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2001-406 FILE REFERENCE FORM 2001-406 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials Amended by Ordinance No. 2011-180 10/04/2011JR S \Our Documents\Ord~nances\Ol\TXU Electric ROW Ord 2001 doc AN O ASC S, CHUTER 26, UTILITIES, A~ ~E~G A~ SUPERSED~G O~ANCE NO 2000-041, [BY EST~LISH~G ~O~ ~GULATIONS TO GOVE~ THE USE A~ OCC~ANCY OF P~LIC RIGHTS-OF-WAY BY PROVIDERS OF ELECTRIC UTILITY SERVIC~ ~ THE CITY OF DENTON, TEXAS, PROVID~G DEF~ITIONS, ~QUI~G SUCH USERS TO OBTA~ A F~NCHISE FROM THE CITY P~OR TO SUCH USE, P~SC~B~G THE COMPENSATION TO BE PAID TO THE CITY BY PROVIDERS, P~SC~B~G THE CO~ITIONS ~ER WHICH SUCH USERS MAY USE A~ OCC~Y THE P~LIC ~GHTS-OF-WAY, REQUIR~G ~ERGRO~G OF CO~UITS, ~Q~G JOlT USE OF POLES AND CONDUITS, ~Q~G THE MA~TEN~CE OF M~S A~ DATA REG~G FACILITIES ~ P~LIC ~GHTS- OF-WAY, PROVID~G FOR B~ORCEMENT OF THE REGULATIONS F~NCHIS~S G~TED TH~R, PROVID~G FOR PENALTIES ~ THE AMO~T OF $1S000 TO $50000 EACH, FOR EACH VIOLATION THE~OF, PROVID~G FOR OTHER ~ F~THER LEGAL ~MEDIES IN THE EVENT OF PROV~R'S VIOLATION OF TH~ PROVISIONS OF THIS O~ANCE OR OF F~C~ISE, PROVinG FOR GOVE~ENTAL IMM~ITY OF THE CITY A~ ITS EMPLOY~S, PROVID~G FOR ~S~NCE, PROVID~G A SEVE~ILITY PROVISION, PROVID~G AN EFFECTIVE DATE, A~ O~A~G OTHER PROVISIONS ~LATED TO THE S~JECT MATTER HEREOF ~E~Ag, the C~ty of D~nton finds ~ m th~ pubhc ~nt~mst to prowd~ that ~v~ ~nt~ty using ~e Pubhc R~ghts-of-Way for the prows~on of Electric Utility Se~lce shall, because of the ovem&ng pubhc heal~, safety ~d welf~e cons~deratmns associated w~th the prows~on of th~s se~me, 9omply wt~ ~ffom regulatmns governing such use, ~d ~E~AS, the C~ty of Denton finds ~t ~n the pubhc ~nterest to retmn control over the use of Pubhc R~ts-of-Way by prowders of Elecmc Utlhty Seduces to ensue agmnst Page 1 S \Our Documents\Ordmancos\01\TXU Electric ROW Ord 2001 doc ~nterference w~th the public convenience, to promote aesthetic considerations, to promote planned and efficient use of hmlted K~ght-of-Way space and to protect the public investment m Right-of-Way, and WHEREAS, Artmle XIII of the City Charter of the C~ty of Denton authorizes the City to prohtb~t the use of any street, alley, h~ghway, boulevard or grounds of the City by any pubhc utthty w~thout first obtmmng the consent of the City expressed by ordinance and paying compensation as prescribed by the City, and upon such terms and conditions as the City shall provide, and WHEREAS, the Oty of Denton finds that the granting of franchises for such use of the Public Pdghts-of-Way under the prows~ons of this Ordinance to providers of Electric Utility Serwce ~s the best means of assunng that the above-described interests of the Oty are promoted, and WHEREAS, the protection 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 SCT~ That th~s Ordinance expressly amends and supersedes Ordinance No 2000-041, prewously enacted by the Denton City Council on the 1st day of February, 2000 SECTION 2 That Chapter 26 of the City of Denton Code of Ordinances respecting Uttht~es, is hereby amended to add the following provisions, at Article VII thereof, entitled "Uniform Regulations to Govern the Use and Occupancy of Public Rights-of-Way by Providers of Electric Servme in the C~ty of Denton," by adding Sections 26-240, et seq thereto to read as follows Section 26-240 Defimt~ons. For the purposes of th~s Ordinance and for franchises granted hereunder, the following terms, phrases, words, abbrewat~ons and their denvatmns shall have the meaning g~ven herein When not tncons~stent with the context, words used in the present tense include the future tense, words ~n the plural number include the singular number, and words in the smgular number Page 2 S \Our Documeats\Ord~nances\0 I\TXU Electric ROW Ord 2001 doc include the plural number The word "shall" ~s always mandatory and not merely directory Words not defined shall be given their common and ordinary meaning These definitions shall be subject to revision after review by the C~ty to account for changes necessitated by retail competition ~n the electric utility industry commencing January 1, 2002 (a) "City" shall mean the City of Denton, Texas, a home rule municipal corporatmn (b) "Corporate limits" shall mean the corporate hmlts of the C~ty as smd hm~ts are now estabhshed or as such limits may hereafter be extended (c) "Customer" shall mean any person, finn, parmersh~p, assomaUon, corporation, company or orgamzat~on of any kind served by a Prowder hereunder w~thln the C~ty (d) "Electric Utility Service" shall include all sales of electrlc~ty, net of customer credits, to all customers within the corporate hnnts of the C~ty (e) "Electric Utility System" or "System" shall mean an electric power system ~nstalled and operated ~n the C~ty which shall include, but not be hnnted to, the generation, transnnss~on and d~stnbutlon famht~es, eqmpment and adm~mstrat~ve servmes necessary to provtde electric service for any use to the City and such extensions, additions or reductions as may hereafter be made (f) "Gross Revenues" shall mean all revenues received by the Provider from the prowslon of Electric Utility Service w~th~n the corporate hnnts of the Ctty to all customers within the C~ty (g) "Person" shall mean any person, finn, partnership, assomat~on, corporation, mumclpal corporation, company or organization of any kind (h) "Prowder' shall mean any Person who owns, operates, or otherwise controls an Electric Utility System for the provision of Elecmc Utility Service w~th~n the C~ty 0) "Pubhc R~ghts-of-Way" shall mean all of the pubhc streets, alleys, h~ghways, and pubhc thoroughfares of the C~ty, as they now ex~st or may be hereafter constructed, opened, lind out, or extended w~th~n the present hmlts of the City, or in such temtory as may hereafter be added to, consohdated, or annexed to the C~ty Page 3 S \Our DocuraeRts\Ordmances\Ol\TXU Electric ROW Ord 2001 doc Section 26-241 Franchise Required (a) Any Person who desires to occupy Public Rlghtsoof-Way for the purpose of providing Electric Utlhty Service to any Person or area of the City must obtmn a franchise from the City hereunder and shall comply with all prowslons of th~s Ordinance and the franchise granted hereunder The franchise granted by the C~ty shall be granted in accordance with Article XIII of the City Charter, and shall authorize the Prowder to use and occupy the present and future Pubhc R~ghts-of-Way for the purpose of constructing, erecting, owning, suspending, lnstalhng, extending, renewing, repmnng, mamtmmng, operating and conducting w~thln the city hm~ts of the C~ty, a plant or plants and poles, wires, pipehnes, cables, underground conduits, manholes, fiber optic cable solely for the provision, support, or control of the Electric Utility System, and all other famhtles and eqmpment needed and necessary for the mmntenance and operation of an Electric Utility System (b) A Provider seeking to obtmn a franchise shall make application therefor w~th the City Such apphcatlon shall consist of completing the Apphcatmn Form provided by the C~ty and filing the completed form with the C~ty, along with the required Apphcat~on Fee of $500 for all apphcants for an lmtml franchise The application fee shall not apply to the renewal or extension of a franchise by a Provider Upon receipt of the completed Apphcat~on Form and the Apphcatton Fee, and after reasonable opportumty for review of same, the City shall, by ordinance, grant a franchise to the applicant as provided herein (c) A franchme granted hereunder shall be hmlted to the prows~on by Provider of Electric Utility Serwces unless the franchise exphcltl¥ provides Provider the right to engage in related electric businesses or services All revenues from such related electric businesses and services shall be included m the definition of "Gross Revenues" set forth in Section 26-240(0 In the event Provider desires to use ~ts existing facilities, or construct new famhtms, in order to provide telecommunications service, local lnterconnecUon, network access service, leased fiber optic capacity, wdeo programming service or any other telecommumcatlons or telephony service to ex~s/mg or potential customers, Provider must obtmn additional and separate authorization Page 4 S \Our Doeurnents\Ordmances\01WXU Electric ROW Ord il001 doc from the City m a separate franchise or agreement for such activities to be conducted ~n the Public Rights-of-Way prior to their commencement, as provided by state law, including the payment of appropriate fees therefor (d) Franchises granted hereunder shall cover the geographical area of the entire corporate hmlts of the City, but shall not be construed to expand or limit a Provider's service area granted by the Pubhc Utility Commission of Texas The C~ty limits are subject to expansion or reduction by annexation and contraction of municipal boundaries In accordance with state law and regulations of the Pubhc Utility Commission of Texas, a franchised Provider may provide servlee to any and all areas that may be annexed to the City under the same terms and conditions of this Ordinance as the current areas now included within the City If the City approves any expansion or reduction of its corporate limits by annexation or contraction, the City will provide written notice to the Provider The Provider must revise its payments due to any expansion or reduction by annexation or contraction within a reasonable time after notice by the City, but no later than sixty (60) calendar days after receipt of notice (e) Franchises may be granted for a fixed term, not to exceed twenty (20) years (f) A franchise shall not be assignable, m whole or in part, except to an affiliate of a Provider whose rates and services are regulated by the Pubhc Utility Commission of Texas and by the City, without the express, advance, written consent of the governing body of the City, which consent shall not be unreasonably withheld, such consent to be evidenced by an ordinance that fully recites the terms and conditions, if any, upon which such consent to assign ;s given Section 26-242 Compensation to be paid to the City (a) As compensation for the rights and privileges conferred by a franchise granted pursuant to this Ordinance, Provider shall be required to pay to the C~ty, each quarter, a sum of money equal to four percent (4%) of the Provlder's Gross Revenues as defined here~n This obligation to pay compensation along with all the other obligations In this ordinance shall be contractual obligations which shall not be changed, abridged, or extingmshed by any act of the Legislature subsequent to the ~ssuanee of a franchise granted hereunder Page 5 S \Our Documents\Ordmances\01~TXU Elecmc ROW Ord 2001 doc (b) Each quarterly payment required by th~s Ordinance and the franchise shall be equal to four percent (4%) of the preceding quarter's actual smd Gross Revenues Each payment shall be due and payable on or before the last business day of the first month following the end of the preceding quarter by electronac funds transfer or by other means that prowde lmmedmtely available funds to the C~ty on the day the payment ~s due These payments (insofar as the Ctty has legal power so to provide and agree) shall be ~n lieu 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 kind, save and except regulatory expenses m excess of $25,000 under Section 33 023, Pubhc Utility Regulatory Act of Texas ("PURA")(Tex Utfl Code §33 023) or any similar or successor law, ad valorem taxes, sales and use taxes, specaal taxes and assessments for pubhc ~mprovements, and any fees assocmted w~th the use of C~ty- owned poles (c) A franchise granted hereunder may prowde for a payment period and schedule other than that specffied m subsecttons (a) and (b) ofth~s section (d) The compensation payable by Providers to the City as consideration for use and occupancy of the Pubhc Rights-of-Way may change for prowders with franchises extending beyond January 1, 2002 ~n accordance with Section 33 008, pURA (Tex Utfl Code §33 008) or any successor law For Prowders that are "electric utilities," as defined in PURA, the franchise fee to be pa~d by Prowders shall be determined by the City usmg the criteria set forth m §33 008, PURA or any successor law The new franchise fee shall be effective as of January 1, 2002 and Th~s shall replace the calculation of the franchme and right of way fee described in subsections (a) and (b) of thas section For electric cooperatives, the franchise fee to be prod by such Prowders shall also be determined by the C~ty ~n accordance w~th the criteria set forth in § 33 008, PURA or any s~mflar or successor law, and the new franchise fee shall be effective upon the ~mplementat~on by the electric cooperative Promder of customer choice ~ect~on 26-243 Underground condmts, use by City ofcondmts and poles Page 6 S \Our Documents\Ordmances\01\TXU Electnc ROW {)rd 2001 doc (a) Provider shall install underground at no expense to the C~ty all electric power distribution fac~httes within new resident~al subdivisions or commercial developments Prowded, however, Prowder wall be considered to have satisfied this obhgat~on to the extent that owners and developers of new residentml subdivisions and commercial developments actually install underground all electric power d~stnbutlon facthtles at their expense ~n compliance w~th the C~ty's development regulations, ~ncludlng, without hmltatmn, Section 3(b)(1)(b) of the C~ty's ~ntenm residential development regulations and any s~mdar or successor laws The Cxty may require existing facthtles to be moved underground at the C~ty's expense (b) Representatives of both the City and the Prowder shall meet periodically to 0) Consult and plan together regarding projects to be undertaken pursuant to this section The Prowder 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 Ctty, subject to the provisions of this section The specific scheduling of projects rests w~th the Provider, whmh shall make every reasonable effort to complete such projects within the time requested by the C~ty, (n) Rewew the City's undergroundlng program, including conversmns, pubhc projects and replacements, which have been accomphshed or are underway by the Prowder at the C~ty's expense and request, together with the City's plans for additional underground~ng, (Ul) Review the status of technology ~n the field of electric undergroundlng, 0v) Review the construction and operation and mmntenance costs of underground hnes versus overhead hnes, and (v) Review public projects anticipated by the C~ty Such meetings shall be held to achieve a contlnmng program for the orderly undergroundmg of electric lines in the C~ty Page 7 S \Om Document~\Ordmancea\01\TXU Electric ROW Ord 2001 doc (c) When undertaking a project of undergroundlng pursuant to subsection (b) of this section, the C~ty and the Provider shall work with other utilities or companies that have their lines overhead to have all lines undergrounded as part of the same project When other utilities or companies are placing their lines underground, the Provider shall cooperate with these utilities and compames and undertake to underground Provlder'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 its best efforts to coordinate its installation of new underground facilities with preexlstmg underground facilities of other companies (e) If Provider, in its sole discretion, determines that it has spare ducts in its underground conduits, or spare pins, crossarms, or space on any of its poles not then necessary for the provision of Electric Utility Service, and not needed for future anticipated load growth or emergenmes, Provider shall permit the City to use one such duct in each conduit, or reasonable spaces on poles, or both, for the City's police and fire alarm wires, traffic control wires or cable, fiber-optic lines connecting City facilities, or other similar, appropriate non-commercial, governmental uses, provided that such use by the City is in compliance with the Natmnal Electric Safety Code and at the expense of the City If Provider constructs or extends additional conduits or erects, additional poles, the City may require the Provider to provide one such duct in each conduit, or reasonable space on poles, or both, for the City's own use as aforesmd In either event, the City shall pay Provider a fmr rental therefor (f) City shall not sell, lease or otherwise make avmlable its rights to use Provlder's facilities as set forth herein to any third party for commercial purposes Such rights are provided solely for the non-commercial use of the City for governmental purposes However, this restriction shall not prevent the City from using the services of a third party commercial entity to manage or operate the City's facilities on behalf of the City, so long as no resale or other comme~clal use of such facilities shall occur Page 8 S \Our Documet~ts\Ordmanees\01\TXU Elec'~nc ROW Ord 2001 doc (g) Except as may be expressly authorized by tts franchtse, Prowder ~s not authorized to hcense or lease to any person or enttty or any other pubhc utfltty, any right to occupy or use the Ctty's Pubhc R~ghts-of-Way for the conduct of any related electric bustness or pursmt All revenues from such related electric bustnesses or pursmts shall be ~ncluded in the definltton of "Gross Revenues" set forth tn Sectmn 26-240(f) Seetton 26-244 Constructton and maintenance, excavatton (a) The constmctmn, maintenance, and operatton of Provtder's Electrm Utfltty System shall be subJeCt to lawful pohce regulations and ordinances of the C~ty, lncludtng, but not hrmted to, Sections 25-71, et seq, Denton Code of Ordtnances The placement of poles, excavations, and other constructton tn the streets, alleys, and other Public Rtghts-of-Way, shall tnterfere as httle as practmable wtth the use of the streets, s~dewalks, and alleys, and with the use of private property The C~ty shall have the right and power, at any ttme to order and reqmre Provider to remove and abate any pole, w~re, cable, or other structure that ~s unnecessarily dangerous to hfe or property In the event the Prowder, after notme, fails or refuses to act w~th~n a reasonable ttme, the C~ty shall have the power to remove or abate the same at the expense of the Prowder, all without compensation or habfltty for damages to Provider (b) Whenever the Provtder shall cause any opening or alteratton to be made ~n any of the Pubhc Raghts-of-Way for the purpose of ~nstalhng, mmntmmng, operating or repmnng ~ts Electric Utility System, the Provtder must obtatn a permit as reqmred tn Sections 25-71, et seq, Denton Code of Ordinances Provtded, however, a permtt shall not be reqmred for routine mmntenance ttems, mcludmg hanging a transformer, replacing poles or work performed to mtttate service to an mdtvtdual customer's property, that can be accomphshed within 48 hours A permtt will also not be reqmred for work that is incidental ~n nature, with the types of work that fall wtthm th~s exceptton betng those that may be agreed upon by Eng~neenng representattves from both Provtder and C~ty Prowder will nottfy the C~ty through its Eng~neenng Department at least 48 hours ~n advance of any routine matntenance that dtsmpts traffic flow, interferes wtth or conflmts w~th any ex~sttng or proposed street or thoroughfare Page 9 S \Our Docurnor~l~\Ordmances\01\TXU Electric ROW Ord 2001 doc expansion or that conflicts/interferes w~th or is in close proximity to existing City faclhties 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 qondltlon as ~t 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 m writing by the City to Provider, the C~ty may repair such portion of the Public Rights-of-Way that may have been disturbed by the Provider, and the cost shall be charged to the Provider (c) The Provider shall be responsible for the payment of all repair or maintenance costs incurred as a result of any defects, Impairments, or substandard condlt~on an 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 m 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, a Provider shall deposit with the City Finance Director a surety bond in the amount of $50,000, payable to the City and securmg the payment of repair or maintenance costs incurred as a result of any defects, impairments, or substandard condition m the Pubhc R~ghts-of-Way caused by the work of the Prowder or resultm~ from Prowder's activities in the Public R~ghts-of-Way The required surety bond must be with good and sufficient sureties, issued by a surety company authorized to transact business m the state hsted on the Department of Treasury's list of approved sureties, and satisfactory to the City Attorney in form and substance The bond and surety requirements under this subsection may be waived at the sole discretion of the City if the Provider provides acceptable evidence of self-insurance w~th the level, form, and proof of insurance sufficient to substitute for the surety requirements Such insurance shall be the same as the form of self ~nsurance ~nd~cated in Section 26-255 of this ordinance Page 10 S \Our Documents\Ordmances\01\TXU Electric ROW Ord 2001 doc (e) No prowsaons of th~s Ordinance shall be construed to prohibit C~ty from ~mpos~ng inspection or penmttlng charges and fees for excavation, maintenance and restoration projects by Prowder, and requmng adequate security therefor, to assure appropriate planmng, construction, ~nspectlon, completion and restoration of such projects (f) Engineering plans for those projects ~nvolwng significant constructmn ~n Pubhc R~ghts-of-Way shall be submttted to the City for approval no later than thirty (30) calendar days prior to the commencement of construction, whmh approval shall not be unreasonably withheld or delayed by the Ctty (g) Except for emergency repairs or emergency pawng cuts, a permit shall be obtmned from the C~ty prior to the ~mt~at~on of any construction, repmr, replacement, pamng cuts, or other excavation wltlUn Pubhc R~ghts-of-Way All reasonably practical alternatives to making pawng cuts wall be reqmred before pawng cuts wall be permitted In addition to any other permit reqmrement, the Provider shall submit a plan that prowdes for comphance w~th all federal, state, and C~ty reqmrements, including, but not hm~ted to, construction and restoration standards, stormwater quahty regulations, traffic control regulattons, and the Texas Professional Eng~neenng Practices Act Any plans submitted shall be detailed 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 tdentffy, in writing, that contractor and any subcontractors to the C~ty before a permit ~s ~ssued For the permit, the C~ty may reqmre Information as necessary so that adequate nottficat~on, commumcatmn, and points of contact for the Promder or ~ts contractor may be estabhshed (h) In the event Provider undertakes emergency repmrs, excavations, or pawng cuts for which a permit has not been obtmned that result ~n any d~srupt~ons to the pubhc's or the C~ty's use of Pubhc R~ghts-of-Way, the Prowder shall dehver notme to the C~ty of such repmrs, excavations, or pawng cuts no later than the end of the next working day following m~tmt~on of the work In the event such emergency repmrs, excavatmns, or pavmg cuts are reqmred on an arterial street dunng peak traffic periods, t e, 7-9 a m or 4-6 p m Monday through Friday, the Page 11 S \Our Documents\Ordmanees\01\TXU Electric ROW Ord 2001 doc Provider shall verbally notify the Denton Pohce Department at the time of commencement of such work (1) Erosion and sedimentation during construction or repmr work shall be controlled m accordance with the ordinances and regulations of the City generally applicable to excavations w~thm the City, as amended or revised from time to time Permanent eromon control shall be required upon completmn of all work Effective environmental and pollution control measures shall be mmntmned in accordance with City, State, and Federal requirements (j) 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 lights to identify the location of such excavations or obstructions, consistent with the Manual of Uniform Traffic Control Demces, and as further directed by the City and the Texas Department of Transportation (k) Work done ~n the Pubhe Rights-of-Way shall be planned and executed to m~mmlze t~me of construction and d~sruptlon to traffic and the general pubhc The work site must be rendered safe to traffic and the general public in accordance with normal utthty practice prior to workers leaving the site each day Once started, work must proceed without interruption to completion, including restoration and clean-up (1) Except for emergencies as determined by the Provider or under special circumstances as determined by the City's Director of Engineering and Transportation, work hours for work ~n the Pubhc Rights-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 (m) Provtder shall have the authority to trim trees upon and overhanging Public Rights-of-Way (including s~dewalks and driveways), after providing written notice to affected customers, so as to prevent the branches of the trees from coming ~nto contact w~th the w~res and Page 12 S \Our Docume~ts\Ordmances\01\TXU Electric ROW Ord 2001 doc cables of the Provider, provided that all trimming is done in compliance with the National Electric Safety Code and City Code provisions, and at no expense to the City (n) The City shall have the right to deny a permit for any proposed new or additional facilities within the Public Rights-of-Way if it determines there is insufficient space to accommodate the facilities, or if the Provider, or its subcontractors, are not m compliance with existing C~ty ordinances and standards or previously ~ssued permits (o) Prowder and City may agree that City shall perform paving cuts, excavation, or other construction or repairs m the Public Rights-of-Way on behalf of Provider, at such reasonable price and upon such reasonable terms as Provider and City may agree In the event of such agreement, then with respect to the work to be done by City pursuant to that agreement, the provisions of this Section shall not apply to Provider Section 26-245 Joint use of poles, trenches, and conduits (a) In order to reduce the number of poles and to avoid public safety concerns and visual clutter, the Provider may be required to attach its wires to poles owned and maintained by another Person, or to permit the wires of another public utility tO be attached to the poles owned and mamtmned by the Provider, upon reasonable terms and for just compensation for any additional facilities 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 ~f same are not otherwise resolved or determined within a reasonable time, then disputes arising under this Section shall be resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association Arbitration shall be by a panel of three arbitrators one selected by the Provider, one selected by the other public utility, and one experienced m the matters at issue and selected by the Prowder and the other public utility m accordance with the Commercial Arbitration Rules of the American Arbitration Assoc~ation The decision of the arbitrator shall be final and binding as to any matters submitted under this Section All costs and expenses incurred in connection with any such arbitration proceeding (including reasonable attorneys' fees) shall be borne by the party against which the Page 13 S \Our Doeuraents\Ordmances\01\TXU Eleetrtc ROW Ord 2001 doc demslon is rendered, or, ~f no decision is rendered, such costs and expenses shall be borne equally byI the Provider and the other pubhc utdlty If the arbitrator's dec,stun ~s a compromise, the determination of which party or part,es bears the costs and expenses ~ncurred ~n connection w~th any such arbitration proceeding shall be made by the arbitrator on the basis of the arbitrator's assessment of the relative merits of each party's pos~t~on The parties shall ~nstmct the arbitrator to render ~ts decision no later than ninety (90) calendar days after subm~sslon of the d~spute (c) The Provider may reqmre such other public utdlty to furntsh evidence of adequate ~nsurance and provide mdemmficat~on eovenng the Provider, and adequate bonds covenng the performance of such other pubhc utthty attaching to the Pmwder's poles, as a cond~tmn precedent to g~wng permission to such other pubhc utlhty to attach w~res to Promder's poles Provlder's reqmrements for such insurance and lndemmty must be reasonable (d) Prowder shall not be required to attach ~ts wires to the poles of another pubhc utility or to permit the wires of another pubhc utthty to be attached to Provlder's poles if it can be satisfactorily shown 0) that Provider will be subjected to increased risks of lntermptmn of service or habfl~ty for accidents, 00 the poles, wires, and appurtenances of such other pubhc utthty are not of the character, design, or construction reqmred by, or are not being rnmntmned m accordance w~th modem electric utility practice, or 0n) suffiment clearance or space ~s not avmlable on the pole Wires shall be located on poles m comphance with apphcable safety standards and shall not interfere w~th the erectmn, replacement, operation, repmr, or mmntenance of the w~res and appurte~tances of any other public utthty occupying the poles (e) Provlder's d~stnbut~on feeder hnes may be constructed as overhead lines, but such hnes shall be designed and constructed in an "armless" manner, to the extent such demgn and construction is techmcally feasible and ~n comphance with the National Electric Safety Code Page 14 S \Our Documcnts\Ordmances\01\TXU Electric ROW Ord 2001 doc "Armless" type construction means cross-arms up to four (4) feet m length phase to phase, or two (2) feet m length pole to phase (f) Provader may be reqmred by the City to share trench space with another public utility for the placement of cables, w~res, or ducts underground Compensation to the Prowder 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 lndemmficauon, as provided in subsection (a) of th~s Section Ducts, cables, or wires shall be placed an trenches in comphance with apphcable safety standards and m a manner that does not interfere with Provlder's cables or wires, as provided m subsection (b) of this Section (g) 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 its facilities by any other holder of a City franchise under Article XIII of the City Charter Section 26-246 Conformance w~th public ~mprovements Whenever, by reason of any changes, without limitation, of any street, sidewalk, curb, alley, h~ghway or pubhc way, or in the location or manner of constructing any water or wastewater p~pe, gas pipe, storm sewer, or other underground or overhead structure for any governmental purpose whatsoever, other than siting of competitive electric facllmes owned by the City, it shall be deemed necessary by the C~ty to remove, alter, change, adapt, or conform the underground or overhead facilities of Provider located in the Public Right-of-Way, such alterations or changes shall be made as soon as practicable by Provider when ordered in writing by the City, without elmm for reimbursement or damages agmnst the City Provided, however, if smd reqmrements impose a financial hardship upon the Provider, the Prowder shall have the right to present alternative proposals for the City's considerat~on The City shall not reqmre Provider to remove its facilities entirely from a street, sidewalk, curb, alley, h~ghway, or public way unless statable alternatives are avmlable for relocation of its facilities Section 26-247 Provider to mmntmn and file maps and assist in determlmng Provlder's USe of Pubhc Rights-of-Way. Page 15 S \Our Documents\Ordmances\01\TXU Electric ROW Ord 2001 doc (a) The Provider shall cooperate w~th the Caty at all t~mes by provad~ng timely and complete mformataon regarding the location of ats condmts, poles and faclhtaes, along wah such maps, plats, eonstmctaon documents and drawings as may exist or as may be created from t~me to time Provader and Caty shall cooperate and coordinate their efforts to make the most efficient and econommal use of their respective fatalities The Prowder shall at all times keep on file an the office of the Caty's D~rector of Enganeenng and Transportataon ("Director"), a current map, an a d~gatal format compatible w~th the C~ty's Geographac Information System ("G I S "), of the Promder's Electric Utdaty System wath~n the C~ty As extensions or modfficatlons of famht~es are made from tame to t~me, the Prowder shall penodmally file with the Director updated dag~tal maps showing those extensions or modlficatmns so that the City wall have current and accurate mformataon regarding the location and characteristics of the System The d~gltal mformataon shall ~nclude the location of fac~ht~es comprising the Systems, and all other information mamtmned by the Provader pertamang to the C~ty's adm~mstrat~on of the franchise, ~nclud~ng the depth of any buried transmission or d~stnbutmn hnes, to the extent such ~nformataon exmts If such mformat~on ~s not avmlable ~n d~g~tal format, a hard copy shall be provided A hard copy of the d~g~tal maps may be reqmred by the C~ty and shall be provided by the Prowder if so requested (b) The C~ty wall use the ~nformat~on provided by Prowders pursuant to th~s Section only for the purposes of protection and management of the Pubhc Raghts-of-Way The data base prowded by Provider in ~ts entirety will be treated as compet~tave ~nformataon and will not be disclosed m whole or ~n part, except that portions of such data may be prowded to third part,es as necessary for effiment management of the Pubhc R~ghts-of-Way S~ct~on 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~pehnes, cables, and condmts, and to do and permit to be done any underground or overhead work that may be necessary or proper m, across, along, over, or under Page 16 S \Our Docume~ts\Ordmances\01\TXU Electric ROW Ord 2001 doc the Public Rights-of-Way occupied by the Provider The City also reserves the right to change, in any manner, any curb, sidewalk, highway, alley, public way or street In permitting such work to be done, the City shall not be liable to the Provider for any damage so occasioned, but nothing herein shall relieve any other Person from respons~bthty for damages to the facthtms 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 Public Rights-of-Way, such grant shall be subject to the rights here~n granted or heretofore obtmned by the Provider In the event that the governing body of the City shall close or abandon any Public R~ght-of-Way that contmns existing faclhtles of the Provider, any conveyance of land within such closed or abandoned Public Pdght-of-Way shall be subject to the rights herein granted or heretofore obtmned by Provider Provided, however, that the Provider may be ordered to vacate any land so conveyed, if an alternate route ~s 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 facdltles (c) If the City shall reqmre Provider to adapt or conform its Electric Utthty 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 Public Right-of-Way, Provider shall not be bound to make any such changes until such other Person (except the City) shall have undertaken, w~th 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 Promder's property Provided, however, that the City shall never be liable for such reimbursement due to Provider from such Person (d) In determlmng the location of Provlder's lines and other facthtles w~thln the City, Provider shall mlmmlze interference w~th then-ex,sting underground structures of City or other utility franchises Likewise, in determining the location of the lines and other faclhtles of the City, City shall minimize interference w~th the existing facilities of Provider Sgctlon 26-249 Accounting. audit. ~nspect~on Page 17 S \Our Docum~pt~\Ordmane~s\Ol\TXU Electric ROW Ord 2001 doc (a) The Provider shall mmntmn, at its local office or pnnmpal place of bus~ness w~th~n the State, adequate books and records relating to the performance of its obligations under this Ordinance and its franchise The Provider shall mmntmn its books and records ~n a form and w~th coding sufficient to ~dentlfy its Gross Revenues through December 31, 2001 and, begmmng on January 1, 2002 and to the extent such ~nformatlon ~s avmlable to Prowder under applicable regulatory~ prowslons, the number of kWh of electricity delivered by the Provider to each retml customer whose consuming point of dehvery ~s located within the City, intending thereby to separately identify these relevant records of its System ~n the City in order to facthtate the City's review of the franchise fee payments The records of the Provider applicable to ~ts performance under th~s Ordinance and its franchise shall be made avmlable upon not less than ten (10) working days notice for ~nspectlon by the City at any time dunng normal working hours, subject to statutory and regulatory prowslons regarding the confident~ahty 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 ~ts franchise The omission by the City to exermse ~ts rights to any audit at any t~me shall not constitute a watver of such right City shall have the right to select auditors to make the audit Provider shall make avmlable to the auditor personnel and such records as are relevant to such audit, and shall make no charge to the City therefor Provider shall assist the C~ty during any audit coaducted under this Ordinance, including answering questions and providing any requested records or information Provider shall endeavor to provide requested records or information within twenty-one (21) calendar days of having received a written request therefor If the Provider cannot so provide such records and mformat~on, then on or before such twenty- first day after receiving the request therefor, the Provider shall notify the City or its representative that the requested records and mformatmn wall be made avmlable within an additional fourteen (14) calendar days, and the ~nformatmn and records shall be so prowded The cost of an audit pursuant to th~s prows~on shall be borne by the City Page 18 S \Our Documents\Orflmances\01\TXU Electric ROW Oral 2001 doc (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, m such reasonable form and detml sufficient to show the source and method of calculation of Provlder's Gross Revenue The acceptance of any statement or payment shall not estop the City from asserting that the amount paid is not the amount due or from recovering any deficit by any lawful proceeding, including interest (d) Underpayment of fees (0 In the event the Provider shall be determined to have under-remitted the fee required by this Ordinance, the Provider shall pay, in addition to the underpayments, interest on the underpayments at the rate of ten percent (10%) per annum from the time of the underpayment until payment is made (n) In a third instance of underpayment within any given 5-year period, the Provider shall also pay to the City ten percent (10%) of the total underpayment as a penalty for noncompliance with this Ordinance An "instance of underpayment" as used herein pertains to any separate incident of underpayment Provided, however, any underpayments of franchise fees for a single cause - such as failure to include m~scellaneous revenues an gross revenue - shall constitute one instance of underpayment Any penalty of less than One Hundred Dollars ($100 00) shall be wmved as a de mtmmus 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 Promder to the City within fifteen (15) calendar days of written notice of assessment by the City, in addition to any other rights or remedies which the City may have at law or in equity Page 19 S \Our Doeume~ats\Ordmances\01\TXU Electne ROW (3rd 2001 doe 0) For fmlure to complete construction in accordance w~th agreed plans, unless the C~ty spemfically approves the delay, the C~ty shall prowde Prowder not,ce of the fmlure as ~nd~cated ~n subsection (b) of th~s section Then for the second fmlure ~n any g~ven calendar year, Provider shall pay a penalty of One Hundred Dollars ($100 00) per day for each day that the fmlure continues, for the third fmlure ~n any gtven calendar year, Prowder shall pay a penalty of Two Hundred Dollars ($200 00) per day for each day that the failure continues, and for any subsequent fmlure ~n any g~ven calendar year, Prowder shall pay a penalty of F~ve Hundred Dollars ($500 00) per day for each day that the fmlure continues and the franchise shall be subject to termination for material breach at the optmn of C~ty under Sectmn 26-251, or (n) For fmlure to prowde data, documents, reports, or ~nformatton reqmred to be furmshed hereunder to the C~ty, or to reasonably cooperate w~th the C~ty dunng an audit reqmred under the terms hereunder, the C~ty shall prowde Provider notme of the fmlure as mdmated ~n subsection (b) of th~s section Then for the second fmlure ~n any g~ven calendar year, Prowder shall pay a penalty of One Hundred Dollars ($100 00) per day for each day the molat~on occurs or continues, for the third failure ~n any g~ven calendar year, Provider shall pay a penalty of Two Hundred Dollars ($200 00) per day for each day that the fadure continues, and for any subsequent failure ~n any gtven calendar year, Provider shall pay a penalty of F~ve Hundred Dollars ($500 00) per day for each day that the fmlure continues and the franchise shall be subject to termination for material breach at the option of C~ty under Section 26-251, or (hi) For failure to comply w~th any financial obligation reqmred here~n, the C~ty shall prowde Prowder not,ce of the fmlure as ~ndmated ~n subsection Page 20 S \Our Documen~s\Ordmances\0l\TXU Elecme ROW Ord 2001 doc (b) of this section Then for the second failure in any given calendar year, Provider shall pay a penalty of One Hundred Fifty Dollars ($150 00) per day for each day that such noncompliance continues, for the third failure m any given calendar year, Provider shall pay a penalty of Three Hundred Dollars ($300 00) per day for each day that the failure continues, and for any subsequent failure in any given calendar year, Provider shall pay a penalty of Five Hundred Dollars ($500 00) per day for each day that the failure continues and the franchise shall be subject to termination for material breach at the option of City under Section 26-251 (b) Prtor to imposing a penalty under subparagraphs 0) through (m) above and/or adopting a resolution under subparagraph 0v) 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 Prowder'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 the City Council meeting at which such resolution is scheduled to be considered by the Council The notice to the Provider shall include a list of the failures complmned of Provider shall have an opportunity to address the Cotmml at such public meeting Section 26-251 Forfeiture and termination (a) In addition to all other rights and powers retained by the City under this Ordinance or otherwise, the City reserves the right to forfeit and terminate a franchise granted pursuant to the promslons hereof and all rights and pnwleges of the Provider hereunder, ~n 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 0) Violation of any material provision of this Ordinance or a franchise granted hereunder, or any role, order, regulation or determination of the Page 21 S \Our Documents\Ord~nances\01\TXU Electric ROW Ord 2001 doc C~ty made pursuant to th~s Ordinance that ~s not cured or corrected ~n accordance with the prows~ons ofth~s Ordinance, or (n) An attempt by Prowder to evade any provlsmn of th~s Ordinance or its franchise, or to practme any fraud or deceit upon the C~ty or ~ts residents (b) The foregmng matters described m paragraph (a) above shall not constitute a material breach of th~s Ordinance ~f the wolat~on occurs w~thout fault of the Prowder, or occurs as a result of c~rcumstances beyond Prowder's control which could not have been avoided as a result of the exercise of reasonable care Prowder shall not be excused by mere economm hardship, or by the m~sfeasance or malfeasance of ~ts d~rectors, officers, agents, or employees (c) The City shall make a written demand that the Prowder comply w~th any such provision, rule, order, or determination under or pursuant to th~s Ordinance or ~ts franchise If the wolatton by the Provtder continues for a period of thirty (30) calendar days following such written demand, w~thout the C~ty rece~wng wrttten proof and substantiation from Provider that the reqmred corrective action has been taken, or ~s being actively and expeditiously pursued, the C~ty may take under consideration the ~ssue of tenmnat~on of the franchise of Provider The C~ty shall set a heanng, and shall cause to be served upon Provider, at least fifteen (15) calendar days prior to the date of such heanng, a written notice of intent to request such termtnat~on and the t~me and place of the hearing Pubhc not,ce shall be g~ven of the hearing and the ~ssue or ~ssues wluch the C~ty ~s to constder At smd heanng, the govermng body of the C~ty shall hear and consider the ~ssue or ~ssues and shall hear any person interested there~n At smd heanng, the govermng body of the City shall determine, ~n ~ts sole discretion, whether or not any uncorrected wolat~on by the Prowder still exists (d) If the C~ty shall determine that an uncorrected material wolat~on by the Provider stall exists, and was the fault of the Provider, and w~th~n its control, and could have been avoided w~th the exercise of reasonable care, the C~ty may declare the franchise of the Prowder forfeited and terminated, or ~n the alternative, the Councd may grant to Provider a further period of t~me to cure the wolatlon Page 22 S \Our Docum~nt~\Ordmances\01\TXU Electric ROW Ord 2001 doc (e) The failure of the City to insist in any one or more instances upon the strict performance of any one or more of the terms or provisions of this Ordinance shall not be construed,as a waver or rellnqulshmant for the future of any such term or provision, and the same shall continue m full force and effect No waiver or relinquishment shall be deemed to have been made by the City unless sad waver or relinquishment ~s in writing and signed by the City Section 26-252 Other legal remedies (a) Nothing herein contaned shall hmlt or restrict any legal rights that the City may possess arising from any alleged violation of this Ordinance or a franchise by a Provider The City retans all other nghts, both legal and equitable, to which it is entitled under the law (b) Nothing herein contaned shall limit a Promder's right to appeal a determination, act, or order of the City as provided for by the Constitution and laws of the State of Texas, including the Public Utdlty Regulatory Act of Texas, as amended, or its successor statute S,ctlon 26-253 Legal capacity of provider The Provider shall be a legal entity with legal capacity to operate, construct, reconstruct, and mantan an electric transmission and distribution system in the City in its properly certfficatcd service area S~ctlon 26-254 Govemmantal immunity All of the provisions contmned in this Ordinance are hereby declared to be for a public purpose, and are in the interests of the health, safety, and welfare of the general public Any member of the governing body of the City, or City official or employee charged with the enforcement of this Ordinance, acting for or on behalf of the City in the discharge of his or her official duties, shall not thereby render himself or herself personally liable, and he or she is hereby relieved from any and all personal liability for any damage that might accrue to any person or property as a result of any act reqmred or permitted in the discharge of his or her sad duties Section 26-255 Insurance Page 23 S \Our Documenls\Ordlnances\01\TXU Electric ROW Ord 2001 doc Provider will insure agmnst all the risks undertaken pursuant to its franchise, ~ncludlng the lndemmficatlon mqmred in the franchise 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 in accordance with sound accounting and risk-management practices Such ~nsurance coverage or plan of selfqnsurance is subject to the approval of the R~sk Manager of the City, whose approval shall not be unreasonably withheld or delayed A certificate of insurance shall be prowded to the City annually, no later than October 1 for each year during the term of Prowder's franchise, evidencing such coverage, and addltmnally within thirty (30) calendar days of any substantial change in the nature of its coverage under this Section Should Prowder elect to self-insure, its annual notme to the City shall contain information clearly ~dentffy~ng the process for filing a clmm agmnst such coverage Section 26-256 Severabtht¥ If any section, subsection, paragraph, sentence, clause, phrase or word in th~s Ordinance, or the apphcatlon thereof to any person or circumstances is held ~nvahd by any court of competent jurisdiction, such holding shall not affect the validity of the remalmng portions of this Ordinance, and the C~ty Council of the City of Denton, Texas hereby declares ~t would have enacted such remmmng portions of th~s Ordinance despite any such lnvahd~ty SECTION 3 It ~s hereby officmlly found and determined that the meeting at which this Ordinance was passed was open to the public as required by law, and that public notice of the time, place and purpose of smd meeting was given as required by law SECTION 4 That this 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 pubhshed twice in the Denton Record-Chronicle, the official newspaper of the City of Denton, Texas, w~thln ten (10) days of the date of ~ts passage, and it is accordingly SO ORDAINED PASSED AND APPROVED th~s the /b¢ dayof ~. ~.~ ,2001 Page 24 $ \Our Documcnts\Ordmances\01\TXU Electric ROW Ord 200l doc EULINE BROCK, MAYOR ATTEST' JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY Page 25