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HomeMy WebLinkAbout0248NORDINANCE NO. 248 (Newt/ Series) AN ORDINANCE GRANTING TO PACIFIC GAS AND ELECTRIC COMPANY, ITS SUCCESSORS AND ASSIGNS, THE FRANCHISE T0. USE, FOP, TRANS- MITTING AND DISTRIBUTING ELECTRICITY YVITHIN.THE'.CITY OF SAN LUIS OBISPO FOR ANY AND ALL PURPOSES OTHER THAN THOSE AU- THORIZED UNDER. SECTION::I9.OF ARTICLE XI OF THE CONSTITUTION OF THE STATE OF CAI;IFORNIA -AS SAID SECTION EXISTED PRIOR TO ITS AMENDMENT ON OCTOBER 10_, 1911, ALL POLES, INIRES, CON- DUITS- AND APPURTtRANCES;WHICH ARE NOW OR MAY HEREAFTER. BE .LAWFULLY PLACED �!N,THEI PUBLIC STREETS, ?NAYS AND "PLACES' WITHIN SAID CITY, ;AND` "TG CONSTRUCT AND USE IN SEND PUBLIC STREETS, YVAYS AND PLACES ALL POLES, 46IRES, COI�UITS AND APPURTENANCES, ,INCLUDING "COMM NICATI©N CIRCUITS, NECESSARY OR PROPER FOR.SAID PURPOSES, Be it ordained by the „;Council of the.•City:.of San Luis Obispo as, follows: 'SECTION ONE Whenever in this ordinance the words or phrases hereinafter in this section defined are used, they shall.have the respective meanings assigned to them in the following definitions, (unless., the given instance., the context wherein they are used shall clearly,,import a different meaning): (a) The word "grantee” shall mean the corporation to which the franchise contemplated'in this ordinance is granted and its lawful successors* or assigns; (b) The word "city" shall mean the City of San Luis Obis.po,. a municipal corporation of the State of California, in its present incorporated form.or in any later reorganized, con- solidated., enlarged.or reincorporated form; (c) The word "streets "`,shall mean the public streets, ways, alleys and places as the same now or may hereafter exist within said city; (d) The phrase "poles,, wires, conduits and.appurtenances" shall mean poles, towers, 'supports, wises, conductors, cables, guys, stubs, platforms, crossarms,- braces, transformers, in- sulators., conduits; ducts, vaults, manholes, meters, cut -outs, . T1_ switches, communication circuits, appliances,.attachments, appurtenances and any other property located or to be located in, upon, along, across, under or over the streets in the city, and used or useful in the transmitting'and/or distributing of electricity; (e) The phrase "construct and use" shall mean to con- struct., erect., install, lay :operate, maintain, use, repair or replace; (f) The phrase "constitutional franchise" shall mean the,right acquired through acceptance by said grantee,or its predecessor in estate of the offer contained in the provisions of Section 19' -of Article XI of the Constitution of the State of California, as said section existed prior to its amendment on October 10, 1911. SECTION TWO The franchise (a) to use, for transmitting and distributing electricity within the City of San'Luis Obispo for any and.all purposes other than those authorized under said'constitutional� franchise, all poles, wires, conduits and appurtenances which now are or may-hereafter be law- fully placed in the streets within said city, and (b) to 'construct and use in said streets all poles, wires, conduits and appurtenances,.including communication circuits,, necessary or proper for said purposes;' is hereby granted to Pacific Gas and Electric Company for an indeterminate term - not exceeding thirty five (35),years from and after the effective date of this ordinance upon the terms and conditions set forth in the Franchise Act of 1937 and in the Charter of said city. SECTION THREE The grantee of said franchise shall during the term thereof pay to said city a sum annually which shall be equivalent to two per cent . of the gross annual receipts. of said grantee arising from the use, opera - tion or possession of said franchise; provided, however, that such payment -2- shall in no event be less than a sum which shall be equivalent to one -half per cent of the gross annual receipts derived by grantee from the sale of electricity within the limits of such city under both said franchise and said constitutional franchise. SECTION FOUR The grantee shall file with the clerk of said city, within three months after the expiration of the calendar year, or fractional calendar year, following the date of the granting hereof, and within three months after the expiration of each and every calendar year thereafter, a statement or report duly verified by the Treasurer, Secretary, Assistant A Treasurer or Assistant Secretary of said grantee, showing in detail the total gross receipts of'such grantee arising from all the business done by said grantee within the City of San Luis Obispo in the distribution and sale . of electricity for the calendar year immediately preceding such statement or report, or for such fractional calendar year. Such grantee shall pay to said city at the time of filing such statement, in lawful money of the United States, the aforesaid percentage of its gross receipts for such calendar year, or such fractional calendar year, covered by such statement. Any neglect, omission,or refusal by.,said grantee to file such verified state- ment, or to pay said percentage at the time and in the manner specified, shall be grounds for the declaration of a forfeiture of this franchise and of all rights of grantee hereunder. SECTION FIVE At the expiration of the period for which the franchise herein described is granted, or at aray time prior thereto, the city may at its election and upon the payment of a fair valuation therefor, as determined by the Railroad Commission of the State of California in the manner provided by the Public Utility Act of the State of California, which determination shall include a value 'based upon severance damages caused to the remaining properties of said grantee, purchase and take over to itself the property and plant of the grantee in its entirety within the limits of the City of San Luis Obispo, but in no case shall the value of said franchise be con- -3- sidered or taken. izito account in fixing, such valuation, . except .to the ex- , tent -of the amounts (1) paid to the city as reimbursement for any expendi tures.for publication of notice or ordinance in "connection with the grant of said franchise, and (2) constituting a prorata of the sum initially paid for said franchise based on the ratio of the - number of years remaining on the unexpired term of said franchise to-the full term thereof; which amounts may be taken into. account in fixing such valuation. Upon such payment by the city the plant,and.property of grantee thus to be acquired shall become the property of the city by virtue of the grant in payment thereunder and without.the execution of any instrument or conveyance. SECTION SIX The franchise granted hereby shall not be leased, assigned or otherwise alienated without the express consent of the City,.but no,such lease, assignment or other alienation shall constitute a forfeiture or. termination of this franchise, except at the option of the City, expressed by resolution of its City Council. Such resolution declaring the forfeiture or termination of this franchise may be adopted by the`City Council at any time subsequent to any such lease, assignment or other alienation, and irrespective of the length.of time between such lease, assignment or other- alienation, and _the . adoption of such resolution. No dealings with-a lessee or,assignee of the grantee on the part of the City to require the performance or,any act or payment of any com- pensation by such lessee or assignee.shall be deemed to operate as such,,. consent;.provided that nothing herein shall be construed to prevent the grantee of such franchise from including the franchise in a mortgage or trust deed executed for the purpose of obtaining money for corporate.objects. SECTION SEVEN This franchise is granted under and in accordance with the provisions of the Franchise Act of 1937 and of the Charter of the City of San Luis Obispo. This franchise,is granted subject °to all the rights, powers and privileges reserved to the City of San Luis'Obispo, or to the City Council of said -city, by the Charter of the City of San Luis Obispo, whether the -reservation of any such right, power or privilege be expressed in this ordinance or not. SECTION EIGHT The grantee of'this franchise shall (a) construct, install and maintain all pipes, conduits, poles, wires and appurtenances in accordance and.in conformity with all of the ordinances, rules and regulations here- tofore or hereafter adopted by the City Council of said city in the exer- cise of its police powers and not in conflict with the paramount authority of the state, and, as to State highways, subject to the provisions of general laws relating to the location and maintenance of such facilities therein, (b) pay to the city on.demand the cost of all repairs to public property made necessary by any of the operations of the grantee of this franchise, (c) indemnify and hold harmless said city and its officers from any and all liability for damages proximately resulting from any operations under this franchise, (d) remove or relocate without expense to the city any facilities installed, used and maintained under this franchise if and when made necessary by any lawful change of grade, alignment or width or any public street, way, alley or place, including the construc- tion of any subway or viaduct, by said city. SECTION NINE If the grantee of this franchise, its successors or assigns, shall fail, neglect or refuse to comply with any of the terms, limita- tions, provisions or conditions of this franchise or of the Chaster of the City of San _Luis Obispo, and shall not within ten (10) days after written demand for compliance made upon order of the City Council of said city, begin the work of compliance or, after such beginning, shall not prosecute the same with due diligence to completion, then said city, by resolution adopted and passed by its City Council, may declare this franchise for- feited. The city'may sue, in its own name and in any court of competent _5� r juriediction,'for the forfeiture of this franchise in the event. of any, failure, neglect or refusal by the grantee, its .successors or assigns, to comply with any of the terms;*limitations, provisions or conditions of this franchise. SECTION TEN The provisions contained in Section 101 of the Charter of the city providing that no payment.shall be made by the grantee of a franchise until after five years from the granting thereof are spe,cifical- ly waived by the grantee, and all payments shall be made as hereinbefore provided. In. determining the payment to be made to the City annually, the City Council hereby declares that it has taken into consideration the pro- visions of the Franchise Act of 1937.adopted by the Legislature of the State of California in which Act the minimum annual payment to be made` by the grantee.of any electric franchise issued under the provisions of Said Act is fixed at one -half per cent of the gross annual receipts derived, from the sale of electricity within the limits of.the City .by the grantee. In the._event that the Legislature of the State of California hereafter.and,, during the life of this franchise adopts a new act regulating or providing for the grant of franchises by municipalities, 'or any act similar to said Franchise Act of 1937, or any amendment to said Franchise Act of 1937, `and, in said actor amendment, provides for a minimum payment to be made to municipalities in a sum greater than one -half per cent of the gross annual receipts derived from the sale of electricity within the limits of the City by the grantee, then this ordinance sh4l.be deemed to be amended, and from and after the effective date of ,such action on the part of the Legislature of the... State of-California the payment thereafter to be made to the City shall be. the minimum - payment specified in such act of the Legislature of the State of California; provided, however,, ..that in no event' shall such payment exceed one per cent of the gross annual receipts derived from the salejof electricity within the limits of,the- City,,irrespective of the fact that such legislative act may contain a provision for the payment.of a' -6- greater percentage. SECTION ELEVEN The grantee of the franchise granted hereunder shall, on or before the effective date of this ordinance, file with the city a good and sufficient bond, with a good and sufficient surety, to be approved by the City Council, in the penal sum of $2,500.00, conditioned that the grantee shall well and truly keep and perform each and every term and condition of said franchise, and that in case of any breach of condition of such bond, the whole amount of the penal sum shall be taken and deemed to be liquidated damages and shall be recoverable from the principal and surety upon said bond. Said bond shall be kept in full force and effect during the entire term of said franchise. SECTION TWELVE The grantee of the franchise granted hereunder shall pay to the city a sum sufficient to reimburse it for all publication expenses in- curred by it in connection with the granting of the said franchise, such payment to be made within thirty (30) days after the city shall have furnished such grantee with a written statement of such expenses; and, within such time, shall also pay to said City the sum of $5,000.00, plus 1/2% of the grantee's gross receipts from sales of electricity within the City from January 1, 1943 to the effective date of such franchise. SECTION THIRTEEN This ordinance shall become effective thirty (30) days after its final passage, unless suspended by a referendum petition filed as pro- vided by law. SECTION FOURTEEN The franchise granted hereby shall not become effective until written acceptance thereof shall have been filed by the grantee with the City Clerk. SECTION FIFTEEN This bill, having been first passed to print on .June _7, 1943, and having been published as originally passed with the ayes and noes thereon -7- for two days, and having thereafter been amended before the final adoption . thereof, shall be passed to print and republished as amended, for one day in the Telegram - Tribune, a daily newspaper of general circulation published and circulated in said City,,before final action is taken hereon. First introduced at a regular meeting of the City Council of said City and passed to print on the ?7th.',day of June, 19431 and thereafter passed to print as amended, on the'6th. day of July, 19431 by the following vote.: DES; R.Pj1owell,Ralph C.:Ken..pedy,F.C.Kimball, Clyde T. 0tNan NOES: Joseph he'r ABSENT; None .f Mayor ATTEST City Clerk Finally passed this 16th day of August, 1943 upon the following roll call vote: AYES: R.P.Howell,Ralph C.Kennedy,F.C.Kimball, Clyde T. O'Nan NOES: JOSEPH LEARY ABSENT: None Mayor City Clerk