complete information regarchng the location of its conduits, poles and facilities, along with such
maps, plats, constructton documents and drawings as may ex~st or as may be created from t~me
to time Provader and City shall cooperate and coordinate their efforts to make the most efficient
and economical use of their respectave facilities The Prowder shall at all t~mes keep on file ~n
the office of the Cxty's Director of Engmeenng and Transportation ("Director"), a current map,
In a dxgxtal format compatxble with the City's Geographic Information System ("G I S "), of the
Prowder's Electric Utihty System wxthln the City As extensions or modfficatmns of facdit~es
are made from t~me to time, the Prowdar shall periodically file with the Director updated dtgltal
Page 16
maps showing those extensxons or modfficat~ons so that the C~ty will have current and accurate
~nformat~on regarding the location and charactenstms of the System The d~g~tal ~nfotmatxon
shall include the location of the factht~es compnsxng the Systems, and all other ~nfonnat~on
maintained by the Provider pertmnmg to the City's administration of the franchxse, tncludxng the
depth of any buried transmxsston or dxsmbutxon hnes, to the extent such xnformatmn exxsts If
such mformataon xs not available in dxgltal format, a hard copy shall be prowded A hard copy of
the dxgxtal maps may be requested by the Cxty and shall be prowded by the Prowder xf so
requested
(b) The City will use the ~nfonnatlon prowded by Providers pursuant to thxs Section
only for the purposes of protection and management of the Pubhc Raghts-of-Way The data base
prowded by Provtder m ~ts entxrety will be treated as competitive mfonnat~on and wall not be
disclosed m whole or xn part, except that port~ons of such data may be prowded to third part,es as
necessary for effictent management of the Public Raghts-of-Way
Section 26-248 Work by others
(a) The City reserves the right to lay, and permit to be la~d, storm sewer, gas, water,
wastewater and other p~pelmes, cables, and conduits, and to do and permtt to be done any
underground or overhead work that may be necessary or proper in, across, along, over, or under
the Pubhc Raghts-of-Way occupxed by the Provxder The C~ty also reserves the right to change,
xn any manner, any curb, sidewalk, baghway, alley, pubhc way or street In permtttxng such work
to be done, the C~ty shall not be liable to the Prowder for any damage so occasxoned, but nothing
herein shall reheve any other Person from responsibility for damages to the factht~es of Provider
(b) In the event that the governing body of the C~ty authorizes someone other than the
Provider to occupy space under the surface of the Pubhc Pdghts-of-Way, such grant shall bc
subject to the rights here~n granted or heretofore obtained by the Prowder In the event that the
Page 17
govermng 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 reqmre 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 Provlder's property Provided,
however, that the City shall never be liable for such reimbursement due to Provider from such
Person
Section 26-249 Accountin~. audit, inspection
(a) The Provider shall mmntmn, at its local office or pnnclpal 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 maintmn 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 reformation 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 1ts franchise shall be made available upon not less than ten (10)
working days notice for mspectlon by the City at any time dunng 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 Provlder'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 auchtors to make the audit
Provider shall make available to the authtor personnel and such records as are relevant to such
audit, and shall make no charge to the City therefor Provider shall assist the City dunn§ any
audit conducted under this Ordinance, including answenng questions and providing any
requested records or information Provider shall endeavor to provide requested records or
information wittun 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 a~er receiving the request therefor, the Provider shall notify the City or its
representative ttlat the requested records and information will be made available w~thln an
additional fourteen (14) calendar days, and the information and records shall be so provided
The cost of an audit pursuant to flus provision shall be borne by the City, unless the audit reveals
an undorpayment of fees m excess of two percent (2%), in wluch 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 Prowder's Gross Revenue and the number of kWh to be delivered in
the City for the period covered by the statement signed by an anthonzed 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 Prowder's Gross Revenue The acceptance of
any statement or payment shall not estop the C~ty from asserting that the amount prod ~s not the
amount due or from recovenng any deficit by any lawful proceeding, ~ncludmg ~nterest
(d) In the event the Prowder shall be determined to have under-remitted the fee
required by th~s Ordinance, the Provider shall pay, ~n addition to the underpayments, ~nterest on
the underpayments at the rate often percent (10%) per annum from the t~me of the underpayment
until payment is made In the event of underpayment of fees, the Provider shall also pay to the
C~ty ten percent (10%) of the total underpayment as a penalty for noncomphance with th~s
Ordinance Any penalty of less than One Hundred Dollars ($100 00) shall be waived as a de
rntntrnus v~olatlon
Section 26-250 Penalties
(a) For the v~olation of any of the following prows~ons of this Ordinance or of ~ts
franchise, penalties shall be pa~d by Provider to the City w~thln fiReen (15) calendar days of
written notice of assessment by the City, in addition to any other rights or remedies which the
C~ty may have at law or in equity
(1) For failure to complete construction in accordance with agreed plans,
unless the City specffically 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 prowde data, documents, reports, or information required to
be furmshed hereunder to the C~ty, or to reasonably cooperate with the
C~ty dunng an audit reqmred under the terms hereunder, Prowder shall
pay a penalty of One Hundred Dollars ($100 00) per day for each day the
violation occurs or continues, or
Page 20
(n0 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 noneomphance 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 noncomphanee continues
(b) Prmr to imposing a penalty under subparagraphs (1) through (ill) 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 Provlder'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 Prowder shall include a list of the failures complained of Provider shall have
an opponumty to address the Council at such public meeting
Section 26-251 Forfeiture and termination
(a) In ad&t~on 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
0) V,olataon of any material provision of this Ord,nance or a fi:anchlse
granted hereunder, or any rule, order, regulat,on or determmat,on of the
C,ty made pursuant to this Ordinance that is not cured or corrected m
accordance with the provis,ons of this Ordinance, or
(a0 An attempt by Prov,der to evade any prov,s,on of th,s Ordinance or ,ts
franchise, or to practice any fraud or deceit upon the City or its residents
(b) The foregoing matters described ,n paragraph (a) above shall not const,tute a
material breach of this Ordinance if the violation occurs w,thout fault of the Provider, or occurs
as a result of circumstances beyond Promder'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 d,rectors, officers, agents, or employees
(c) The City shall make a written demand that the Provider comply w,th any such
provls,on, rule, order, or determination under or pursuant to tbas 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 substant,atlon fi:om Provider that
the required correct,ye action has been taken, or ,s being actively and expedit~ously pursued, the
City may take under consideration the issue of tenmnation of the franch, se of Provider The C~ty
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 not,ce of intent to request such termination and the
time and place of the heanng Public not,ce shall be given of the heanng and the ,ssue or ,ssues
which the City is to consider At smd heanng, the govermng body of the C~ty shall hear and
consider the issue or issues and shall hear any person interested thereto At said heanng, the
governing body of the City shall determine, in tts sole discretmn, whether or not any uncorrected
v,olatmn by the Provider stall ex,sts
Page 22
(d) If the City shall detenmne 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 Prowder a further period of time
to cure the violation
(e) The fmlure of the City to ~nslst ~n any one or more ~nstances upon the smct
performance of any one or more of the terms or provisions of th~s Ordinance shall not be
construed as a wmver or rehnqmshment for the future of any such term or provision, and the
same shall continue m full force and effect No wmver or rehnqmshment shall be deemed to
have been made by the C~ty unless smd waiver or relinquishment is in writing and signed by the
C~ty
S~ction 26-252 Other legal remedies
(a) Nothing here~n contained shall limit or resmct any legal rights that the City may
possess arising from any alleged violation of this Ordinance or its franchise by Prowder The
City retmns all other rights, both legal and equitable, to whmh it is entitled under the law
(b) Nothing herein contained shall limit the Pmvlder's right to appeal a
determination, act, or order of the City as prowded for by the Const~tution and laws of the State
of Texas, mcluchng the Pubhc Utility Regulatory Act of Texas, as amended, or its successor
statute
Seetxon 26-253 Legal canamtv ofnrovlder
The Provider shall be a legal entity with legal capacity to operate, construct, reconstruct,
and mamt~un an elecmc transmission and distribution system ~n the C~ty m its properly
certfficated service area
Page 23
Seetaon 26-254 Governmental ~mmumW
All of the provisions contained in this Ordinance are hereby declared to be for a pubhc
purpose, and are m the interests of the health, safety, and welfare of the general public Any
member of the governing body of the City, or C~ty official or employee charged with the
enforcement of this Ordinance, acting for or on behalf of the City m 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 hablhty for any damage that might accrue to any
person or property as a result of any act required or permitted m the discharge of h~s or her said
duties
Section 26-255 Insurance
Prowder will insure against all the risks undertaken pursuant to ~ts franchise, mcludmg
the mdemmfieatlon required m the francbase Such insurance may be in the form of self-
insurance to the extent permitted by apphcable law, under a Provider-approved formal plan of
self-insurance maintained m accordance with sound accounting and risk-management practices
Such ansurance coverage or plan of self-~nsurance ~s subject to the approval of the Rask Manager
of the City, whose approval shall not be unreasonably w~thheld or delayed A certaficate of
insurance shall be provided to the City annually, no later than October 1 for each year dunng the
term of Prov~der's franebase, evidancmg such coverage, and additionally w~thln tharty (30)
calendar days of any substantial change m 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 elama against such coverage
Seet~0~a 26-256. SeverablhtV.
If any section, subseetxon, paragraph, sentence, clause, phrase or word m this Ordinance,
or the apphcatlon thereof to any person or circumstances is held invalid by any court of
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competent juns&ction, such holding shall not affect the validity of the remalmng portions of tins
Ordinance, and the City Council of the City of Denton, Texas hereby declares it would have
enacted such remmmng portions of this Ordinance despite any such ,nvah&ty
SECTION 3 It is hereby officially found and determined that the meeting at which this
Ordinance was passed was open to the public as reqmred by law, and that public notice of the
time, place and purpose of smd meeting was given as required by law
SECTION 4 That tins Ordinance shall become effective fourteen (14) days from the
date of ~ts 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, wltinn ten (10) days of the date of its passage, and it is accorchngly SO
ORDAINED
PASSED AND APPROVED thls the /~'ff dayof x~-OJ~2ddJ-~ ,2000
ATTEST
JENNIFER WALTERS, CITY SECRETARY
By f~)~
S \Our Docurt~nt~\Ordm~n~00\Elecme ROW and R~guln~ory Ordinance 012600 doc
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