2001-4051ORDtNANCE NO.
2~01-405
N ORDINANCE GRANT'
qG TO TXU ELECTRIC
OMPANY DOING BUSI-
lESS AS TXU ELECTRIC, A
RANCHJSE FOR THE
~URPOSE OF CON-
TRUCT~NG, MAINTAIN-
NG, AND USING AN ELEC-
'RIC UTILITY SYSTEM IN
'HE CiTY OF DENTON;
~EGULATING THE CON-
iTRUCTION WORK DONE
~y THE GRANTEE IN THE
;ITY; pRESCRIBING THE
)UTIES, RESPONSIBILI'
tIES, AND RULE-MAKING
kUTHORITY OF THE CITY
~AANAGER AND THE CITY
NITH RESPECT TO AD-
L~INISTRATION OF THIS
FRANCHISE; PROVIDING
FOR ENFORCEMENT OF
THE FRANCHISE; PRE-
LEGAL NOTICES
odand superseded by Ordi-
nance No. 2000-041 and fur-
ther amended and supersed-
e~ by Ordinance No, 2001-406,
amending the City of Denton
Code of Ordinances to pro-
vide uniform regulations to
govern the use and occupan-
cy of Poblic Rights-of-Way
and other City property by
Grantees of Electric Utility
Service in the City, such pro-
visions being codified as Sec-
tions 26-240, et seq., City
Code, and including the re-
quirement that such Grant-
ees obtain a franchise from
the City for such use and oc-
cupancy; and
WHEREAS, Sections 26-240,
et seq., of the City Code apply
to TXU Electric, and its pro-
vision of Electric Utility Ser-
vice in the City, except to the
extent that those provisions
are changed by this Fran-
chise, and require TXU Elec-
tric to obtain a franchise
from the City; NOW,
THEREFORE
THE COUNCIL OF THE
CITY OF DENTON HERE-
BY ORDAINS:
SECTION 1: DEFINITIONS.
As used in this ordinance,
capitalized terms shall have
the defined meanings set
forth in Ordinance No.
2001-406, codifJod as Sections
26-240, et seq., City of Denton
Code of Ordinances, and such
definitions are hereby adopt-
ed as is set forth fully herein
with the fogowing exceptions
LEGAL NOTICES LEGAL NOTICES LEGAL, NOTICES
conferred to Grantee. 1:he kilowatt hour / to existira City fa-
City Manager shall have the in accordance with ~g w~er, sani-
authority to make and pub- Section 5(at hereof and Sec- tory sewer, storn drains,
lish, after written notice to
those affected and after a
hearing, such rules and regu-
lations es are necessary to
carry out the duties and pew-
ers conferred upon the City,
acting by and through its City
Manager, by the Public Utili-
ty Regulatory Act, as amend-
ed, and otherwise.
to)it shall be the right and
duty of the City Manager and
the governing body of the
City at all times to keep fully
informed as to all matters in
connection with, or affecting
the construction, reconstruc-
tion~ maintenance, opera-
tion, and repair of Grantee's
facilities located within
City's Public Rights-of-Way
and other City property as
well as its accounting meth-
ods and procedures in con-
nection therewith, the con-
duct of the Grantees' busi-
ness in the City, and the Elec-
tric Utility Service being pro-
vided by Grantee in the City
to the extent reasonably nec-
essary to administer this
franchise and to exercise its
regulatory authority over
,rantee.
CTION 4: RECORDS,
REPORTS, AND INSPEC-
TIONS.
to)The Grantee shall main-
tain its books and records as
prescribed in Section 26-249,
City Code.
tine 26-242 of the City Code. street lights, traffic signals
The third payment shall be and other electrk conduit.
due and payable on or before Grantee shall provide the tnt-
August 15, 2002, for the three- rial work plans and drawings
month period ended June 30, for the proposed construe-
2002. Subsequent payments tine. In addition, Grantee
shall be due and payable shall assess and report on the
quarteriythereafferonorbe- impact of its proposed con-
fore the fifteenth day of the struction on the City environ-
second month following the meet. Such plans and reports
endofthethree-monthperiod may be reviewed by the City
upon which said payment is to
LEGAL NOTICES
Act of Texas, as amended.
SECTION 10: ClTYS RIGHT
TO PURCHASE OR CON-
DEMN.
In accordance with Section 9
above this Franchise shall be
subiect to ali valid provisions
of the Charter of the City of
Denton and all other applica-
ble laws, including without
limitation, those provisions
of Article X II I, "Franchises"
of the Charter, that provide
based. GranteeshallfurnJsh items 1) aesthetic and good the conditions under which
to City at the time each pay- planning principles have the City may purchase the
meet of franchise feels made been given due consider- [ proper~y of Grantee.
to City hereunder, a suffi- arian 2) adverse impact on
ciently detailed financial the environment has been SECTION 11: GOVERNING
statement showing how the minimized, and 3) that aH ap- J LAW AND VENUE.
Gross Revenues amount was piicab e aws inc ud ng build- J '
arrived at and how the ing aedzoningcodesandairJ a)This Franchise shah be
amount paid to the City was and water po urine regula- J governed by and construod in
determined, for such quar- tines are complied with. J accordance with the laws of
tar. After Grantee impie- Changes requested by the the State of Texas and the
neats customer choice, the City shall be incorporated in- City Charter of the City of
information provided to the to Grantee's construction. Denton, Texas.
City shall indicate the num- Within twelve months of the
her of kilowatt hours of alee- Adoption Date of this Frae- b)Veeue respecting any dis-
tricity delivered by the chise, Grantee shall use its putearisingheceundersbeg
Grantee in the City. best efforts to comply with exclusively lie in Denton
26-247(a) of the City Code. County, Texas.
c)lfGranteehasnofalreedY Grantee may be given up to
done so within ninety (90) an additional twelve months c)For purposes of construe-
days after the Acceptance to comply with this section tine, this Franchise shall he
Date of this Franchise, itcandemonstratetotheCit construed as havJng been ne' BY
Grantee shall provide infor- through its City Manage gotiated at arm's length and
marion to the City: that due to cost, technical dif- drafted by the combined of-
ficulties or incompatibility forts of the City and Grantee
ti)documenting the total between the City's and and their respective legal
number of Kilowatt hours of Grantee's GiS systems it counsel.
electricity delivered by neeqsmaretimetoprodocea
Grantee in calendar year currentmapofitsfacilitiesin SECTION 12 INDEMNIFI-
199~ to all of Grantee's retail a digital format compatible CATION.
customerewhoseconsuming with the City's Geographic
facilities' pointsaf delivery Information System ("GIS"). ~shelJdefend, iedem-
LEGAL NOTICES LE~iAL gU I
sions of the Charter of the bar, voting aye,
City of Denton, Texas, and af-
ter Grantee deposits its sure- Jane Fulton, Council Mere-
ly bond or provides satistac- bar, voting aye.
tory evidence of self insur-
ance with the City Finance Mike Phillips, Council Mem-
Director, aa reduirod by Sec- her, voting aye.
tine 6 (it, and if is according-
ly SO ORDAINED. The Et- Raymond Redmon, Council
fective Date of the Franchise Memher, voting aye.
granted hereunder is Novem-
bet 15, 2001, and the Fram The above and foregoing or-
chieeshetldeinforceandef' dinance read, adopted on
fed from the Effective Date third reading and passed by
through November 15, 2011. the following votes, this the
16th day of October, 2001, at a
SECTION 15: OPEN MEET- regular session of the Cit~
lNG. Council.
It is hereby officially found Euline Brock, Mayor, ab-
and determined that the stainodfremvoting.
meetings at which this ordi-
nance was passed were open Mark Burroughs, Council
to the public as required by Member, absent.
law, and that public notice of
the time, place and purpose Rani Bea$1ey, Council Mere-
of said meetings was given as per, voting aye.
required by law.
Perry McNeill, Council Mem-
ber, voting aye.
EULINE B.ROCK, MAYOR
Jane Fulton, Council Mem-
ATTEST: her, voting aye.
JENNIFER WALTERS
CITY SECRETARY Mike Phillips, Council Mem-
bet, voting eye.
Raymond Redmon, Council
APPROVED AS TO LEGAL Member, voting aye.
FORM:
HERBERT L. PROUTY, TATE OF TEXAS
:ITY ATTORNEY
NTY OF DENTON
BY r Jennifer Waiters
The City of Denton, Texas, :ity Secretary of
acting herein by its duly con- the City of Denton
stituted authorities, hereby Texas, do hereby
declares the foregoing Ordi- certify that the above and
were located within the City's
nify and save whole and
harmless the City and all of
only: The term "Gross Reve- b)Grantee, at Grantee's boundaries; and
nues" shell include all reve- solecost andexpenseandup-
nueswhich are found by a fi- on request by City, will (ii)documenting Grantee's
ual iudgment of a Court or promptly prov[decopiesof fi- Gross Revenues in calendar
through a final settlement of nancial and operating re- year 1998 derived from the
the parties in the litigation
styled City of Denton, Texas,
et al. vs. TXU Electric Com-
pany, et aL currently pending
in the 134th Judicial District
Court of Dallas County, Tex-
as ("TXU Litigation") to be
included within this term un-
der the compensation provi-
sion set forth in Section 1 of
the previous franchise as
I amended by Ordinance No.
,93-137 and as more fully set
I forth in Section 5 hereof. The
, term "Effective Date" is the
date that the Franchise reconstruction, removal, watt hour, and shall notify
granted herein becomes et- maintenance, operation, or the City of the Grantee's
fecfive, which shall be No- repair of Grantee's facilities computation and shall pro-
vember 15, 2001. The term within the City's Public vide all documents showing
"Acceptance Date" is the Rights of-Way and other City all gross revenues received
date that Grantee signs and )roperty; including, without aedearnedintheCityforcaF
dates the Acceptance at- limitation, all accounting ender yeer 1998including all
tached to this Ordinance.
~ECTION 2:FRANCHISE
GRANTED.
SECTION 7: FRANCHISE its officers, officials, agents, nancepassedonfirst reading foregoing is a true and cor-
AND OTHER VIOLATIONS. employees and attorneys, on the lath dey of September, rect copy of the Franchisej
against any and all claims, 2001; and passed on second Agreement Ordinance be-
: Upon evidence being re- lawsuits, judgments, costs reading onthe2nd day of nc- tween the City of Denton and
ports fi~ed with the Public provision of E~ectric Utility ceivedby the governing body and expenses for personal in- tober, 2001; and passed on TXU Electric Company do-
Utility Commission of Texas, Service within the City's of the City that a violation of jury (including death), prop- third reading on the 16th day lng business as TXU Elec-
the Federal Energy Regula- this Franchise Ordinance, or erty damage or other harm of October, 2001; and being fi- tric. The same is now record-
tory Commission, and the Se- City Charter provision, or for which recovery of dam- nelly effective as of the 15th ed as Ordinance Number
curities and Exchange Cam- (d)By November 15, 2001, n ordinance of the City law- ages is sought, suffered by day of November, 2001.
mission, or their successor Grantee shall compute the regulating Grantee in any person or persons that
agencies, in no event later franchise fee that Grantee the furnishing of service may be occasioned by, or /s
than fifteen (15) days after wouldhavepeidtotheCityin hereunder is occurring, or arise out of, Grantee's EuiineBrock, Mayor
the receipt of a request there- calendar year 1998 at the rate has occurred, it shall at once
for from the City. of 4% of Grantee's Gross cause an investigation to be
Revenues for 1998, as deter- made by the City Manager or
(c Grantee shall keep the mined in paragraph (ct his designee. Notice, penal-
City fully informed as to ail above, calculate the amount ties, and procedures for aa-
matters in connection with or of the franchise fee set forth suring compliance with this
affecting the construction, in number of dollarsper kilo- Franchise shall he as provid.
ed in Sections 26-240, et seq.,
City Code.
methods and procedures
used by Grantee in determin-
ing the franchise fee amounts
to be paid the City.
work papers in sufficient de-
tail to permit an accurate
replication of the results. For
the purpose of this Franchise
"work papers" shall mean ali
documents and records uti-
lized by Grantee of the proce.
dures followed, the tests per-
formed, the information ob-
tained and the conclusions
reached to compile and cai-
(a There is hereby GRANT' (d)Grantee shall provide the
ED to TXU Electric (herein- City, upon request, a current
after called "Grantee"), for chain-of-command organize-
the term set forth in Section lionel chart of Grantee show-
14 of this Ordinance, a Fram lng all of its officers, manag-
chloe to use and occupy the ersand supervisors, together
Public Rights-of-Way and with their respective titles, culatethe gross revenues te-
L other public property in or- addresses and telephone ceived and earned in the City
der to construct, erect, own, numbers, who have the ulti- for calendar year 1998 and
suspend, install extend, re- mate responsibility for man- the calculation of the frae-
new, repair, maintain, oper- ! aging, operating, and main- chise fee set forth in number
ate, andcondoctintheCityof raining Grantee's Electric of dollars per kilowatt hours
Denton, Texas, (hereinafter Utility System in the City. :fl will include any work
referred to as 'City" ), a plant' me mo-
SECTION 8: NOTICES.
or plants and poles, wires,
pipelines, cables, under-
ground conduits, manholes,
fiber optic cable for its own
use, and all other facilities
and equipment needed and
(e)The City Manager, or his abstracts of Grant-
designee, shall have the ee's documents and sched-
right, at reasenabletimes, to ules or commentaries pre-
inspect the plant, equipment, pared. City shall heve 60 days
and other property of the to review such computation
~rantee located within the to determine whether it has
a)All notices, including
communications and state-
breach of any of the terms or
)rovisions of this Franchise /a
or of Sections 26-.~10, et seq., Mark Burroughs, Council
City Code, or by any negli-
gent or strictly liable act, or
omission by Grantee, its offi-
cers, agents, employees, sub' Roni Beasley, Council Mem'
contractors, affiliates and her
subsidiaries, in the construc-
tion, maintenance, opera-
finn, or repair of Grantee's PerryMcNeig, CouncilMem-
Electric Utility System, or bY bar
the conduct of Grantee~s
business in the City pursuant /s
in the Ordinance
Records of the
City of Denton, Texas. WIT-
NESS MY HAND this the
day
of . ,2001.
/s/
~ennifer Walters
City Secretary
SEAL)*** ******
ACCEPTANCE
WHEREAS, the City, Council
of the City of Denton, Texas,
did on the day of
,200t, enact
an Ordinance entitled:AN
ORDINANCE GRANTING
ments that are required or tothisFrenchise;exceptthat Jane Fulton, Council Mom- .
under the terms of the indemnity provided for in per
this Franchise, shall be in this paragraph shall not ap- TO TXU ELECTRIC COM-
writing. Service of a notice ply to any liability resulting /.
shall be accomplished by from the sale negligence or Mike Phillips, Council Mom- PANY DOING BUSINESS
AS TXU ELECTRIC A
hand-delivery, by registered fault of the City, its officers, her
or certified mail, return re- officials, agents, employees, FRANCHISE FOR THE
seiptrequested (pestagepre- or separate contractors. In /s PURPOSE OF CON-
paid), orby reputable over- fheeventofjointandconcor- Raymond Redmon, Council 5TRUCTING, MAINTAIN-
nightdelivery service. Ab no- rent negligence or fault of Member lNG, AND USING AN ELEC-
rices shall be effective upon both of the Grantee and the TRIC UTILITY SYSTEM IN
thereceiptofnoticebythein- City, responsibility and in- The abeve and foregoing or- THE CITY OF DENTON;
teododrecipient.(b)Aitnotic' demnity, if any, shall he ap- dinance read, adopted on REGULATING THE CON-
in first reading and passed to STRUCTION WORK DONE
be sent to the City
Grantee at the feflowing accordance with the laws of second reading by the follow- BY THE GRANTEE IN THE
addresses: the State of Texas without, ing votes, this the 1Sth day of CITY; PRESCRIBING THE
however, waiving any gov- September, 2001, at a reguJar DUTIES, RESPONSIB
CiTY OF DENTON, TEXAS ernmental immunity defense eessien of.the City Council. TIES, AND~RULE,MAKING
City Manager or provision available to the AUTHORITY OF THE CITY
City of Denton City under applicable Texas Euline Brock, Mayor, ab- MANAGER AND THE CITY
law, andwitheutwaivinganY stained frnm voting. WITH RESPECT TO AD-
MINISTRATION OF THIS
215 E. McKinney
bantam, Texas 76201 of the defenses of the parties
under applicable Texas law. Mark Burroughs, Council FRANCHISE; PROVIDING
FOR ENFORCEMENT OF
TXU ELECTRIC COMPANY It ia understood thet it is not Member, voting aye.
Town Manager the intention of the parties
necessary for the mainte-City's Public Rights-of-WaY been made in accordance 100W. Mulberry
nonce and operation of an and other City property, and, with the provisions of 33.008, Denton, Texas 76201
Electric Utility System. for the sale purposes of the PURA. If City disagreeswith
City's review of franchise fee the calculation, then City and to)The City and Grantee,
(b)This Franchise does not payments, the administra- Granteewillworktogetherin from time to time, may des-
grant to Grantee the right, lion of this franchise, the ex- good faith to compute the ignore a new address and/or
privilege, or authority to nc- ercise of City's regulatory franchise fee in accordance another designated officer
cupy and use the Public authority over Grantee, and with the provisions of 33.008, for purposes of providing no-
Rights-of-Way or other City the types and location of PURA. If the parties reach ticehereunder, bywrittenno'
property to engage in any Grantee's facilities in the agreement the City and tice to the other party given
of bet businesswithin the City City's Public Rights-of-Way Grantee agree that they will as provided herein.
other than the provision of and other City property, to use the agreed amount to caf
Electric Utility Service, as examine, audit, and obtain culate Grantee's franchise SECTION 9: CONFORMITY
set forth in this Franchise. copies of the papers, books, fee per kJiowatt hour, in ac- TO THE CONSTITUTION,
Provided, however, thatoniy accounts, documents, and cordence with 33.008, PURA. iTATUTES, CHARTER
the additional fodowing re- business records of the By January lS, 2002, theCity AND CITY CODE OF ORDI'
Idled electric business that ,rantee and its affiliates, shall notify Grantee of the NANCES.
Grantee is providing w~thin with state law and amount of the franchise fee
the Cityasof the Effective laccordencewiththeprevi- setforthinnumberofdogars Thi,'. Franchise is granted
Date of this Franchise shall ions of Section 26-249, City per kilowatt hour. By making subject to all applicable pro-
be authorized: 1. allowing
other entities to attach wires,
cables, and other materials
to Grantee's pales ("pele con-
Code. and accepting this calcula- visions of the Constitution
tine, both City and Grantee and laws of the State of Tex-
(f)The City shah retain all of agree that neither party is as, the Charter of the City of
the investigative powers and hereby waiving any claims, Denton, Texas, and the Den-
hereto to create liability for
the benefit of any third par-
ties, but that this Franchise
shall be solely for the benefit
of the City and Grantee, and
shall not create or grant any
rights, contractual or other-
wise, to any other person or
entity.
SECTION 13: NON-EXCLU-
SIVE FRANCHISE.
The Franchise granted by
Rani Beasley, Council Mem-
ber, voting aye.
Perry McNeib, Council Mem-
ber, voting aye.
Jane Fulton, Council Mem-
bar, voting aye.
Mike Phillips, Council Mem-
ber, voting aye.
Raymond Redmon, Council
this Ordinance is not exclu-
sive. Nothing contained here' The above and foregoing or-
in shall he construed so as to dinance read, adopted on sec-
prevent the City from grant* nod reading and passed to _
lng other like or similar thirdreodingbythefollowing
rights, privileges, and frae' votes, this the ~ed day of Oc'
chises to any other person, toper, 2001, at a regular sea-
firm, corporation, or public sion of the City Council
utility.
Euline Brock, Mayor, ab-
tacts") 2. attaching cellular other rights provided to the causes of action, or defenses ton Code of Ordinances, to- SECTION 14: ACCEP- stained from voting.
telephone facilities to Grant- City by ira Charter and by that they are asserting in the gather with any and ali rules TANCE, ADOPTION DATE,
ee,sequipmentandfacilities- statelaw. TXU Litigation. The amount and regulations adopted AND EFFECTIVE DATE Mark Burroughs, Council
Any additional business or of the franchise fee that thereunder, This Franchise Member, votingaye.
services to be performed by SECTION 5: COMPENSA- Grantee was required to pay shall in no way affect, This ordinance shall take et-
Grantee in the City, other TION TO BE PAID TO THE the City in 19~8, and the abridge, orimpeirtherighfs, feet immediately from and Rani Beasley, Council Mom-
than Electric Utility Servic- ~ CITY. amount of the number of rial- obligations, or remedies of after its passage, publico- her, voting aye.
es shall not he included with- [ lars per kilowatt hour shah the parties provided for by tine, acceptance by Grantee
in this Franchise, but in- I to)Grantee shall pay theCity be determined by a final set- the public Utility Regulatory in accordance with the provi- PerryMcNeilL CounciIMem-
.... ~ ~h~ll he the subied of| an annual Franchise Fee aa tlem?? o..r .iud.?,m__e.n..t__of the
THE FRANCHISE; PRE-
SCRIBING THE COMPEN- j
SATION TO BE PAID THE J
CITY BY THE GRANTEEJ
FOR THE FRANCHISE
PRIVILEGE; SETTING
:ORTH THE TERM OFI
THE FRANCHISE; PRO-J
VIDING FOR A SEVER'
~BiLITY PROV SION;
, PROVIDING FOR ACCEP' j
TANCE OF THE FRAN'I
CHISE BY GRANTEE; AND J
PROVIDING AN EFFEC-r
TIVE DATE.
WHEREAS, said Ordinance
was on the day of
,2001, duly
approved and subscribed
by the Mayor of said City,
and the seal of
said City was thereto
affixed and attested
te by the City Secretary;
NOW, THEREFORE, TXU
E. lectric Company, doing
business as TXU Electric,
obl~gaHon of TXU Electric
Company, doing business as
TXU Electric, and of the
City, without waiver of any
other remedy by TXU Elec-
tri( Company, doing business
as 'rXU Electric, ar the City,
and TXU Electric Company,
doing business as TXU Elec-
tric, does hereby file this, its
wr tten acceptance, with the
City Secretary of the City of
Denton, Texas, in her office.
DS,TEiD this the _ day of
-- ,2001.
TXU ELECTRIC COMPANY
doing business as TXU
ELECTRIC
Bt':
k"TE:'ST:
o.,;CFPTANCE FILEDinthe
O'~fice of the City Secretary of
the City of Denton, Texas,
t~ is the day of
,2001.
Jennifer Walters~
City Secretary
Iq RC-10-22, 10-29, 11-05-01
hereby in all respects AC-
CEPTS, APPROVES AND j
AG REES TO said Ordinance,
sod the same shelJ constitute
and be a binding contractual