Ordinance 1999-11
CITY OF WYLIE
ORDINANCE NO.~
AN ORDINANCE OF THE CITY OF WYLIE, TEXAS, GRANTING TO
COSERV GAS COMPANY, AN AFFILIATE OF DENTON COUNTY
ELECTRIC, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO
FURNISH AND SUPPLY GAS TO THE GENERAL PUBLIC IN THE CITY
OF WYLIE, COLLIN AND DENTON COUNTY, TEXAS, FOR THE
TRANSPORTING, DELIVERY, SALE AND DISTRIBUTION OF GAS IN
AND OUT OF AND THROUGH SAID MUNICIPALITY FOR ALL
PURPOSES; PROVIDING FOR THE PAYMENT OF A FEE OR CHARGE
FOR THE USE OF THE STREETS, ALLEYS AND PUBLIC WAYS;
REPEALING ALL PREVIOUS GAS FRANCHISE ORDINANCES WITH
THIS COMPANY AND ORDINANCES IN CONFLICT HEREWITH;
PROVIDING FOR SEVERABILITY, SAVINGS AND PENALTY CLAUSES;
PROVIDING FOR AN EFFECTIVE DATE; AND PROVIDING FOR THE
PUBLICATION OF THE CAPTION HEREOF.
WHEREAS the City Council is desirous of entering into a franchise agreement and
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passing a franchise ordinance granting to CoServ Gas Company a franchise to furnish and
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supply gas to the general public in Wylie, and for the transporting, delivery, sale and
distribution of gas in, out of and through Wylie for all purposes; and
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WHEREAS the City Council investigated and detennined that the granting of a
franchise to CoServ Gas Company is in the best interest of the citizens of Wylie.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF WYLIE, TEXAS:
Section 1: Incorporation of Findin2S.
The findings set forth above are incorporated into the body of this Ordinance as if fully
set forth herein.
Section 2: Grant of Franchise by City.
2.1. Wylie (hereinafter called "City") hereby grants to CoServ Gas Company
(hereinafter called "Company") a franchise and consents to use and occupy the present and
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future streets, alleys, highways, public places, public thoroughfares and grounds of City for
the purpose of laying, maintaining, constructing, operating and replacing therein and thereon
pipe lines and all other appurtenant equipment needed and necessary to deliver gas in, out of
and through City and to sell gas to persons, firms and corporations, including all the general
public, within City's corporate limits.
2.2 This franchise is granted for a term of five (5) years from and after the date that
this ordinance shall become effective.
2.3 The rights, privileges and franchises granted by this Ordinance are not to be
considered exclusive, and City hereby expressly reserves the right to grant, at
any time, like privileges, rights and franchises as it may see fit to any other
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person or corporation for the purpose of furnishing gas for light, heat and power
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to and for City and the inhabitants thereof. City shall not grant any more
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favorable conditions, including franchise fee, to any other gas utility franchisee
that are granted herein to Company.
Section 3:
Company's Responsibilities for Construction and/or Repair of its
Gas Distribution System.
3.1. The location of all mains, pipes, laterals and other appurtenant equipment shall
be consistent with ordinances and regulations of City as they may be, from time-to-time,
amended or revised by any subsequent ordinance or regulation.
3.2. A permit shall be obtained from City prior to the initiation of any construction,
repair, replacement or other act on or within the streets, alleys and/or public ways of City.
Company shall lay , maintain, construct, operate and replace its pipes, mains, laterals and other
equipment so as to cause as little interference as possible with traffic in City. Company shall
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within a reasonable time, or as required by any ordinance which may direct such timeliness,
repair, clean up and/or restore, to an approximate original condition, at Company's expense,
all streets, alleys, landscapes, grassed areas or any other surfaces or improvements existing in
or on the streets, alleys and public ways of City disturbed during the construction or repair of
its gas distribution system.
3.3. When Company shall make or cause to be made excavations or shall place
obstructions in any street, alley and/or other public place, the public shall be protected by
barriers and lights reasonably necessary to warn members of the public of the hazardous
conditions and to protect their safety; said barriers and lights to be erected and maintained by
Company consistent with the ordinances and regulations of City as may be, from time-to-time,
amended or revised by any subsequent ordinance or regulation.
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3.4. In the event of an emergency repair, City shall be notified as soon as possible
after Company's notification, and in no event shall such notification and request for permit be
later than the end of the next working day after the repairs are made or as prescribed by any
ordinance or regulation governing such emergencies repairs.
3.5. Erosion and sedimentation shall be controlled in accordance with the ordinances
and regulations of City, as may be, from time-to-time, amended or revised by any subsequent
ordinance or regulation. Permanent erosion control shall be required upon completion of all
work with the streets, alleys and public ways of City .
3.6 When Company is required to remove and/or relocate its mains, laterals and/or
other facilities to accommodate City construction of streets and alleys (the "Relocation"),
Company shall be entitled, upon submission of appropriate documentation, to reimbursement
from City or others for reasonable costs and expenses of the Relocation, provided that City is
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eligible for and receives reimbursement of the costs and expenses associated with the
Relocation. If either Company or City is eligible for reimbursement of the costs and expenses
associated with the Relocation under any reimbursement program as defined below, both
Company and City agree to include in any application the other Party's related costs and
expenses for the Relocation. The Parties shall provide reasonable notice to the other Party of
the application deadline in order to provide an adequate opportunity for the submittal of its
costs and expenses for inclusion in the application. A reimbursement program includes, but is
not limited to the following, the Federal-Aid System (or any successor thereto) and any
federal, state, county, local or other program that allows reimbursement for Reloc~tion costs
and expenses.
Section 4:
Services Rendered by Company and Its Ability to Char~e Citizens
and to Require Deposits.
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4.1. Company shall furnish adequate and efficient service to the public at fair, just
and reasonable rates and charges therefor; and Company shall maintain its property, equipment
and appliances in good order and condition.
4.2. Company shall be required, at its own exp,ense, to extend distribution mains in
any public right-of-way up to fifty feet (50') for any residential customer but only if such
customer, at a minimum, uses gas for un-supplemented space and water heating. Un-
supplemented space and water heating means a residential customer that uses gas exclusively to
heat its home and water without an electric source.
4.3. In addition to the rates charged for gas supplied and transported, Company may
make and enforce reasonable charges, rules and regulations for services rendered in the
conduct of its business, including a charge for services rendered in the inauguration of natural
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gas service, and may require, before furnishing service, the execution of a contract therefor.
However, all such charges, rules and regulations involving any consumer of gas within the
corporate limits of City shall be subject to regulations, supervision and approval by the City
Council as appropriate. Any such charges, rules and regulations being proposed by Company
shall be submitted in writing to the city manager or his/her designated representative prior to
instituting the charge, rule or regulation. Company shall have the right to contract with each
customer, if customer so desires, with reference to the installation of and payment for any and
all of the gas piping from the connection thereof with Company's main in the streets or alleys
to and throughout the consumer's premises. Company shall own, operate and maintain all
service lines, which are defined as the supply lines from Company's main to the consumer's
meter where gas is measured by Company. The consumer shall own, operate and maintain all
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yard lines and house piping. Yard lines are defined as the underground supply lines extending
from the point of connection with Company's customer meter to the point of connection with
consumer's house piping.
4.4. Company shall be entitled to require from each and every consumer of gas,
before gas service is commenced, a deposit in an amount calculated pursuant to Company's
Quality of Service Rules as may be in effect during the term of this franchise, and which are
incorporated, in their current form within this franchise agreement by reference as if
incorporated in full. Said deposit shall be retained and refunded in accordance with such
Quality of Service Rules and shall bear interest, as provided in Tex. Rev. Civ. Stat. Ann. art.
1440a as it may be amended from time to time. Company shall be entitled to apply said
deposit with accrued interest, to any indebtedness owed Company by the consumer making the
deposit.
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4.5. Company agrees that City may, at any time during the term of this Ordinance,
employ expert assistance and advice in detennining fair, just and reasonable rates to be
charged by Company to its consumers in the corporate limits of City and in determining the
extent to which Company is complying with the terms and conditions of this Ordinance.
Section 5: Terms of Payment of Franchise Fee to City.
5.1 Company agrees to deliver and pay to City, and City agrees to accept, annually,
with the first payment being due and payable on or before the ~~1tJao" MOO and
continuing annually thereafter until ~ ~J ;JC() t/ ., a sum of money which shall be
equivalent to [1] three percent (3%) of the gross receipts received by Company from the sale
of gas during each year to all its City Customers; and [2] three percent (3 %) of any fees
received by Company's local distribution center during each year for the transportation of gas
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to all its City Customers, regardless of the origination of the gas within Company's system of
lines; and [3] three percent (3 %) of the Transportation Purchase Price of any and all gas
transported by Company to all of its City Customers during each year.
5.2 Each transportation customer ("Transportation Customer") of Company shall
disclose to Company the purchase price of the gas. Should the Transportation Customer fail or
refuse to disclose or furnish such purchase price to Company, Company shall establish the
Transportation Purchase Price by utilizing 110% of the Houston Ship Channel Index of prices
for large packages of gas published each month in Inside FERC's Gas Market Report (or a
successor publication or another publication agreed upon by City and Company) for the period
of time the transportation service is performed. Company shall use all due diligence in
collecting from Transportation Customers any and all fees required by this franchise ordinance
and/or agreement, but shall not be responsible for paying the fees to City if Company's
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Transportation Customer refuses to pay. Provided, however, that if Company's
Transportation Customer refuses to pay the fee imposed on the Transportation Purchase Price
and remains delinquent in payment of such fee for a period greater than thirty days, Company
shall be responsible for the uncollected fee on any gas thereafter transported through the rights-
of-way of City to Company's Transportation Customer, but in no event shall the customer be
relieved of its obligation to reimburse Company for any fees paid to City.
5.3 For the purpose of calculating said fees, the previous year's receipts will be the
basis for such calculations; however, the payment made to City fulfills Company's obligation
for the year in which payment is made. The payment shall be for the rights and privileges
herein granted Company for that year, including expressly the right to use the streets, alleys
and public ways of City .
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5.4 Should any payment due date required by this agreement fall on a weekend or
declared bank holiday, payment shall be delivered to City no later than the close of business on
the day before the required due date contained within this Ordinance.
5.5 It is expressly agreed that the above-referenced payments shall be in lieu of any
payments for the right to use the streets, alleys and public ways of City, including expressly,
the charge pennitted to be levied by Texas Tax Code ss182.021-182.026 and 182.081-
182.082 ("Tax Sections"), or any successor statute pennitting such a charge, however
designated. Should City not have the legal power to agree that the above-referenced payments
shall be in lieu of all charges for the use of the streets, alleys and public ways of City of
Wylie, City agrees to apply the percentage necessary from the above-referenced payments to
satisfy Company's charges levied pursuant to the Tax Sections.
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5.6 If the law of the state is changed to provide for a greater charge than that agreed
to in this franchise, City may, at its option, notify Company of its desire to amend this
franchise and Company is required to enter into negotiations for such greater charge in lieu of
the charge provided herein, Company shall use due diligence in negotiating such greater
charge and shall not unduly inhibit such negotiations.
5.7 In order to determine the gross receipts received by Company for those
categories identified in the preceding paragraphs of this Section, Company agrees that on the
same date that payment is made, it will file with the City Secretary a sworn copy of a report
itemizing revenues from each of the categories identified in the preceding paragraphs of this
Section. Such report shall be in substantially the same form as Exhibit "A", attached hereto.
City, or its designated representative, may, at City's option, examine the books and records of
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Company to ascertain the correctness of the reports filed herein.
5.8 Should technological, market-driven, regulatory or similar changes occur in the
natural gas industry which create classes or categories of usage different from those
enumerated in this Section, or should Company alter the means, methods or types of uses of
the rights-of-way of City, or should City reasonably believe that the franchise fees contained in
Sections 5.1 and/or 5.2 should be amended in order to not impair City's ability to receive an
adequate franchise fee pursuant to this Ordinance, then City may initiate the renegotiation of
the franchise fee provision of this Ordinance. Should City request a change to the franchise
fee provision of this Ordinance, both parties agree to enter into a good faith negotiation.
"Good Faith", for the purpose of this Ordinance, shall mean an objective, diligent, timely and
responsible discourse on the issue(s) involved and a resolute attempt to settle the issue(s).
Should, as a result of renegotiation, City and Company agree to a change in a provision of this
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Ordinance, the change shall become effective immediately upon passage of an Ordinance by
the City Council and execution of the amendment by Company. Both parties agree that
passage and execution will be a mandatory act following renegotiation. Company agrees to
provide any and all information requested (except that which is deemed proprietary by a court
of competent jurisdiction) by City to assist in a determination of any changes in conditions,
practices and/or services provided by Company through the use of the right-of-way of City.
Section 6:
Release and Indemnification.
In consideration of the granting of this franchise, Company agrees that City shall not be
liable or responsible for and Company does hereby release and agree to indemnify and hold
harmless City from and against, all suits, actions, proceedings or claims of injury to any
person or persons, or damages to any property, brought by or made on account of any death,
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injuries to or damages received or sustained by any person or persons or for damage to or loss
of property arising out of, or occasioned by the construction, operation or maintenance of the
gas distribution plant or system of Company, except to the extent caused by the negligence of
City. In the event that any action, suit or proceeding is brought against City upon any liability
arising out of the construction, operation or maintenance of the gas distribution plant or system
of Company, City shall give notice in writing to Company by registered or certified mail.
Upon receipt of such notice, Company shall, at its own expense, defend City in any action
contemplated by this paragraph and take all steps as may be necessary or proper to prevent the
obtaining of a judgment against City and/or will satisfy any judgment obtained against City.
City agrees to cooperate with Company in connection with defending the action.
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Section 7:
Forfeiture.
7.1. If Company fails to comply with the terms of this franchise, after sixty (60)
days written notice, then City may compel compliance by suit in any court of competent
jurisdiction and if, upon final judgment being entered in favor of City, Company still fails to
comply with the terms of the franchise and the final judgment, City may compel compliance
under penalty of forfeiture hereof, with City having an option to purchase Company's property
located in City at a fair market value should such forfeiture occur. In the event City chooses
to purchase Company's property under penalty of forfeiture and City and Company cannot
agree upon the fair market value of the property, then the fair market value of Company's
property shall be established by a majority vote of three appraisers with one appraiser selected
by Company, one appraiser selected by City and one appraiser selected by the other two
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appraisers. If the two appraisers are unable to agree upon the third appraiser, then the third
appraiser shall be selected by order of a court of competent jurisdiction.
7.2 Company further agrees that if for any reason Company fails to pay the
payments referenced in Section 5 of this Ordinance within thirty (30) days following written
notice from City that Company has failed to make the payment, such failure shall be sufficient
to permit City to forfeit the franchise without court action.
Section 8:
Amendment.
8.1 This Ordinance governing supplying gas to the general public of City may be
amended at any time by the mutual written agreement of City and Company.
8.2 It is understood and agreed if an ordinance or agreement governing supplying
gas is granted by the City to another company that provides for a franchise fee in an amount
greater than the amount required to be paid by the Company pursuant to Section 5 herein, then
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Company's obligation under Section 5 shall be increased to the amount contained in the other
ordinance, agreement and/or franchise not to exceed four percent (4%) of Company's gross
revenues.
8.3 If Company's required franchise fee is increased as provided in paragraph 8.2
above, and the City subsequently grants to or renews a gas franchise with another gas company
that requires a franchise fee in an amount lower than the amount required by the amendment
pursuant to paragraph 8.2above, Company's franchise fee obligations shall be the lesser of (1)
the amount contained in the subsequent ordinance, agreement, franchise and/or renewal, or (2)
three percent (3%) of the Company's gross revenues as provided for under Section 5 above.
8.4 City shall give Company notice of every ordinance, agreement, franchise and/or
subsequent ordinance, agreement, franchise or renewal affecting Company's obligations under
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Sections 5 and/or 8 of this Ordinance including without exception notice of the effective date
and the amount of the franchise fee required under each such ordinance, agreement, franchise,
and/or subsequent ordinance, agreement, franchise or renewal. Company shall thereafter be
required to calculate its franchise fee payments to the City based upon the requirements of
Section 5 and/or 8 hereof not to exceed four percent (4%) of the Company's gross revenues,
beginning with the next full calendar quarter after receipt of the notice from the City.
8.5 The intent of the parties is that Company will be entitled to treatment
comparable to that which was afforded under the ordinance or agreement with the other gas
company(ies). The parties agree that at no time during the term of this Ordinance shall the
franchise fee payment exceed four percent (4 %) of Company's gross revenues.
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8.6 For the purpose of this section, City shall, on request of Company, provide
Company a copy of any gas use ordinance, franchise or similar agreement it enters into with
any other gas company during the term of this Ordinance.
Section 9 : Miscellaneous Provisions.
9.1. All Ordinances and parts of Ordinances of the City of Wylie, Texas in conflict
with the provisions of this Ordinance are hereby repealed.
9.2. The repeal of any Ordinance or part of Ordinance effectuated by the enactment
of this Ordinance shall not be construed as abandoning any action now pending under or by
virtue of such Ordinance or a discontinuing, abating, modifying or altering any penalty
accruing or to accrue, or as affecting any rights of the municipality under any section or
provisions of any Ordinances at the time of passage of this Ordinance.
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9.3. It is the intention of the City Council that this Ordinance, and every provision
thereof, shall be considered severable, and the invalidity or unconstitutionality of any section,
clause, provision or portion of this Ordinance shall not affect the validity or constitutionality of
any other portion of this Ordinance.
9.4. Company shall file its written acceptance of this franchise ordinance within sixty
(60) business days after passage by City.
9.5. The caption of this Ordinance shall be published in accordance with the laws of
the State of Texas and in compliance with the City Charter of Wylie.
9.6. This franchise ordinance shall become effective thirty (30) days after its passage
and publication, providing Company has filed with the City Secretary its written acceptance of
this franchise ordinance prior to the effective date.
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DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
WYLIE, TEXAS on this tJri day o~ 1999.
ATTESTED AND CORRECTLY
RECORDED: '
APPROVED AS TO FORM:
ABERNATHY, ROEDER, BOYD
& JOPLIN, P.C.
City Attorneys
RICHARD ABERNATHY
r IN WITNESS WHEREOF, both parties acknowledge and agree to be bound by the
terms and conditions of the foregoing Ordinance.
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CITY OF WYLIE, TEXAS
By:~QrA~
J HN MONDY
Its: M~yor
Date: 6/ ~!~
COSERV GASJ€OMYkIf'{ '-TO.
By: CoServ Natural, LLC., its general
P-:y~~~
Bill McGinnis, President
Date: O~ I dq /11
STATE OF TEXAS *
*
COUNTY OF COLLIN *
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EF RE ME, the undersigned authority, on this day personally appeared
known to me to be one of the persons whose names are
scribed to the for oing instrument; he/she acknowledged to me he/she is the duly
a thorized representative for the CITY OF WYLIE, TEXAS, and he/she executed said
instrument for the purposes and consideration therein expressed.
~IVEN UNDER MY HAND AND SEAL OF OFFICE this fJ() day of
r 1999. / .
BARBARA ANN SALINAS
Notary Public
STATE OF TEXAS
My Comniuion Expires 05-' $-2002
My CO~isSion Expires:
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ORDINANCE GRANTING FRANCHISE TO COSERV GAS COMPANY - Page 14
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ST ATE OF TEXAS *
*
COUNTY OF ~ *
e, the undersigned authority, on this day personally appeared
t . known to me to be one of the persons whose names are
subscribed to th foregoing instrument; he/....acknowledged to me he/" is the duly
authorized representative for COSERV GAS) , and he/..-executed said instrument
for the purposes and consideration therein expressed. L..'f"'D.
'1 day of
~NDER MY HAND AND SEAL OF OFFICE this
1999.
J;>>.: J?~~
Notary Public in d for the
State of Texas
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EXlllBIT "A"
CITY OF WYLIE
ANNUAL FRANCHISE FEE PAYMENT
COSERV GAS COMPANY
For Year Ending:
No. Of Subscnl>ers by Qass:
(Less Subscribers Outside City Limits)
Class:
Number of Customers:
Residential
Commercial
Industrial
Public Authority
Electric Generation
Transportation
Sales and Transportation Revenues in City of Wylie:
Revenues:
: "
Residential Gas Sales
Commercial Gas Sales
Industrial Gas Sales
Public Authority Gas Sales
Gas Transportation Revenues for Gas
Transported to Customers
Total Sales and Transportation Revenues
in City of Wylie:
Plus: Purchase Price of Gas Transported
by CoServ Gas Company to Customers
in the City of Wylie
Less Adjustments (Net Bad Debts):
Adjusted Gross Revenues
>
<
Franchise Rate x Adjusted Gross Revenues
Total Franchise Fee Amount:
x3% =
Franchise Fee Payment Amount:
Authorized Signatl.U'e
Date
ORDINANCE GRANTING FRANCHISE TO COSERV GAS COMPANY - Page 16
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THE WYLIE NEWS
~(.~;_0Ii,,:yii;'~~c~~;"~i~~,~i;~I1~_~~~ ~,;;ro~,di;;g~i~
II () N. Ballard SI.
1'.0. Box ~69
Wylie, Texas 75098
((72) 442-5515
Fax (972) 442-4~ 18
STATE OIj' TEXAS
C()UNTY OF COLLIN
Before me, the undersigned authority, on this day personally appeared Chad Engbrock, of THE WYLIE
NEWS, a newspaper regularly published in Collin County, Texas and having general circulation in Collin
County, Texas, who being by me duly sworn deposed and says that the foregoing attached
City 06 Wyli~ - O~dinanQ~ No. 99-11
was puhlished in said newspaper on the following dates, to-wit:
JtLty 21
, 1999, and
,1999.
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Suhscribed and sworn to before me this the
to certify which witness my hand and seal of office.
'I
day of
(' ({.L0(( ~)(.
,J
, J 999,
/ . t..l ~ r/---/
S
Notary ubUe in and for
The State of Texas
My Comnlission Expires -~/, c9 Ii -OJ?
Serving
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CITY OF WYLIE
ORDINANCE NO. 99-11
AN ORDINANCE OF THE CITY
OF WYLIE, TEXAS, GRANTING
TO CONSERV GAS COMPANY,
AN AFFILIATE OF DENTON
COUNTY ELECTRIC. ITS SUC-
CESSORS AND ASSIGNS, A
FRANCHISE TO FURNISH AND
SUPPL Y GAS TO THE GENER-
AL PUBLIC IN THE CITY OF
WYLIE, COLLIN AND DENTON
COUNTY, TEXAS, FOR THE
TRANSPORT A TION, DELIV-
ERy, SALE AND DISTRIBU-
TION OF GAS IN AND OUT OF
AND THROUGH SAID MUNICI-
PALITY FOR ALL PURPOSES;
PROVIDING FOR THE PAY-
MENT OF A FEE OR CHARGE
FOR THE USR OF THE
STREETS, ALLEYS AND PUB-
LIC WAYS; REPEALING ALL
PREVIOUS GAS FRANCHISE
ORDINANCES WITH THIS
COMPANY AND ORDINANCES
IN CONFLICT HEREWITH; PRO-
VIDING FOR SEVERABILITY,
SA VING AND PENALTY
CLAUSES; PROVIDING FOR AN
EFFECTIVE DATE; AND PRO-
VIDING FOR THE PUBLICA-
TION OF A CAPTION HERETO.
Barbara A Salinas
City Secretary
8,1 t-339