2000-041 NOTE. Arended by Ordinance No. 2001-406.
ORDINANCE NO ,~ff~0~ ~(r//
AN ORDINANCE AMENDING THE CITY OF DENTON CODE OF ORDINANCES,
CHAPTER 26, UTILITIES, AND AMENDING AND SUPERSEDING ORDINANCE NO 99-
373, BY ESTABLISHING UNIFORM REGULATIONS TO GOVERN THE USE AND
OCCUPANCY OF PUBLIC RIGHTS-OF-WAY BY PROVIDERS OF ELECTRIC UTILITY
SERVICE IN THE CITY OF DENTON, TEXAS, PROVIDiNG DEFINITIONS, REQUIRING
SUCH USERS TO OBTAIN A FRANCHISE FROM THE CITY PRIOR TO SUCH USE,
PRESCRIBING THE COMPENSATION TO BE PAID TO THE CITY BY PROVIDERS,
PRESCRIBING THE CONDITIONS UNDER WHICH SUCH USERS MAY USE AND
OCCUPY THE PUBLIC RIGHTS-OF-WAY, REQUIRING UNDERGROUNDING OF
CONDUITS, REQUIRING JOINT USE OF POLES AND CONDUITS, REQUIRING THE
MAINTENANCE OF MAPS AND DATA REGARDING FACILITIES IN PUBLIC RIGHTS-
OF-WAY, PROVIDING FOR ENFORCEMENT OF THE REGULATIONS AND
FRANCHISES GRANTED THEREUNDER, PROVIDING FOR TWO PENALTIES IN THE
AMOUNT OF $150 00 EACH, FOR EACH VIOLATION THEREOF, PROVIDING FOR
TWO PENALTIES IN THE AMOUNT OF $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 C~ty of Denton finds it ~n the pubhc ~nterest to provxde that every entity
using the Pubhc R~ghts-of-Way for the prowmon of Elecmc Utd~ty Service shall, because of the
Page 1
ovemdlng public health, safety and welfare considerations associated with the prowslon of th~s
senate, comply with uniform regulations govemmg such use, and
WHEREAS, the C~ty of Denton finds it an the pubhc ~nterest to retain control over the
use of Pubhc Paghts-of-Way by providers of Electric Utlhty Services to ensure against
interference w~th the pubhc convemance, to promote aesthetic considerations, to promote
planned and efficient use of hmlted Paght-of-Way space and to protect the public investment ~n
R~ght-of-Way, and
WHEREAS, Article XIII of the C~ty Charter of the City of Denton authorizes the City to
prohibit the use of any street, alley, highway, boulevard or grounds of the C~ty by any pubhc
utlllty without first obtaining 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 City shall
provide, and
WHEREAS, the C~ty of Denton finds that the granting of franchises for such use of the
Public l~ghts-of-Way under the provisions of tills Ordinance to prowders of Electric Utlhty
Service is the best means of assunng that the above-described interests of the City 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
SECTION 1 That tins Orchnance expressly amends and supersedes Ordinance No 99-
373, previously enacted by the Denton C~ty Cotmcfl on the 12th day of October, 1999
SECTION 2 That Chapter 26 of the City of Denton Code of Ordinances respecting
Utlhties, as hereby amended to add the following prows~ons, at Article VII thereof, entitled
"Uniform Regulations to Govern the Use and Occupancy of Pubhe Pughts-of-Way by Providers
Page 2
of Electric Service m 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 £ollow~ng
terms, phrases, words, abbrewat~ons and their derivations shall have the meaning g~ven here~n
When not ~nconmstent w~th the context, words used ~n the present tense ~nclude the future tense,
words m the plural number include the s~ngular number, and words ~n the s~ngular number
~nclude the plural number The word "shall" ~s always mandatory and not merely d~rectory
Words not defined shall be g~ven their common and orchnary meamng These defimt~ons shall
be subject to rews~on after rewew by the C~ty to account for changes necessitated by retail
compeOt~on ~n the electric utility industry commencing January 1, 2002
(a) "C~ty" shall mean the C~ty of Denton, Texas, a home rule mtm~c~pal corporation
(b) "Corporate hm~ts" shall mean the corporate hm~ts of the C~ty as smd hm~ts are
now estabhshed or as such hm~ts may hereafter be extended
(c) "Customer" shall mean any person, firm, partnership, association, corporation,
company or orgamzat~on of any land served by a Prowder hereunder w~th~n the C~ty
(d) "Electric Utflgy Service" shall ~nclude all sales of electricity, net of customer
credits, to all customers w~tlun the corporate hm~ts 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 ~nclude, but not be hm~ted to, the generation,
transmission and d~stnbut~on facilities, eqmpment and adm~mstrat~ve services necessary to
prowde electric service for any use to the C~ty and such extensions, additions or reductions as
may hereaiter be made
Page 3
(f) "Gross Revenues" shall mean all revenues received by the Provider from the
provlsmon of Electric Utfllty Servmce within the corporate limmts of the Cmty to all customers
wmthmn the City
(g) "Person" shall mean any person, firm, partnershmp, association, corporation,
municmpal eorporatmn, company or orgamzat~on of any kind
(h) "Prowder" shall mean any Person who owns, operates, or otherwise controls an
Electric Utility System for the provms~on of Electric Utility Service w~th~n the City
(1) "Pubhe Rights-of-Way" shall mean all of the pubhc streets, alleys, lughways, and
public thoroughfares of the C~ty, as they now exmst or may be hereafter constructed, opened, laid
out, or extended w~ttun the present limits of the C~ty, or in such territory as may hereafter be added
to, eonsohdated, or annexed to the City
Section 26-241 Franchise remmred,
(a) Any Person who desires to occupy Pubhc Rights-of-Way for the purpose of
providing Elect'nc Utflmty Service to any Person or area of the City must obtmn a franchise from
the C~ty hereunder and comply wroth all provisions of flus Ordinance and the franehmse granted
hereunder The franchise granted by the Cmty shall be granted an accordance with Article XIII of
the Cmty Charter, and shall authorize the Provider to use and occupy the present and future Pubhc
R~ghts-of-Way for the purpose of constructing, erecting, owning, suspendmng, installing,
extendmg, renewmg, repamng, mamtalmng, operating and conductmg w~thm the emty hmits of
the C~ty, a plant or plants and poles, wires, pmpehnes, cables, underground condmts, manholes,
fiber optic cable solely for the prows~on, support, or control of the Electric Utility System, and
all other £aclhtles and equipment needed and necessary for the maintenance and operation of an
Electric Utility System
Page 4
(b) A Pmxader seeking to obtmn a franchise shall make apphcat~on therefor w~th the
C~ty Such application shall consist of completing the Apphcatlon Form prowded by the C~ty
and fihng the completed form with the C~ty, along w~th the reqmred Apphcat~on Fee of $500
Upon receipt of the completed Apphcatlon Form and the Apphcatmn Fee, and after reasonable
opportunity for review of same, the City shall, by ordinance, grant a franchise to the apphcant as
prowded here~n
(c) A franchise granted hereunder shall be hm~ted to the provlsmn by Prowder of
Electric Utility Services In the event Provider desires to use ~ts ex~stlng facilities, or construct
new faclht~es, ~n order to pmwde telecommumcat~ons service, local mterconnect~on, network
access service, leased fiber optic capacity, video programming servme or any other
telecommumeat~ons or telephony service to existing or potential customers, Prowder must obtmn
addmonal and separate anthonzatlon from the C~ty for such actlwt~es to be conducted m the
Pubhc Raghts-of-Way prior to their commencement, as pmwded by state law, including the
payment of appropriate fees therefor
(d) Franchmes granted hereunder shall cover the geographical area of the entire
corporate limits of the C~ty, but shall not be construed to expand or hmlt a Prowder's service
area granted by the Pubhc Utility Commass~on of Texas The City limits are subject to
expansion or reduction by aunexat~on and contraction of mamc~pal boundaries In accordance
w~th state law and regulations of the Public Utd~ty Commission of Texas, a franchised Provider
may promde servme to any and all areas that may be annexed to the C~ty under the same terms
and cond~taons of this Ordinance as the current areas now included w~thm the C~ty If the C~ty
approves any expansion or reduction of ~ts corporate limits by annexation or contraction, the C~ty
will prowde written notme to the Pmwder The Provider must rewse ~ts payments due to any
Page 5
expansion or reduction by annexation or contraction wxth~n a reasonable t~me after notme by the
Cxty, but no later than s~xty (60) calendar days after receipt of notice
(e) Franchxses 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, whmh consent shall not be unreasonably w~thheld, such
consent to be emdenced by an ordinance that fully recites the terms and conditions, ff any, upon
whmh such consent to assign ~s given
Section 26-242 Comnensat~on to be pard to the C~ty
(a) As compensation for the rights and privileges conferred by a franchme granted
pursuant to th~s Ordinance, Provider shall be reqmred to pay to the C~ty, each quarter, a sam of
money equal to four percent (4%) of the Prowder's Gross Revenues as defined hereto
(b) Each quarterly payment reqmred by th~s Ordinance and the franchise shall be
equal to four percent (4%) of the precechng 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 precedmg quarter by electromc funds transfer or by other means that prowde immediately
available funds to the C~ty on the day the payment ~s due These payments (insofar as the C~ty
has legal power so to prowde and agree) shall be m heu of, and shall be accepted as payment for
all of Prowder's obligations to pay other charges for the rental of the Pubhc Rights-of-Way,
franchise taxes, or other taxes of every kind, save and except ad valorem taxes, sales and use
taxes, specml 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 Prowders w~th franchises extending
beyond January 1, 2002, m accordance w~th Section 33 008, Pubhe Utthty Regulatory Act of
Page 6
Texas ("PURA") (Tex UUl Code §33 008) For "electric utlhtles," as defined in PURA, the
City shall determine the franchise fee to be paxd by Prowders using the criteria set forth xn
§33 008, PURA The new franchise fee shall be effective as of January 1, 2002, and shall
replace the calculation of the francluse fee descnbed m subsections (a) and (b) of th~s section
For electric cooperatives, the C~ty shall determine the franchise fee to be paid by such Providers,
also xn accordance w~th the cntena set forth xn § 33 008, PURA, and the new francluse fee shall
be effectuve upon the ~mplementatlon by the electric cooperatxve Prowder of customer chmce
Section 26-243 Underground condmts, use by C~t¥ of condmts and poles
(a) Prowder shall xnstall underground at no expense to the Cxty all electnc power
d~stnbut~on fatalities wxthxn new resxdentaal subdivisions or commercial developments The Cxty
may reqmre factht~es to be moved underground at the C~ty's expense
(b) Representatives of both the C~ty and the Provider shall meet penodmally to
(0 Consult and plan together regarding projects to be undertaken pursuant to
flus section The Provider shall provide non-binding "ballpark" cost estimates for
planmng purposes at no cost to the City The final decision as to whmh projects are
selected rests w~th the C~ty, subject to the prows~ons of this section The specffic
scheduhng of projects rests w~th the Prowder, which shall make every reasonable effort
to complete such projects within the t~me requested by the City,
(11) Rewew the City's underground~ng program, ~ncludmg conversions, pubhc
projects and replacements, which have been accomphshed or are underway by the
Promder at the C~ty's expense and request, together w~th the C~ty's plans for additional
undergroundmg,
(nl) Remew the status of technology m the field of electric underground~ng,
P~e7
(in) Review the construction and operation and mmntenance costs of
underground hnes versus overhead hnes, and
Ov) Review public projects anticipated by the City
Such meetmgs shall be held to achieve a continuing program for the orderly
undergroundlng of electric lines in the City
(c) When undertaking a project of undergroundmg pursuant to subsection (b) of this
section, the City and the Provider shall work with other utilities or companies that have their
lines overhead to have all lines undergmunded as part of the same project When other utilities
or companies are placing their hnes underground, the Provider shall cooperate with these utilities
and companies and undertake to underground Provlder's faclhtles are part of the same project
where feamble, provided, however, the Provider shall have no such obligation absent
reimbursement of the Promder's cost by the City
(d) The Provider shall use its best efforts to coordinate ~ts installation of new
underground facilities with preexisting underground facilities of other companies
(e) If Provider, in Its sole discretion, determines that it has spare ducts in ~ts
underground conduits, or spare pros, cmssarms, or space on any of its poles not then necessary
for the provision of Electric Utility Service, and not needed for future anticipated load growth or
emergencies, Provider shall permit the C~ty to use one such duct in each conduit, or reasonable
spaces on poles, or both, for the C~ty'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 C~ty is in comphance w~th the National Electric
Safety Code and at the expense of the City If Provider constructs or extends additional eondmts
or erects additional poles, the Cay may reqmre the Provider to provide one such duct in each
Page 8
condmt, or reasonable space on poles, or both, for the Cxty's own use as aforesaid In exther
event, the City shall pay Provider a fmr rental therefor
(f) City shall not sell, lease or otherwise make available its rights to use Provlder's
fac~htles as set forth hereto to any tlurd party for commercial purposes Such rights are prowded
solely for the non-commercial use of the C~ty for governmental purposes However, this
restriction shall not prevent the City from using the services of a third party commermal entity to
manage or operate the City's facd~tles on behalf of the City, so long as no resale or other
commercml use of such facd~ties shall occur
(g) Provider ~s not authorized to license or lease to any person or entity or any other
public utility, any right to occupy or use the City's Public Rights-of-Way for the conduct of any
private business or pursuit
Section 26-244 Construction and maintenance, excavation
(a) The construction, maintenance, and operation of Provlder's Electric Utlhty
System shall be subject to lawful police regulations and ordinances of the City, including, but not
limited to, Sections 25-71, et seq, Denton Code of Ordinances The placement of poles,
excavations, and other construction in the streets, alleys, and other Public Rights-of-Way, shall
interfere as little as practicable w~th the use of the streets, sidewalks, and alleys, and w~th the use
of private property The C~ty shall have the right and power, at any t~me to order and require
Prowder to remove and abate any pole, wire, cable, or other structure that is urmecessanly
dangerous to life or property In the event the Provider, after notme, fmls 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 Prowder, all without compensation or hablhty for damages to Provider
(b) Whenever the Pmwder shall cause any opemng or alteration to be made in any of
the Pubhc Rtghts-of-Way for the purpose of lnstalhng, mmntalnmg, operating or repalnng ~ts
Page 9
Electric Utility System, the Provider must obtain a permit as reqmred in Sections 25-71, et seq,
Denton Code of Ordinances The work shall be completed at no expense to the City within a
reasonable time The Provider shall, upon the completion of such work, restore such portion of
the Pubhe Raghts-of-Way to as good or better condition as it was before the opening or alteration
was so made and will promptly remove any debris Should the Provider fall to complete
restoration after ten (10) calendar days' notice provided m writing by the C~ty to Provider, the
City may repair such portion of the Public Rights-of-Way that may have been disturbed by the
Provider, and the cost shall be charged to the Provider
(c) The Provider shall be responsible for the payment of all repair or maintenance
costs ~neurred as a result of any defects, lmpmrments, or substandard condition m the Public
Pdghts-of-Way caused by the work of the Promder for two years after the C~ty's acceptance of
the completed work, provided however, that the Provider remains responsible for repmr and
mmntenance 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 francluse granted hereunder, and as a
condition precedent to the effectiveness of the franchise, the Provider shall deposit w~th the City
Finance Director a surety bond in the amount of $50,000, payable to the City and secunng the
payment of repair or maintenance costs incurred as a result of any defects, impairments, or
substandard condition in the Public Raghts-of-Way caused by the work of the Provider or
resulting from Provlder's activities in the Public Rtghts-of-Way The required surety bond must
be with good and sufficient sureties, issued by a surety company authorized to transact business
in the state, and satisfactory to the City Attorney in form and substance
(e) No provlslons of this Ordmance shall be construed to prohibit City from imposing
inspection or permitting charges and fees for excavation, mmntenance and restoration projects by
Page 10
Provider, and requmng adequate security therefor, to assure appropriate planning, construction,
inspection, completion and restoration of such projects
(f) Engmeenng plans for those projects ~nvolwng slgmficant constructmn ~n Pubhc
Rxghts-of-Way shall be submitted to the C~ty for approval no later than thirty (30) calendar days
pnor to the commencement of construction, which approval shall not be unreasonably w~thheld
or delayed by the City
(g) Except for emergency rep~urs or emergency pawng cuts, a permit shall be
obtmned fi:om the City prior to the mttmtlon of any construction, repair, replacement, paving
cuts, or other excavation w~thln Public Raghts-of-Way All reasonably practical alternatives to
making pawng cuts will be reqmred before pawng cuts w~ll be permitted In addition to any
other perrmt requirement, the Provider shall submit a plan that provides for compliance w~th all
federal, state, and City requirements, including, but not hmlted to, construction and restoration
standards, stormwater quality regulations, traffic control regulations, and the Texas Professional
Eng~neenng Practices Act Any plans submitted shall be detmled to the satisfaction of the City's
D~rector of Engmeenng and Transportation If any work ~s to be done by an ~ndependent
contractor or subcontractor, the Prowder must identify, in writing, that contractor and any
subcontractors to the C~ty before a penmt ~s issued For the permit, the C~ty may reqmre
~nformat~on as necessary so that adequate notfficat~on, commumcat~on, and points of contact for
the Provider or its contractor may be established
(h) In the event Prowder undertakes emergency repmrs, excavations, or pawng cuts
for whmh a permit has not been obtmned that result ~n any dmrupt~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,
excavatxons, or pawng cuts no later than the end of the next working day following m~t~at~on of
the work In the event such emergency repmrs, excavations, or paving cuts are required 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 Police Department at the time of commencement of
such work
(0 Erosion and sedimentation dunng construction or repair work shall be controlled
in accordance w~th the ordinances and regulations of the C~ty generally apphcable to excavations
w~th~n the C~ty, as amended or rewsed from t~me to time Permanent erosion control shall be
reqmred upon completion of all work Effective environmental and pollution control measures
shall be malntmned in accordance with C~ty, State, and Federal requirements
(.1) When Provider shall make or cause to be made excavations or shall place
obstructions ~n any Public Rights-of-Way, the Provider shall place, erect, and maintain burners
and hghts to ~dentlfy the location of such excavations or obstructions, consistent w~th the Manual
of Uniform Traffic Control Devices, and as further d~rected by the C~ty and the Texas
Department of Transportation
(k) Work done m the Pubhc R~ghts-of-Way shall be planned and executed to
m~mm~ze t~me of construction and dasrupt~on to traffic and the general pubhc The work s~te
must be rendered safe to traffic and the general pubhc m accordance w~th normal utthty practice
prior to workers leaving the site each day Once started, work must proceed w~thout ~ntermpt~on
to completion, including restoration and cleanmp
(1) Except for emergencies as determined by the Prowder or under special
c~mumstances as determined by the C~ty's D~rector of Engtneenng and Transportation, work
hours for work m the Pubhc Raghts-of-Way wall 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 specffically
permitted by the C~ty
Page 12
(m) Provider shall have the authority to trim trees upon and overhanging Public
R~ghts-of-Way (including s~dewalks and driveways), after prowdlng written notme to affected
customers, so as to prevent the branches of the trees from coming ~nto contact w~th the w~res and
cables of the Prowder, provided that all trimming ~s done m compliance with the National
Electric Safety Code and Caty Code provisions, and at no expense to the C~ty
(n) The C~ty shall have the right to deny a permit for any proposed new or additional
facfl~tles w~th~n the Pubhc Rights-of-Way ff ~t detenmnes there ~s ~nsufficlent space to
accommodate the facilities, or if the Promder, or xts subcontractors, are not ~n comphance wxth
exlstxng City ordinances and standards or previously ~ssued permits
(o) Prowder and C~ty may agree that C~ty shall perform pawng cuts, excavation, or
other constmctxon or repmrs xn the Pubhc Raghts-of-Way on behalf of Provider, at such
reasonable price and upon such reasonable terms as Provider and Cxty may agree In the event of
such agreement, then wxth respect to the work to be done by C~ty pursuant to that agreement, the
prows~ons of this Section shall not apply to Prowder
Section 26-245 Joint use of poles, trenches, and condmts
(a) In order to reduce the number of poles and to avoid public safety concerns and
wsual clutter, the Prowder may be reqmred to attach xts w~res to poles owned and mmntamed by
another Person, or to permit the wxres of another pubhc utility to be attached to the poles owned
and mamt~uned by the Prowder, upon reasonable terms and for just compensation for any
additional facilities of Promder that may be required
(b) In the event that Provtder and such other pubhc utility are unable to agree on
terms and compensatxon, or ff same are not otherwise resolved or determined wxthm a reasonable
t~me, then d~sputes ansxng under this Section shall be resolved by arb~tratxon ~n accordance wxth
the Commercml Arbitration Rules of the American Arbitration Assocmtlon 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 utility in accordance with the Commercial Arbitration Rules of the American Arbitration
Assocmtaon The dec~saon of the arbitrator shall be final and binding as to any matters submitted
under thls Section All costs and expenses recurred in connection with any such arbitration
proceeding (ancludmg reasonable attorneys' fees) shall be borne by the party against which the
decision as rendered, or, af no decision as rendered, such costs and expenses shall be borne
equally by the Prowder and the other public utility If the arbitrator's decision is a compromise,
the detennmataon of which party or parties bears the costs and expenses incurred in connection
with any such arbitration proceeding shall be made by the arbitrator on the basis of the
arbitrator's assessment of the relative merits of each party's position The parties shall instruct
the arbitrator to render its decision no later than mnety (90) calendar days after submission of the
dispute
(c) The Provider may require such other pubhe utlhty to furnish evidence of adequate
Insurance and provide indemmficatlon covenng the Provider, and adequate bonds covenng the
performance of such other pubhc utlhty attaching to the Provader's poles, as a conchtlon
precedent to giving penmssaon to such other public utlhty to attach wires to Provlder's poles
Provader's,reqturemants for such insurance and indemnity must be reasonable
(d) Provider shall not be required to attach its wires to the poles of another pubhc
utlhty or to penmt the wares of another public utility to be attached to Provlder's poles ff at can
be satisfactorily shown
0) that Provider will be subjected to increased risks of Interruption of service
or hablllty for accidents,
Page 14
(11) the poles, wires, and appurtenances of such other public utility are not of
the character, design, or construction required by, or are not being
mamtmned ~n accordance with modem electric utility practice, or
(m) sufficient clearance or space is not available on the pole
Wires shall be located on poles m eomphance with applicable safety standards and shall not
interfere with the erection, replacement, operation, repair, or mmntenance of the wires and
appurtenances of any other pubhe utthty occupying the poles
(e) Provlder's d~stnbutlon feeder lines may be constructed as overhead lines, but such
lines shall be designed and constructed in an "armless" manner, to the extent such design and
construction is techmeally feasible, w~th no more than two (2) such lines per Right-of-Way
"Armless" type construction means cross-arms up to four (4) feet in length phase to phase, or
two (2) feet m length pole to phase
(0 Provider may be reqmred by the C~ty to share trench space w~th another public
utIhty for the placement of cables, w~res, or ducts tmderground Compensation to the Provider as
well as the terms of shanng trench space shall be resolved as provided for in subsection (a) of
th~s Section Also, Prowder may require ~nsttrance and Indemification, as provided in
subsection (a) of tbas Section Ducts, cables, or wires shall be placed in trenches in compliance
with applicable safety standards and m a manner that does not interfere with ProvIder's cables or
wires, as provided in subsection (b) oftlus Section
(e) Nothing herein shall mochfy or abrogate the power of the City to require any
holder of a franchise from the City to allow use of its faclhties by any other holder of a City
franchise under Article XIII of the City Charter
Page 15
Sectton 26-246 Conformance with pubhc ~mprovements
Whenever, by reason of any changes, without hmltatlon, of any street, sidewalk, curb,
alley, highway or pubhe way, or m the location or manner of eonstructmg any water or
wastewater pipe, gas pipe, storm sewer, or other underground or overhead structure for any
govemmental purpose whatsoever, other than S~tlng of competitive electric faclht~es owned by
the City, at shall be deemed necessary by the City to remove, alter, change, adapt, or conform the
underground or overhead faeillt~es of Provider located ~n the Pubhe Right-of-Way, such
alterations or changes shall be made as soon as practicable by Provider when ordered ~n wntmg
by the City, without claim for reimbursement or damages against the C~ty Prowded, however, if
sa~d reqmrements unpose a financial hardship upon the Provider, the Prowder shall have the
right to present alternative proposals for the City's conslderat~on The C~ty shall not reqmre
Prowder to remove its facilities entirely frnm a street, sidewalk, curb, alley, highway, or pubhc
way unless statable alternatives are available for relocation of ~ts facilities
Section 26-247 Prowder to rnamtam and file maps and assist m determining Provader's
use of Public Ra,,hts-of-Way
(a) The Provider shall cooperate w~th the C~ty at all times by prowdlng timely and
complete mformatmn regarding the location of its ¢ondu~ts, poles and facilities, along with such
maps, plats, construction documents and drawmgs as may ex~st or as may be created from t~me
to t~me Provider and City shall cooperate and coordinate their efforts to make the most efficient
and economical use of their respective facilities The Provider shall at all tames keep on file ~n
the office of the City's Director of Engmeenng and Transportation ("Director"), a current map,
~n a dlglta~ format compatible w~th the City's Geograplue Information System ("G ! S "), of the
Provider's Electric Utthty System within the City As extensions or modifications of facilities
are made from t~me to tame, the Prowder shall periodically file with the D~reetor updated digital
P~el6
maps showing those extensions or modfficat~ons so that the C~ty will have current and accurate
~nformat~on regarding the location and characteristics of the System The d~g~tal Information
shall ~nclude the location of the faclhtles comprising the Systems, and all other information
maintained by the Prowder pertmmng to the City's admunstrat~on of the franchise, including the
depth of any buried transmission or dastnbut~on lmes, to the extent such ~nformatlon exists If
such ~nformat~on ~s not avmlable m dlgxtal format, a hard copy shall be prowded A hard copy of
the digital maps may be requested by the C~ty and shall be prowded by the Provider if so
requested
(b) The C~ty will use the mformat~on provided by Prowders pursuant to this Section
only for the purposes of protection and management of the Pubhc R~ghts-of-Way The data base
prowded by Provider m ~ts entirety will be treated as competitive ~nformat~on and will not be
d~sclosed m whole or m part, except that portions of such data may be prowded to third parties as
necessary for effiment management of the Pubhc R~ghts-of-Way
Seetaon 26-248 Work by others
(a) The C~ty reserves the right to lay, and penmt 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 in, across, along, over, or under
the Pubhc RJghts-of-Way occupied by the Prowder The C~ty also reserves the right to change,
in any manner, any curb, s~dewalk, h~ghway, alley, pubhc way or street In permitting such work
to be done, the C~ty shall not be hable to the Provider for any damage so occasmned, but nothing
here~n shall relieve any other Person from respons~bthty for damages to the factht~es of Provider
(b) In the event that the govermng 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 hereto granted or heretofore obtatned by the Prowder In the event that the
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governing body of the C~ty shall close or abandon any Public Raght-of-Way that contmns
ex~mng faelhtles of the Prowder, any conveyance of land w~th~n such closed or abandoned
Pubhe R~ght-of-Way shall be subject to the rights hereto granted or heretofore obtained by
Prowder Prowded, however, that the Provider may be ordered to vacate any land so conveyed,
~f an alternate route ~s practmable, and ffthe Prowder ~s reimbursed by the Person to whom the
property ~s conveyed for the reasonable costs of removal and relocation of ~ts facflmes
(e) If the C~ty shall reqmre Provider to adapt or conform its Electric UUhty System,
or ~n any way or manner to alter, relocate, or change ~ts property to enable any other Person to
use, or use with greater eonvemenee, smd Pubhc R~ght-of-Way, Prowder shall not be bound to
make any such changes until such other Person (except the C~ty) shall have undertaken, w~th
good and sufficient bond, to reimburse the Prowder for any cost, loss, or expense which will be
caused by, or arise out of such change, alteration, or relocation of Prowder's property Prowded,
however, that the C~ty shall never be hable for such reimbursement due to Provider from such
Person
Section 26-249 Accountlnm audit, ~nspect~on
(a) The Provider shall mmntam, at ~ts local office or pnnmpal place of busmess
w~th~n the State, adequate books and records relating to the performance of ~ts obhgat~ons under
this Ordinance and ~ts franchise The Prowder shall mmntmn its books and records in a form and
w~th codmg sufficient to ~dentlfy ~ts Gross Revenues through December 31, 2001 and, beg~nmng
on January 1, 2002 and to the extent such ~nformat~on ~s avmlable to Prowder under apphcable
regulatory pmvls~ons, the number of kWh of electnmty dehvered by the Provider to each retail
customer whose consuming point of dehvery is located w~th~n the C~ty, ~ntendmg thereby to
separately ~dent~fy these relevant records of ~ts System m the City ~n order to faclhtate the C~ty's
rewew of the franchise fee payments The records of the Provider apphcable to ~ts performance
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under th~s Ordinance and its franchise shall be made avmlable upon not less than ten (10)
working days not,ce for inspection by the C~ty at any time dunng normal working hours, subject
to statutory and regulatory provisions regarding the confidentlahty of customer-specific
~nformat~on
(b) City may cause, upon reasonable written notme, 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 C~ty to exercise ~ts rights to any audit at any time shall not
constitute a wmver of such right City shall have the right to select auditors to make the audit
Provider shall make available to the andltor 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 dtmng any
audit conducted under th~s Orrhnance, including answenng questions and providing any
requested records or mfonnat~on Provider shall endeavor to provide requested records or
information within twenty-one (21) calendar days of having received a written request therefor
If the Prowder cannot so provide such records and reformation, then on or before such twenty-
first day after recelwng the request therefor, the Provider shall notify the C~ty or its
representative that the requested records and mformat~on will be made avmlable within an
additional fourteen (14) calendar days, and the mformatmn and records shall be so prowded
The cost of an audit pursuant to this provision shall be borne by the City, unless the audit reveals
an underpayment of fees ~n 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 or,ts estimate of Prowder's Gross Revenue and the number of kWh to be dehvered ~n
the City for the penod covered by the statement s~gned by an authorized representative of the
Provider, m such reasonable form and detml as City may from tame to t~me 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 pa~d ~s not the
amount due or from recovenng any defimt by any lawful proceeding, ~nclud~ng ~nterest
(d) In the event the Prowder shall be determined to have under-remitted the fee
required by this Ordinance, the Pmxader shall pay, ~n addition to the underpayments, ~nterest on
the underpayments at the rate of ten percent (10%) per annum from the t~me of the underpayment
until payment ~s made In the event of underpayment of fees, the Prowder 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 wmved as a de
mtntmus molat~on
Section 26-250 Penathes
(a) For the wolat~on of any of the following prowsmns of th~s Orthnance or of ~ts
franchise, penalties shall be prod by Prowder to the C~ty w~th~n fifteen (15) calendar days of
written notme of assessment by the Cay, ~n addmon to any other rights or remedies which the
C~ty may have at law or ~n eqarty
0) For failure to complete construction ~n accordance w~th agreed plans,
unless the C~ty speeffically approves the delay, Prowder 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 reqmred to
be furnished hereunder to the C~ty, or to reasonably cooperate w~th 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
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(III) For failure to comply with any financial obligation required herein,
Provider shall pay a penalty of One Hundred Fifty Dollars ($150 00) per
day for each day that such noncompliance continues, or
(~v) Commencing ten (10) calendar days following the adoption of a resolution
or an ordinance of the City that finds and determines a failure of Prowder
to comply with operational or maintenance standards as reqmred by this
Ordinance, Provider 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 0) through (m) above and/or
adopting a resolution under subparagraph (~v) above, the City shall give the Provider written
notice and a period to cure, not to exceed five (5) working days If the Prowder fmls 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 g~ven written notice of
the public meeting no later than five (5) calendar days prior to the posting date of the agenda for
the City Council meeting at which such resolution is scheduled to be considered by the Council
The notice to the Provider shall include a list of the failures complained of Prowder shall have
an opportumty to address the Council at such pubhc meeting
Section 26-251 Forfeiture and termination
(a) In addition to all other rights and powers retained by the City under th~s
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, m the
event of an uncorrected matenal breach of its terms and conditions A material breach by
Prowder for purposes of this Section, shall include, but shall not be hmIted to the following
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(1) Violation of any material provision of this Ordinance or a franchise
granted hereunder, or any rule, order, regulation or determination of the
City made pursuant to this Ordinance that as not cured or corrected in
accordance with the provisions of this Ordinance, or
(10 An attempt by Provider to evade any provision of this Ordinance or its
franchise, or to practice any fraud or deceit upon the City or its residents
(b) The foregoing matters descnbed m paragraph (a) above shall not constitute a
material breach of this Ordmance ~f the violation occurs w~thout fault of the Provider, or occurs
as a result of aireumstances beyond Provlder's control which could not have been avoided as a
result of the exercise of reasonable care Provider shall not be excused by mere economic
hardship, or by the misfeasance or malfeasance of its directors, officers, agents, or employees
(c) The City shall make a written demand that the Provider comply w~th any such
provision, rule, order, or determination under or pursuant to th~s 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 wntten proof and substantiation from Provider that
the required corrective action has been taken, or is being actively and expeditiously pursued, the
City may take under conaideration the issue of termination of the franchise of Provider The City
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 termination and the
time and place of the heanng Public notice shall be given of the heanng and the ~ssue or issues
which the City is to consider At smd heanng, the governing body of the City shall hear and
consider the issue or issues and shall hear any person interested therein At said heanng, the
governing body of the City shall determme, in its sole discretion, whether or not any uncorrected
violation by the Provider still exists
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(d) If the Clty shall determine that an uncorrected material wolatlon by the Provider
sift1 exists, and was the fault of the Provider, and within its control, and could have been avmded
with the exercise of reasonable care, the City may declare the franchise of the Provider forfeited
and terminated, or m the alternative, the Council may grant to Prowder a further period of time
to cure the violation
(e) The failure of the C~ty to ms, st ~n any one or more ~nstances upon the strict
performance of any one or more of the terms or provlmons of ttus Ordinance shall not be
construed as a waiver or relmqmshment for the future of any such term or provision, and the
same shall continue in full force and effect No waiver or rehnqmshment shall be deemed to
have been made by the City unless said waiver or relinquishment is m writing and s~gned by the
City
Section 26-252 Other legal remedies
(a) Notlnng here~n contained shall hmlt or restrict any legal nghts that the C~ty may
possess arising from any alleged violation of this Ordinance or ~ts franchise by Prowder The
C~ty retains all other rights, both legal and eqmtable, to wtuch it ~s entitled under the law
(b) Notl'nng herem contained shall hm~t the Provider's right to appeal a
determination, act, or order of the City as provided for by the ConsOtut~on and laws of the State
of Texas, including the Pubhc Utthty Regulatory Act of Texas, as amended, or ~ts successor
statute
S~ct~on 26-253 Legal canac~tv of~rovlder
The Provider shall be a legal entxty with legal capacity to operate, construct, reconstruct,
and maintain an electric transm~smon and d~stnbution system in the City in its properly
cemficated service area
P~e23
Section 26-254 Governmental lmmun~W
All of the prowslons contained ~n 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 govemmg body of the City, or C~ty official or employee charged w~th the
enforcement of this Ordmance, acting for or on behalf of the City ~n the discharge of hm or her
officml duties, shall not thereby render himself or herself personally hable, and he or she ~s
hereby reheved 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 ~n the d~scharge of his or her smd
duties
Section 26-255 Insurance
Promder will insure agmnst all the risks undertaken pursuant to ~ts franchise, including
the mdemmficat~on required in the franchise Such insurance may be ~n the form of self-
insurance to the extent permitted by applicable law, under a Prowder-approved formal plan of
self-insurance mmntmned in accordance w~th sound accounting and risk-management practices
Such insurance coverage or plan of self-insurance ~s subject to the approval of the R~sk Manager
of the City, whose approval shall not be unreasonably w~thheld or delayed A certificate of
~nsurance shall be provided to the City annually, no later than October 1 for each year dunng the
term of Provlder's franchise, evidencing such coverage, and additionally within thirty (30)
calendar days of any substantml change m the nature of ~ts coverage under this Section Should
Provider elect to self-msure, its annual notice to the C~ty shall contatn znformatlon clearly
~dentlfymg the process for filing a clmm agtunst such coverage
S~ctlon 26-256 Severabdltv
If any section, subsection, paragraph, sentence, clause, phrase or word in th~s Ordinance,
or the application thereof to any person or circumstances is held invalid by any court of
Page 24
competent jurisdiction, such holding shall not affect the vahd~ty of the remmmng portions of this
Ordinance, and the City Council of the City of Denton, Texas hereby declares it would have
enacted such remmmng portions ofth~s Ordinance despite any such lnvalldW
SECTION 3 It is hereby officially found and determined that the meeting at which th~s
Ordinance was passed was open to the pubhc as reqmred by law, and that pubhe notice of the
time, place and purpose of smd meeting was given as reqmred by law
SECTION 4 That this Ordinance shall become effective fourteen (14) days from the
date of its passage, and the City Secretary is hereby directed to cause the captmn of th~s
Ordinance to be published twice m the Denton Record-Chromcle, the official newspaper of the
City of Denton, Texas, w~ttun ten (10) days of the date of its passage, and ~t is aecor&ngly SO
ORDAINED
PASSED AND APPROVED thls the /~-~ dayof ~ ,2000
ATTEST,
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
By ~~ ~ ~,
S \Our Documents\Ordmances\00~Elecmc ROW and R~gulatory Ordinance 012600 doc
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ORDINANCE NO
AN ORDINANCE AMENDING THE CITY OF DENTON CODE OF ORDiNANCES,
CHAPTER 26, UTILITIES, AND AMENDING AND SUPERSEDING ORDINANCE NO
2000-041, BY ESTABLISHING UNIFORM REGULATIONS TO GOVERN THE USE AND
OCCUPANCY OF PUBLIC RIGHTS-OF-WAY BY PROVIDERS OF ELECTRIC UTILITY
SERVICE IN THE CITY OF DENTON, TEXAS, PROVIDING DEFINITIONS, REQUIRING
SUCH USERS TO OBTAIN A FRANCHISE FROM THE CITY PRIOR TO SUCH USE,
PRESCRIBING THE COMPENSATION TO BE PAID TO THE CITY BY PROVIDERS,
PRESCRIBING THE CONDITIONS UNDER WHICH SUCH USERS MAY USE AND
OCCUPY THE PUBLIC RIGHTS-OF-WAY, REQUIRiNG UNDERGROUNDING OF
CONDUITS, REQUIRING JOiNT USE OF POLES AND CONDUITS, REQUIRING THE
MAINTENANCE OF MAPS AND DATA REGARDING FACILITIES IN PUBLIC RIGHTS-
OF-WAY, PROVIDING FOR ENFORCEMENT OF THE REGULATIONS AND
FRANCHISES GRANTED THEREUNDER, PROVIDING FOR PENALTIES iN THE
AMOUNT OF $15000 TO $50000 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 C~ty of Denton finds ~t in the pubhc interest to provtde that every entity
using the Pubhc Rights-of-Way for the promsmn of Electric Utility Service shall, because of the
ovemding pubhc health, safety and welfare considerations associated with the promslon of this
service, comply with uniform regulations governing such use, and
WHEREAS, the City of Denton finds ~t ~n the pubhc interest to retmn control over the
use of Pubhc Rights-of-Way by prowders of Electric Utility Servmes to ensure agmnst
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Interference with the pubhc convenience, to promote aesthetic considerations, to promote
planned and effiment use of hm~ted R~ght-of-Way space and to protect the pubhc investment ~n
R~ght-of-Way, and
WHEREAS, Artmle XIII of the C~ty Charter of the C~ty of Denton authorizes the City to
prohibit the use of any street, alley, highway, 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 C~ty, and upon such terms and conditions as the C~ty shall
provide, and
WHEREAS, the C~ty of Denton finds that the granting of franchises for such use of the
Pubhc Rights-of-Way under the provisions of th~s Ordinance to prowders of Electric Utthty
Servme is the best means of assunng that the above-described interests of the C~ty 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
SECTION 1 That th~s Ordinance expressly amends and supersedes Ordinance No
2000-041, previously 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
Utilities, is hereby amended to add the following provisions, at Article VII thereof, entitled
"Uniform Regulations to Govem the Use and Occupancy of Pubhc R~ghts-of-Way by Providers
of Electric Service m the C~ty of Denton," by adding Sections 26-240, et seq thereto to read as
follows
Section 26-240 Definmons
For the purposes of th~s Ordinance and for franchises granted hereunder, the following
terms, phrases, words, abbrevmtlons and their derivations shall have the meaning g~ven herein
When not inconsistent w~th the context, words used in the present tense Include the future tense,
words ~n the plural number ~nclude the s~ngular number, and words in the singular number
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include the plural number The word "shall" is always mandatory and not merely directory
Words not defined shall be given their common and ordinary meaning These definitions shall
be subject to revision after review by the City to account for changes necessitated by retail
competition in the electric utility industry commencing January 1, 2002
(a) "City" shall mean the City of Denton, Texas, a home rule municipal corporation
(b) "Corporate limits" shall mean the corporate limits of the City as said limits are
now established or as such limits may hereafter be extended
(c) "Customer" shall mean any person, firm, partnership, association, corporation,
company or organization of any kind served by a Provider hereunder within the City
(d) "Electric Utility Service" shall include all sales of electricity, net of customer
credits, to all customers within the corporate limits of the City
(e) "Electric Utility System" or "System" shall mean an electric power system
~nstalled and operated in the City which shall include, but not be limited to, the generation,
transmission and distribution facilities, equipment and administrative services necessary to
provide electric service for any use to the City and such extensions, additions or reductions as
may hereafter be made
(f) "Gross Revenues" shall mean all revenues received by the Provider from the
provision of Electric Utility Service within the corporate limits of the City to all customers
within the City
(g) "Person" shall mean any person, firm, partnership, association, corporation,
municipal corporation, company or organization of any kind
(h) "Provider" shall mean any Person who owns, operates, or otherwise controls an
Electric Utility System for the provision of Electric Utility Service within the City
0) "Public Rights-of-Way" shall mean all of the public streets, alleys, highways, and
public thoroughfares of the City, as they now exist or may be hereafter constructed, opened, laid
out, or extended within the present limits of the City, or in such territory as may hereafter be
added to, consolidated, or annexed to the City
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Section 26-241 Franchise Required
(a) Any Person who desires to occupy Pubhc R~ghts-of-Way for the purpose of
prowdIng Electric Utihty Service to any Person or area of the C~ty must obtain a franchise from
the City hereunder and shall comply with all provisions of this Ordinance and the franchise
granted hereunder The franchise granted by the City shall be granted in accordance with Article
XIII of the C~ty Charter, and shall authorize the Provider to use and occupy the present and
future Public Rights-of-Way for the purpose of constructing, erecting, owmng, suspending,
mstalhng, extending, renewing, repamng, maintaining, operating and conducting within the city
hmlts of the City, a plant or plants and poles, wires, p~pellnes, cables, underground conduits,
manholes, fiber optic cable solely for the provm~on, support, or control of the Electric Utility
System, and all other facilities and equipment needed and necessary for the maintenance and
operation of an Electric Utility System
(b) A Provider seeking to obtmn a franchise shall make apphcatlon therefor with the
City Such apphcat~on shall consist of completing the Application Form provided by the City
and filing the completed form with the C~ty, along with the reqmred Application Fee of $500 for
all applicants for an inmal franchise The application fee shall not apply to the renewal or
extension of a franchise by a Provider Upon receipt of the completed Apphcation 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 herein
(c) A franchise granted hereunder shall be hmlted to the provlsmn by Provider of
Electric Utility Servmes unless the franchise exphcltly provides Provider the right to engage in
related electric businesses or services All revenues from such related electric businesses and
services shall be included in the definition of "Gross Revenues" set forth In Section 26-240(0
In the event Provider desires to use its existing faclhtles, or construct new faclhtles, in order to
provide telecommunications service, local lntemormectlon, network access service, leased fiber
optic capacity, v~deo programming service or any other telecommunications or telephony service
to existing or potential customers, Provider must obtain additional and separate authorization
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from the C~ty ~n a separate franchise or agreement for such act~wtms to be conducted ~n the
Pubhc R~ghts-of-Way prior to their commencement, as prowded by state law, ~nclud~ng 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 hm~t a Promder's service
area granted by the Pubhc Utd~ty Comm~ssion of Texas The C~ty hrmts are subject to
expansion or reduction by annexation and contraction of mumc~pal boundaries In accordance
w~th state law and regulations of the Pubhc Ut~hty Commission of Texas, a franchised Prowder
may promde servme to any and all areas that may be annexed to the C~ty under the same terms
and cond~tions of this Ordinance as the current areas now included w~th~n the C~ty If the City
approves any expansion or reduction of~ts corporate hm~ts by annexatton or contraction, the City
w~ll provide written notice to the Provider The Prowder must revise ~ts payments due to any
expansion or reduction by annexation or contraction within a reasonable t~me after notme by the
C~ty, but no later than sixty (60) calendar days after recetpt ofnot~ce
(e) Franchises may be granted for a fixed term, not to exceed twenty (20) years
(f) A franchise shall not be assignable, ~n whole or m part, except to an affihate of a
Prowder whose rates and services are regulated by the Pubhc Utthty Commission of Texas and
by the C~ty, without the express, advance, written consent of the governing body of the C~ty,
which consent shall not be unreasonably withheld, such consent to be ewdenced by an ordinance
that fully recites the terms and conditions, if any, upon which such consent to assign is g~ven
Sectmn 26-242 Compensation to be paid to the Ctt¥
(a) As compensation for the rights and pnwleges conferred by a franchise granted
pursuant to thru Ordinance, Provider shall be required to pay to the C~ty, each quarter, a sum of
money equal to four percent (4%) of the Promder's Gross Revenues as defined here~n This
obhgat~on to pay compensation along w~th all the other obhgat~ons ~n th~s ordinance shall be
contractual obhgatmns whmh shall not be changed, abridged, or extlngmshed by any act of the
Legislature subsequent to the issuance of a franchise granted hereunder
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(b) Each quarterly payment required by this Ordinance and the franchise shall be
equal to four percent (4%) of the preceding quarter's actual said Gross Revenues Each payment
shall be due and payable on or before the last business day of the first month following the end
of the preceding quarter by electronic funds transfer or by other means that provide immediately
avmlable funds to the C~ty on the day the payment ~s due These payments (insofar as the City
has legal power so to provide and agree) shall be in heu of, and shall be accepted as payment for
all of Prov~der's obhgat~ons to pay other charges for the rental of the Public Rights-of-Way,
franchise taxes, or other taxes of every kind, save and except regulatory expenses ~n excess of
$25,000 under Section 33 023, Pubhc Ut~hty Regulatory Act of Texas ("PURA")(Tex Utd
Code §33 023) or any similar or successor law, ad valorem taxes, sales and use taxes, special
taxes and assessments for pubhc Improvements, and any fees associated with the use of City-
owned poles
(c) A franchise granted hereunder may provide for a payment period and schedule
other than that specffied in subsections (a) and (b) of this section
(d) The compensation payable by Providers to the C~ty as cons~deration for use and
occupancy of the Pubhc R~ghts-of-Way may change for prowders with franchises extending
beyond January 1, 2002 in accordance w~th Section 33 008, PURA (Tex Utll Code §33 008) or
any successor law For Providers that are "electric utllmes," as defined ~n PURA, the franchise
fee to be prod by Prowders shall be determined by the City using the criteria set forth in §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 calculatmn of the franchise and right of way fee described ~n subsections
(a) and (b) of this sectmn For electrtc cooperatives, the franchise fee to be prod by such
Providers shall also be determined by the City in accordance with the criteria set forth in §
33 008, PURA or any similar or successor law, 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 C~t¥ of condmts and poles
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(a) Provider shall install underground at no expense to the City all electric power
distribution faclhtles within new residential subdivisions or commercial developments
Prowded, however, Prowder will be considered to have satisfied th~s obhgatlon to the extent that
owners and developers of new resldentml subdlwslons and commercial developments actually
~nstall underground all electric power d~stnbut~on facilities at their expense in compliance with
the City's development regulatmns, including, w~thout hm~tatlon, Section 3(b)(l)(b) of the C~ty's
interim resldentml development regulations and any s~mllar or successor laws The C~ty may
require existing facilities to be moved underground at the C~ty's expense
(b) Representatives of both the City and the Prowder shall meet periodically to
(1) Consult and plan together regarding projects to be undertaken pursuant to
this section The Provider shall provide non-b~ndlng "ballpark" cost
estimates for planning purposes at no cost to the City The final decision
as to which projects are selected rests with the C~ty, subject to the
provisions of th~s section The specffic scheduling of projects rests with
the Provider, which shall make every reasonable effort to complete such
projects within the time requested by the C~ty,
(n) Review the City's undergroundlng program, including conversions, pubhc
projects and replacements, which have been accomphshed or are
underway by the Provider at the C~ty's expense and request, together w~th
the City's plans for additional undergroundlng,
(Ul) Review the status of technology in the field of electric undergroundlng,
0v) Review the construction and operation and mmntenance costs of
underground hnes versus overhead lines, and
(v) Review public projects anticipated by the C~ty
Such meetings shall be held to achieve a continuing program for the orderly
underground~ng of electric hnes in the City
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(c) When undertaking a project of underground~ng pursuant to subsection (b) of th~s
section, the C~ty and the Prowder shall work w~th other utthties or companies that have their
hnes overhead to have all lines undergrounded as part of the same project When other utilities
or companies are plamng their hnes underground, the Prowder shall cooperate w~th these utlhtles
and companies and undertake to underground Prowder's faclhtles are part of the same project
where feasible, provided, however, the Provider shall have no such obhgatlon absent
reimbursement of the Prowder's cost by the C~ty
(d) The Provider shall use ~ts best efforts to coordinate its installation of new
underground facditles with preexisting underground factllt~es of other compames
(e) If Prowder, ~n its sole discretion, determines that ~t has spare ducts ~n ~ts
underground conduits, or spare pins, crossarms, or space on any of ~ts poles not then necessary
for the provision of Electric Utility Service, and not needed for future ant~mpated load growth or
emergencies, Provider shall permit the C~ty to use one such duct in each condmt, or reasonable
spaces on poles, or both, for the City's police and fire alarm wires, traffic control w~res or cable,
fiber-optic hnes connecting C~ty factht~es, or other s~mflar, appropriate non-commercial,
governmental uses, prowded that such use by the C~ty ~s in comphance w~th the National Electric
Safety Code and at the expense of the City IfProwder constructs or extends add~tmnal condmts
or erects additional poles, the C~ty may require the Prowder to promde one such duct ~n each
condmt, or reasonable space on poles, or both, for the City's own use as aforesmd In rather
event, the City shall pay Provider a fair rental therefor
(0 City shall not sell, lease or otherwise make available its rights to use Provlder's
facflttles as set forth herein to any third party for commermal purposes Such rights are provided
solely for the non~commercial use of the C~ty for governmental purposes However, this
restnctmn shall not prevent the C~ty from using the sermces of a third party commercial entxty to
manage or operate the C~ty's faclht~es on behalf of the City, so long as no resale or other
commercial use of such famht~es shall occur
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(g) Except as may be expressly authorized by ~ts franchise, Prowder ~s not authorized
to hcense or lease to any person or entity or any other pubhc utility, any right to occupy or use
the C~ty's Pubhc Pdghts-of-Way for the conduct of any related electric bus~ness or pursmt All
revenues from such related electric businesses or pursmts shall be ~ncluded ~n the definition of
"Gross Revenues" set forth ~n Sectmn 26-240(f)
Section 26-244 Construction and mmntenance, excavation
(a) The construction, mmntenance, and operation of Provlder's Electric Utility
System shall be subject to lawful police regulations and ordinances of the City, ~nclud~ng, but not
limited to, Sections 25-71, et seq, Denton Code of Ordinances The placement of poles,
excavations, and other construction in the streets, alleys, and other Pubhc Rights-of-Way, shall
interfere as httle as practicable w~th 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 t~me to order and reqmre
Provtder to remove and abate any pole, wire, 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 t~me, the C~ty shall have the power to remove or abate the same at the expense of
the Prowder, all w~thout compensation or habfl~ty for damages to Provider
(b) Whenever the Prowder shall cause any opening or alteration to be made ~n any of
the Pubhc R~ghts-of-Way for the purpose of ~nstalhng, malntalmng, operating or repmnng ~ts
Electric Utility System, the Provider must obtmn a permit as required in Sections 25-71, et seq,
Denton Code of Ordinances Prowded, however, a permit shall not be reqmred for routine
mmntenance ~tems, mclud~ng hanging a transformer, replacing poles or work performed to
~mtlate servme to an md~wdual customer's property, that can be accomphshed w~th~n 48 hours
A permit will also not be required for work that is incidental in nature, wtth the types of work
that fall w~thm th~s exception being those that may be agreed upon by Engineering
representatives from both Prowder and City Prowder will notify the C~ty through ~ts
Engineering Department at least 48 hours ~n advance of any routine mmntenance that disrupts
traffic fl0w, ~nterferes w~th or conflicts w~th any existing or proposed street or thoroughfare
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expansion or that conflicts/interferes with or 1s in close proximity to existing City faclhtaes The
work shall be completed at no expense to the Caty wlthan a reasonable time The Provider shall,
upon the completion of such work, restore such portion of the Pubhc Rights-of-Way to as good
or better condmon as at was before the opening or alterataon was so made and will promptly
remove any debris Should the Provader fail to complete restoration after ten (10) calendar days'
notice provided in writing by the City to Provider, the City may repair such portion of the Pubhc
Rights-of-Way that may have been thsturbed by the Provider, and the cost shall be charged to the
Provider
(c) The Prowder shall be responsible for the payment of all repair or maintenance
costs ~ncurred as a result of any defects, lmpmrments, or substandard condmon ~n the Public
Rights-of-Way caused by the work of the Provider for two years after the Caty's acceptance of
the completed work, promded 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, ampmrment, or substandard condition w~thln the two year penod
(d) On or before the effectave date of a franchise granted hereunder, and as a
condation precedent to the effectaveness of the franchise, a Provider shall deposit with the City
Fanance Darector a surety bond an the amount of $50,000, payable to the City and secunng the
payment of repair or maintenance costs ancurred as a result of any defects, ampmrments, or
substandard condition an the Pubhc Raghts-of-Way caused by the work of the Promder or
resulting from Prowder's act~vataes ~n the Pubhc Rights-of-Way The reqmred surety bond must
be wath good and sufficient sureties, ~ssued by a surety company authorized to transact busaness
in the state lasted on the Department of Treasury's last of approved sureties, and satasfactory to
the City Attorney ~n form and substance The bond and surety requirements under thas
subsectaon may be wmved at the sole d~scretion of the City if the Provider provades acceptable
evidence of self-insurance with the level, form, and proof of insurance sufficient to substatute for
the surety reqmrements Such ansurance shall be the same as the form of self ansurance andicated
in Section 26-255 of this ordanance
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(e) No provisions ofth~s Ordinance shall be construed to prohibit City from ~mpos~ng
inspection or permitting charges and fees for excavation, maintenance and restoration projects by
Provider, and requinng adequate security therefor, to assure appropriate planning, construction,
inspection, eompletmn and restoration of such projects
(f) Eng~neenng plans for those projects revolving significant construction In Public
Rights-of-Way shall be submitted to the City for approval no later than thirty (30) calendar days
prior to the commencement of construction, whmh approval shall not be unreasonably w~thheld
or delayed by the C~ty
(g) Except for emergency repmrs or emergency paving cuts, a permit shall be
obtained from the City prior to the ~mtiation of any construction, repair, replacement, paving
cuts, or other excavation w~thm Public Rights-of-Way All reasonably practical alternatives to
making paving cuts will be reqmred before paving cuts wall be permitted In addition to any
other permit reqmremant, the Prowder shall submit a plan that provides for compliance w~th all
federal, state, and City reqmrements, including, but not limited to, construction and restoration
standards, stormwater quality regulations, traffic control regulations, and the Texas Professional
Engineering Practmes Act Any plans submitted shall be detailed to the satisfaction of the City's
Director of Englneenng and Transportation If any work is to be done by an independent
contractor or subcontractor, the Prowder must identify, in writing, that contractor and any
subcontractors to the City before a penmt ~s issued For the permit, the City may require
information as necessary so that adequate notification, commumcation, and points of contact for
the Prowder or ~ts contractor may be estabhshed
(h) In the event Provider undertakes emergency repairs, excavations, or paving cuts
for which a permit has not been obtained that result an any disruptions to the public's or the
City's use of Public R~ghts-of-Way, the Provider shall deliver notme to the City of such repmrs,
excavations, or pav~ng cuts no later than the end of the next working day following initiation of
the work In the event such emergency repairs, excavations, or paving cuts are required on an
arterial street dunng peak traffic periods, z e, 7~9 a m or 4-6 p m Monday through Friday, the
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Prowder shall verbally notify the Denton Police Department at the time of commencement of
such work
0) Erosion and sedimentation dunng construction or repmr work shall be controlled
~n accordance w~th the ordinances and regulations of the C~ty generally apphcable to excavations
w~thln the City, as amended or rewsed from t~me to t~me Permanent erosion control shall be
reqmred upon completion of all work Effective enwronmental and pollution control measures
shall be mmntmned ~n accordance w~th C~ty, State, and Federal requirements
(1) When Provtder shall make or cause to be made excavations or shall place
obstructions ~n any Pubhc R~ghts-of-Way, the Pmwder shall place, erect, and mmntmn bamers
and hghts to ~dentlfy the location of such excavations or obstructions, consistent w~th the Manual
of Uniform Traffic Control Devices, and as further d~rected by the Ctty and the Texas
Department of Transportatton
(k) Work done in the Public Rtghts-of-Way shall be planned and executed to
m~mm~ze time of construction and d~smpt~on to traffic and the general pubhc The work s~te
must be rendered safe to traffic and the general pubhc ~n accordance w~th normal utthty practice
prior to workers leawng the s~te each day Once started, work must proceed without ~nterruptlon
to completion, ~nclud~ng restoration and clean-up
(1) Except for emergenmes as determined by the Provider or under specml
c~rcumstances as determined by the City's D~rector of Eng~neenng and Transportation, work
hours for work in the Public 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 wall be hm~ted to the hours of 9 a m to 4 p m unless otherwise specffically
permitted by the C~ty
(m) Prowder shall have the authority to trim trees upon and overhanging Pubhc
Rights-of-Way 0ncludlng s~dewalks and driveways), after prowd~ng written not~ce to affected
customers, so as to prevent the branches of the trees from cormng ~nto contact wtth the w~res and
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cables of the Prowder, prowded that all trimming ~s done in comphance w~th the Nahonal
Electric Safety Code and C~ty Code provisions, and at no expense to the City
(n) The C~ty shall have the right to deny a permit for any proposed new or add~honal
facd~hes w~th~n the Pubhc Pughts-of-Way ~f it determines there is insufficient space to
accommodate the fac~ht~es, or if the Provider, or its subcontractors, are not m comphance w~th
emst~ng C~ty ordinances and standards or previously issued permits
(o) Provider and C~ty may agree that C~ty shall perform paving cuts, excavation, or
other constmctmn or repmrs ~n the Pubhc R~ghts-of-Way on behalf of Provider, at such
reasonable price and upon such reasonable terms as Prowder and C~ty 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
provts~ons of th~s Sechon shall not apply to Provider
Sectmn 26-245 Joint use of poles, trenches, and condmts
(a) In order to reduce the number of poles and to avoid pubhc safety concerns and
msual clutter, the Promder may be required to attach its wires to poles owned and mmntmned by
another Person, or to permit the wires of another pubhc utd~ty to be attached to the poles owned
and mmntmned by the Prowder, upon reasonable terms and for just compensation for any
add~honal fac~ht~es of Provider that may be required
(b) In the event that Prowder and such other pubhc uhhty are unable to agree on
terms and compensatmn, or if same are not otherwise resolved or determined within a reasonable
t~me, then d~sputes arising under th~s Section shall be resolved by arb~traUon ~n accordance w~th
the Commermal Arb~trahon Rules of the American Arbitration Assoc~ahon Arbitration shall be
by a panel of three arbitrators one selected by the Prowder, one selected by the other public
utility, and one experienced ~n the matters at ~ssue and selected by the Prowder and the other
pubhc utlhty ~n accordance w~th the Commercial Arbitration Rules of the American Arb~trahon
Assocmhon The decision of the arbitrator shall be final and b~nd~ng as to any matters submitted
under th~s Section All costs and expenses ~ncurred ~n connection w~th any such arb~tratmn
proceeding 0nclud~ng reasonable attorneys' fees) shall be borne by the party agmnst which the
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decision is rendered, or, if no decision ~s rendered, such costs and expenses shall be borne
equally by the Provider and the other pubhc utility If the arbitrator's decision is a compromise,
the determination of which party or parties bears the costs and expenses incurred In connection
with any such arbitration proceeding shall be made by the arbitrator on the basis of the
arbitrator's assessment of the relative merits of each party's position The parties shall instruct
the arbitrator to render ars decision no later than ninety (90) calendar days after submission of the
dispute
(c) The Provider may require such other public utility to furnish evidence of adequate
insurance and provide indemmfication covering the Provider, and adequate bonds covering the
performance of such other public utility attaching to the Provlder's poles, as a condition
precedent to giving permission to such other public utility to attach wires to ProvIder's poles
Provlder's requirements for such insurance and indemnity must be reasonable
(d) Provider shall not be required to attach its wires to the poles of another public
utlhty or to permit the wires of another public utility to be attached to Provlder's poles if it can
be satisfactorily shown
(i) that Provider will be subjected to increased risks of interruption of service
or liability for accidents,
(n) the poles, wires, and appurtenances of such other public utility are not of
the character, design, or construction required by, or are not being
maintained m accordance w~th modem electric utility practice, or
(m) sufficient clearance or space is not available on the pole
Wires shall be located on poles in compliance with applicable safety standards and shall not
interfere with the erection, replacement, operation, repair, or maintenance of the wires and
appurtenances of any other public utility occupying the poles
(e) Provider's distribution feeder lines may be constructed as overhead lines, but such
lines shall be designed and constructed in an "armless" manner, to the extent such design and
construction is technically feasible and in compliance with the National Electric Safety Code
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"Armless" type construction means cross-arms up to four (4) feet in length phase to phase, or
two (2) feet ~n length pole to phase
(f) Prowder may be required by the City to share trench space with another public
utility for the placement of cables, wires, or ducts underground Compensation to the Provider as
well as the terms of shanng trench space shall be resolved as provided for in subsection (a) of
this Section Also, Provider may require insurance and indemnification, as provided in
subsection (a) of this Section Ducts, cables, or wires shall be placed in trenches in compliance
with apphcable safety standards and in a manner that does not ~nterfere with Provlder's cables or
wires, as prowded ~n subsection (b) of this Section
(g) Nothing herein shall modify or abrogate the power of the City to require may
holder of a franchise from the City to allow use of its facflltles by any other holder of a City
franchise under Article XIII of the City Charter
S~ction 26-246 Conformance with public improvements
Whenever, by reason of any changes, without limitation, of any street, sidewalk, curb,
alley, highway or public way, or in the location or manner of constructing any water or
wastewater pipe, gas pipe, storm sewer, or other underground or overhead structure for any
governmental purpose whatsoever, other than siting of competitive electric facilities owned by
the City, It shall be deemed necessary by the City to remove, alter, change, adapt, or conform the
underground or overhead famhtles 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 C~ty, without claim for reimbursement or damages agmnst the City Prowded, however, if
smd reqmrements impose a financial hardship upon the Prowder, the Provider shall have the
right to present alternative proposals for the City's conslderatmn The City shall not require
Provider to remove its facilities entirely from a street, s~dewalk, curb, alley, highway, or public
way unless suitable alternatives are available for relocation of its facilities
Section 26-247 Provider to mmntaln and file maps and assmt in determ~mng Promder's
use of Public Rights-of-Way
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(a) The Provtder shall cooperate wtth the C~ty at all ttmes by promdlng timely and
complete reformation regardtng the locatton of its condmts, poles and facthtles, along w~th such
maps, plats, construction documents and drawtngs as may exist or as may be created from time
to ttme Provider and Ctty shall cooperate and coordinate their efforts to make the most effictent
and economical use of thetr respecttve facthtles The Provider shall at all t~mes keep on file in
the office of the Ctty's Dtrector of Engtneenng and Transportation ("Dtrector"), a current map,
tn a dtgttal format compatible w~th the Ctty's Geographic Information System ("G I S "), of the
Provlder's Electric Utthty System within the City As extensions or modifications of famhtles
are made from time to trine, the Prowder shall periodically file with the Director updated dlgttal
maps showing those extenstons or modfficat~ons so that the Ctty will have current and accurate
information regarding the location and characteristics of the System The thgttal tnformat~on
shall include the locatton of facthttes compnstng the Systems, and all other lnformatton
mmntmned by the Provtder pertmmng to the C~ty's admtmstratlon of the franchise, including the
depth of any buried transmtsston or distribution hnes, to the extent such lnformatton extsts If
such tnformatlon ts not available tn dtgttal format, a hard copy shall be provided A hard copy of
the d~g~tal maps may be required by the City and shall be provided by the Promder tf so
requested
(b) The City will use the tnformatmn provided by Providers pursuant to th~s Section
only for the purposes ofprotectton and management of the Pubhc R~ghts-of~Way The data base
provtded by Promder tn 1ts enttrety will be treated as competitive lnformat~on and wtll not be
dtsclosed in whole or in part, except that portions of such data may be provtded to thtrd parties as
necessary for effictent management of the Public R~ghts-of-Way
Sectton 26-248 Work by others
(a) The City reserves the right to lay, and permit to be laid, storm sewer, gas, water,
wastewater and other ptpehnes, 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
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the Pubhc Pdghts-of~Way occupied by the Provider The City also reserves the right to change,
in any manner, any curb, s~dewalk, highway, alley, public way or street In permitting such work
to be done, the C~ty shall not be hable to the Prowder for any damage so occasioned, but nothing
here~n shall reheve any other Person from responsibility for damages to the famht~es of Prowder
(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 Raghts-of-Way, such grant shall be
subject to the rights herem granted or heretofore obtmned by the Provider In the event that the
govemxng body of the C~ty shall close or abandon any Public R~ght-of-Way that contmns
existing facthtms 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 Prowder may be ordered to vacate any land so conveyed,
if an alternate route ~s practmable, and ~f the Provider is reimbursed by the Person to whom the
property ~s conveyed for the reasonable costs of removal and relocatmn of xts facthties
(c) If the Cxty shall require Prowder to adapt or conform its Electric Utdity System,
or ~n any way or manner to alter, relocate, or change ~ts 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 whmh wall be
caused by, or arise out of such change, alteration, or relocation of Provlder's property Provided,
however, that the C~ty shall never be hable for such rmmbursement due to Provider from such
Person
(d) In determining the location of Prowder's hnes and other fac~htles within the C~ty,
Promder shall mxmmlze interference with then-ex~st~ng underground structures of C~ty or other
ut~hty franchises L~kew~se, in determ~mng the location of the hnes and other factht~es of the
City, C~ty shall m~mmlze ~nterference wxth the ex~st~ng facihties of Promder
Section 26-249 Accounting, andxt, ~nspection
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(a) The Prowder shall mmntmn, at ~ts local office or pnnc~pal place of bus~ness
within the State, adequate books and records relating to the performance of ~ts obligations under
th~s Ordinance and ~ts franchise The Prowder shall mamtmn ~ts books and records in a form and
w~th coding suffiment to ~dent~fy ~ts Gross Revenues through December 31, 2001 and, beglnmng
on January 1, 2002 and to the extent such ~nformat~on IS avmlable to Prowder under apphcable
regulatory prows~ons, the number of kWh of electnmty dehvered by the Provider to each retail
customer whose consuming point of dehvery ~s located w~thln the C~ty, lntend~ng thereby to
separately ~dent~fy these relevant records of ~ts System ~n the City in order to facilitate the City's
remew of the franchise fee payments The records of the Provider apphcable to ~ts performance
under thru Ordinance and its franchise shall be made available upon not less than ten (10)
working days not,ce for ~nspectlon by the C~ty at any time during normal working hours, subject
to statutory and regulatory prows~ons regarding the confident~ahty of customer-specffic
~nformataon
(b) C~ty may cause, upon reasonable written notice, an audit to be made of the books
and records of Prowder relating to Prowder's performance under th~s Ordinance and 1ts
franchise The omission by the C~ty to exercise its rights to any audit at any time shall not
constitute a wmver of such right C~ty shall have the rtght to select auditors to make the andlt
Prowder shall make available to the auditor personnel and such records as are relevant to such
audit, and shall make no charge to the C~ty therefor Provider shall assist the C~ty dunng any
audit conducted under th~s Ordinance, including answering questmns and prowd~ng any
requested records or information Prowder shall endeavor to prowde requested records or
~nformat~on w~th~n twenty-one (21) calendar days of having 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 Provider shall notify the Ctty or ~ts
representative that the requested records and ~nformat~on wall be made avmlable w~th~n an
addltmnal fourteen (14) calendar days, and the ~nformatmn and records shall be so provided
The cost of an audit pursuant to th~s prowsmn shall be borne by the City
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(c) Upon request by the C~ty, but no less than annually, the Prowder wall prepare a
statement of ~ts estimate of Prowder's Gross Revenue and the number of kWh to be dehvered ~n
the C~ty for the period covered by the statement s~gned by an authorized representative of the
Provider, ~n such reasonable form and detad sufficient 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 pa~d ~s not the amount due or from recovenng any
deficit by any lawful proceeding, ~nclud~ng ~nterest
(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 t~me of the underpayment until payment is
made
(n) In a third ~nstance of underpayment within any g~ven 5-year period, the
Provider shall also pay to the C~ty ten pement (10%) of the total
underpayment as a penalty for noncomphance wtth th~s Ordinance An
"instance of underpayment" as used here~n pertains to any separate
~nmdent of underpayment Pmmded, however, any underpayments of
franchise fees for a s~ngle cause - such as fmlure to ~nclude m~scellaneous
revenues in gross revenue- shall constitute one instance of underpayment
Any penalty of less than One Hundred Dollars ($100 00) shall be wmved
as a de rnznlrnus violation
Section 26-250 Penalties
(a) For the vmlatlon of any of the follow~ng prowsions of th~s Ordinance or of tts
franchise, penalties shall be prod by Prowder to the City w~th~n fifteen (15) calendar days of
written notice of assessment by the C~ty, ~n addition to any other rights or remedies which the
C~ty may have at law or ~n equity
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(l) For failure to complete construction in accordance with agreed plans,
unless the City specifically approves the delay, the C~ty shall provide
Provider notice of the failure as ~nd~cated ~n subsection (b) of this section
Then for the second fmlure in any given 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 failure in any given calendar year, Provider
shall pay a penalty of Two Hundred Dollars ($200 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 matenat breach at the option of City
under Section 26-251, or
(ii) For failure to prowde data, documents, reports, or information required to
be furnished h~reunder to the City, or to reasonably cooperate with the
C~ty during an audit required under the terms hereunder, the City shall
provide Prowder not~ce of the failure as indicated in subsection (b) of this
section Then for the second failure m any g~ven calendar year, Provider
shall pay a penalty of One Hundred Dollars ($100 00) per day for each day
the violation occurs or continues, for the third failure m any g~ven
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 failure in any given calendar year, Provider shall pay a penalty
of F~ve 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, or
(m) For failure to comply with any financial obhgat~on required herein, the
C~ty shall provide Prowder not,ce of the failure as ~ndlcated in subsection
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(b) of this section Then for the second failure in any given calendar year,
Provider shall pay a penalty of One Hundred Filly Dollars ($150 00) per
day for each day that such noncomphance continues, for the third failure
in 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 m 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) Prior 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 Provider's alleged failure to comply shall
be heard at a public meeting of the City Cotmcfl The Prowder shall be given written notice of
the public meeting no later than five (5) calendar days prior to the posting date of the agenda for
the City Council meeting at which such resolution is scheduled to be considered by the Council
The notice to the Provider shall include a list of the failures complained of Provider shall have
an opportunity to address the Council at such public meeting
Section 26-251 Forfeiture and termination
(a) In addition to all other rights and powers retained by the City under this
Ordinance or otherwise, the City reserves the right to forfeit and terminate a franchise granted
pursuant to the provmlons 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
0) Violation of any material provision of this Ordinance or a franchise
granted hereunder, or any role, order, regulation or determination of the
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City made pursuant to this Ordinance that is not cured or corrected in
accordance with the provisions of this Ordinance, or
(n) An attempt by Provider to evade any prowslon of th~s Ordinance or ~ts
franchise, or to practme any fraud or dece~t upon the C~ty or its residents
(b) The foregoing matters described ~n paragraph (a) above shall not constitute a
material breach of this Ordinance if the violation occurs without fault of the Prowder, or occurs
as a result of circumstances beyond Provlder's control which could not have been avmded as a
result of the exercise of reasonable care Provider shall not be excused by mere economm
hardship, or by the misfeasance or malfeasance of its directors, officers, agents, or employees
(c) The City shall make a written demand that the Provider comply with any such
provision, rule, order, or determination under or pursuant to this Ordinance or its franchise If
the violation by the Provider continues for a period of thirty (30) calendar days following such
written demand, without the City receiving written proof and substantiation from Provider that
the reqmred corrective action has been taken, or ~s betng actively and expeditiously pursued, the
C~ty may take under consideration the msue of termination of the franchise of Provider The Ctty
shall set a hearing, and shall cause to be served upon Prowder, at least fifteen (15) calendar days
prior to the date of such hearing, a written notice of ~ntent to request such termination and the
time and place of the hearing Public notme shall be given of the hearing and the ~ssue or ~ssues
which the City ~s to consider At smd heanng, the governing body of the City shall hear and
consider the msue or ~ssues and shall hear any person interested therein At said heanng, the
governing body of the C~ty shall detenmne, ~n its sole discretion, whether or not any uncorrected
violation by the Prowder still exists
(d) If the City shall determine that an uncorrected mater~al violation by the Provider
still exists, and was the fault of the Promder, and w~thln Its control, and could have been avoided
with the exercise 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 wolatlon
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(e) The failure of the C~ty to insist ~n any one or more ~nstances upon the strict
performance of any one or more of the terms or prowslons of this Ordinance shall not be
construed as a waiver or rehnqmshment for the future of any such term or provision, and the
same shall continue ~n full fome and effect No waiver or rehnqulshment shall be deemed to
have been made by the C~ty unless sand waiver or rehnqmshment is ~n writing and s~gned by the
City
Section 26-252 Other legal remedms
(a) Nothing herein contanned shall limit or restrict any legal rights that the City may
possess arising from any alleged wolatlon of this Ordinance or a franchtse by a Provider The
City retanns all other rights, both legal and equitable, to which ~t is entitled under the law
(b) Nothing herein contmned shall limit a Provlder's right to appeal a determination,
act, or order of the C~ty as prowded for by the Const~tution and laws of the State of Texas,
~nclud~ng the Public Utility Regulatory Act of Texas, as amended, or its successor statute
S~ctlon 26-253 Legal capacity of provider
The Prowder shall be a legal entity with legal capacity to operate, construct, reconstruct,
and mmntann an electric transmission and distribution system in the City ~n its properly
certfficated service area
Section 26-254 Governmental immunity
All of the prows~ons contanned ~n this Ordinance are hereby declared to be for a pubhc
purpose, and are m the ~nterests of the health, safety, and welfare of the general public Any
member of the governing body of the C~ty, or City official or employee charged with the
enforcement of this Ordinance, acting for or on behalf of the City in the d~scharge of h~s or her
official duties, shall not thereby render himself or herself personally hable, and he or she is
hereby reheved from any and all personal habfllty for any damage that might accrue to any
person or property as a result of any act required or permitted in the d~scharge ofh~s or her sand
duties
Section 26-255 Insurance
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Provider will insure agmnst all the risks undertaken pursuant to its franchise, including
the indemnification required in the franchise Such insurance may be in the form of self-
insurance to the extent permitted by applicable law, under a Provider-approved formal plan of
self-insurance mamtatned in accordance with sound accounting and risk-management practices
Such insurance coverage or plan of self-insurance is subject to the approval of the Risk Manager
of the City, whose approval shall not be unreasonably withheld or delayed A certificate of
insurance shall be provided to the City annually, no later than October 1 for each year during the
term of Provlder's franchise, emdenmng such coverage, and additionally within thirty (30)
calendar days of any substantial change in the nature of 1ts 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 clmm against such coverage
Section 26-256 Severabdlt¥
If any section, subsection, paragraph, sentence, clause, phrase or word in this Ordinance,
or the application thereof to any person or circumstances is held invalid by any court of
competent jurisdiction, such holding shall not affect the vahdlty of the remmmng portions of this
Ordinance, and the City Council of the City of Denton, Texas hereby declares it would have
enacted such remmnlng portions of this Ordinance despite any such invalidity
SECTION 3 It is hereby officially found and determined that the meeting at which this
Ordinance was passed was open to the public as required by law, and that public notice of the
time, place and purpose of smd meeting was given as required by law
SECTION 4 That this Ordinance shall become effective fourteen (14) days from the
date of its passage, and the City Secretary is hereby directed to cause the caption of this
Or&nance to be pubhshed twice in the Denton Record-Chromcle, the official newspaper of the
City of Denton, Texas, within ten (10) days of the date of its passage, and it is accordingly SO
ORDAINED
PASSED AND APPROVED thls the /~0¢ dayof ~(~ ,2001
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EULINE BROCK, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FO~
HE~ERT L PROUTY, CITY ATTO~Y
By ~~
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