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Ordinance No. 767 (1978 Series) - PG&E Franchisea ORDINANCE NO. 767 (1978 Series) AN ORDINANCE OF THE CITY OF SAN LUIS OBISPO GRANTING TO PACIFIC GAS AND ELECTRIC COMPANY, ITS SUCCESSORS AND ASSIGNS, THE FRANCHISE 1) TO USE, FOR TRANSMITTING AND DISTRIBUTING ELECTRICITY SUITED FOR LIGHTING BUT FOR USE BY CONSUMERS FOR ANY AND ALL LAWFUL PURPOSES OTHER THAN LIGHTING, ALL POLES, WIRES, CONDUITS AND APPURTENANCES WHICH ARE NOW OR MAY HEREAFTER BE LAWFULLY PLACED AND MAINTAINED IN THE PUBLIC STREETS AND PLACES WITHIN THE CITY OF SAN LUIS OBISPO, UNDER THAT CERTAIN FRANCHISE OF GRANTEE AC- QUIRED PURSUANT TO 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; (2) TO CONSTRUCT, MAINTAIN AND USE IN SAID PUBLIC STREETS AND PLACES ALL POLES, WIRES, CONDUITS AND APPURTENANCES WHEN- EVER AND WHEREVER SAID CONSTITUTIONAL FRANCHISE IS NOT NOW NOR SHALL HEREAFTER BE AVAILABLE THEREFOR, NECESSARY TO TRANSMIT_AND DISTRIBUTE ELECTRICITY _ _ SUITED FOR, AND FOR USE BY CONSUMERS FOR, ANY OR ALL LAWFUL PURPOSES; AND (3) TO UTILIZE SAID POLES, WIRES, CONDUITS AND APPURTENANCES IN SAID PUBLIC STREETS AND PLACES FOR TRANSMITTING ELECTRICITY FOR USE OUTSIDE THE BOUNDARIES OF THE CITY FOR ANY AND ALL LAWFUL PURPOSES, AND PROVIDING THE TERMS AND CONDITIONS OF THE FRANCHISE SO GRANTED. BE IT ORDAINED by the Council of the City of San Luis Obispo as follows: AG :ktm.3%8%78 rev . 6 4 7 8 0 767 SECTION 1. DEFINITIONS. Whenever in this ordinance the words and phrases herein- after in this section defined are used, they shall have the respective meanings assigned to them in the following definitions: a) The word "grantee" shall mean Pacific Gas and Electric Company, and its lawful successors or assigns; b) The word "city" shall mean the City of San Luis Obispo, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated, 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 city, including State highways, now or hereafter established within city, and freeways hereafter established within city; d) The phrase "poles, wires, conduits and appurtenances" shall mean poles, towers, supports, wires, conductors, cables, guys, stubs, platforms, crossarms, braces, transformers, insulators, conduits, ducts, vaults, manholes, meters, cut- outs, switches, communication circuits, appliances, attach- ments, appurtenances and, without limitation to the foregoing, any other property located or to be located in, upon, along, across, under or over the streets of city, and used or useful in transmitting and /or distributing electricity. e) The phrase "construct, maintain and use" shall mean to construct, erect, install, operate, maintain, use, repair, or replace; AG:ktm 3/8/78 -2- rev.6/5/78 f) The phrase "constitutional franchise" shall mean the right acquired through acceptance by grantee or its prede- cessor 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 2. GRANT OF FRANCHISE. The franchise (1) to use, for transmitting and distributing electricity -- suited for lighting but for use by consumers for any and all lawful purposes other than lighting, all poles, wires, conduits and appurtenances which are now or may hereafter be lawfully placed and maintained in the streets within city under the constitutional franchise of grantee; (2) to construct, maintain and use in said streets all poles, wires, conduits and appurtenances whenever and wherever the constitutional franchise of grantee is not now nor shall hereafter be available therefor, necessary to transmit and distribute dlectricity suited for, and for use by consumers for, any or all lawful purposes; (3) to utilize said poles, wires, conduits and appurtenances in said public streets and places for transmitting electricity for us_e outside the boundaries of city for any and all lawful purposes is hereby granted to Pacific Gas and Electric Company, its successors and assigns. AG:ktm 3/8/78 -3- rev.6/5/78 rev.7/24/78 SECTION 3. RELOCATION OF FACILITIES. Grantee of this franchise shall relocate, without expense to city, any poles, wires, conduits and appurtenances theretofore installed, and then maintained or used under this franchise, if and when made necessary by any lawful change of grade, alignment or width of any streets by city, including the construction of any subway or viaduct, or any other conflict with a municipal govern- ment purpose. SECTION 4. TERM. Said-franchise shall be indeterminate, that is to say, said franchise shall endure in full force and effect until the same shall, with the consent of the Public Utilities Commission of the State of California, be voluntarily surrendered or aban- doned by grantee, or until the state or some municipal or public corporation thereunto duly authorized by law shall purchase by voluntary agreement or shall condemn and take under the power of eminent domain, all property actually used and useful in the exercise of said franchise and situate in the territorial limits of the state, municipal or public corporation purchasing or con- demning such property, or until said franchise shall be forfeited for noncompliance with its terms by grantee. SECTION 5. CONSIDERATION. Grantee of said franchise shall during the term thereof pay to city a sum annually which shall be equivalent to two percent 20) of the gross annual receipts of grantee arising from the use, operation or possession of said franchise; provided, in case the AG:ktm 6/5/78 -4- State Legislature raises the minimum percentage allowable, the new rate shall apply; and provided, however, that such payment shall in no event be less than a sum which shall be equivalent to one -half percent (1/20) of the gross annual receipts derived by grantee from the sale of electricity within the limits of city under said franchise and said constitutional franchise. In addition to the foregoing, grantee shall pay to city within thirty (30) days of the issuance by the Public Utilities Commission of a certificate of convenience and necessity to exercise the franchise the sum of Ten Thousand Dollars ($10,000.00). If, at any time after the payment of said sum, it shall be adjudged that said franchise did not become effective or was or is invalid, or if the grantee shall, at any time, be prevented by the city or by judgment procured by any other person from exercising the same for any reason other than noncompliance with its-terms by the grantee, then said sum of Ten Thousand Dollars ($10,000.00) shall be forthwith repaid by the city to the grantee. SECTION 6. REPORTS. Grantee shall file with the City Clerk within three (3) months after the expiration of the calendar year, or fractional calendar year, following the date of the granting hereof, and within three (3) months after the expiration of each and every calendar year thereafter, a duly verified statement showing in detail the total gross receipts of grantee during the preceding calendar year, or such fractional calendar year, from the sale of energy within city. Grantee shall pay to city within fifteen 15) days after the time for filing such statement, in lawful AG:ktm 3/8/78 -5- r rev. 6/5/78 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 grantee to file such verified statement, 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 7. AUTHORITY FOR GRANT. This franchise is granted under the Indeterminate Franchise Act of 1937 and pursuant to Article XIII of the Charter of the City of San Luis Obispo, adopted in 1955, and no other authority. SECTION 8. COMPLIANCE WITH LAWS. All facilities or equipment of grantee that grantee shall construct, maintain and use or remove, pursuant to the provisions of the franchise granted herein shall be accomplished in accordance with the ordinances, rules and regulations of city now or as here- after adopted or prescribed which are not in conflict with the paramount authority of such rules, regulations and orders as are promulgated or approved by or are filed with the Public Utilities Commission or other governmental authority having jurisdiction in the premises. SECTION 9. ADMINISTRATIVE PRACTICES. Grantee is herewith charged with the responsibility of preparing, with the cooperation of city, a manual of administrative AG:ktm 6/5/78 -6- practices which shall govern the installation and removal of grantee's facilities in the streets of city which shall include, but not be limited to, cathodic protection practices. Once each year, com- mencing with the first full calendar year of the franchise granted herein, it is to be the joint responsibility of grantee and city. to review and update such administrative practices. Both grantee and city are charged with the duty to review and update such admin- istrative practices by a method of mutual cooperation which shall take into consideration the reasonable needs and convenience of each party; provided that said administrative practices and the terms and conditions thereof shall be at all times subject to approval of the City Council as expressed by appropriate legis- lative action, and shall not conflict with the paramount authority of such rules, regulations and orders as are promulgated or approved by or are filed with the-Public Utilities Commission or other govern- mental authority having jurisdiction in the premises. Following the preparation of said manual, and its approval by the City Council, it shall govern the practices of the grantee in its installation and removal of grantee's facilities in the streets of city. SECTION 10. CITY RESERVED POWERS. a) City reserves the right for itself to lay, construct, erect, install, use, operate, repair, replace, remove, relocate, regrade or maintain below surface or above surface improvements of any type or description in, upon, along, across, under or over the streets of the city. City further reserves the right to re- locate, remove, vacate or replace the streets themselves. If the AG;ktm 6/5/78 -7- necessary exercise of the aforementioned reserved rights is made necessary in order to accommodate a municipal government purpose and conflicts with any poles, wires, conduits and appurtenances of grantee constructed, maintained and used pursuant to the pro- visions of the franchise granted hereby, whether previously con- structed, maintained and used or not, grantee shall, without cost or expense to city after written notice from the City Administative Officer, or his designated representative, and request to do so, begin the physical field construction of changing the location of all facilities or equipment so conflicting. Grantee shall proceed promptly to complete such required work. b) Irrespective of any other provision of this ordinance, grantee's right to construct, maintain and use, or remove poles, wires, conduits and appurtenances thereto shall be subject at all times to the right of city, in the reasonable exercise of its police power in response to a direct and immediate threat to the health or safety of the public, to require the removal or relocation of said poles, wires, conduits and appurtenances thereto at the sole cost and expense of grantee. SECTION 11. REPAIR COSTS. Grantee shall pay to city on demand the cost of all repairs to city property made necessary by any of the operations of grantee under the franchise granted hereby; provided, however, that grantee may make repairs to streets, sidewalks, curbs and gutters itself at its own cost in accordance with city specifi- cations if the same can be done without undue inconvenience to the public use of the streets. AG:ktm 6/5/78 -8- SECTION 12. FORFEITURE. This franchise is granted upon each and every condition herein contained, and shall be strictly construed against grantee. Nothing shall pass by the franchise granted hereby to grantee unless it be granted in plain and unambiguous terms. Each of said conditions is a material and essential condition to the granting of the franchise. If grantee shall fail, neglect or refuse to comply with any of the conditions of the franchise granted hereby, and if such failure, neglect or refusal shall continue for,more than thirty (30) days after written demand by the City Administrative Officer for compliance therewith, then city, by the City Council, in addition to all rights and remedies allowed by law, thereupon may terminate the right, privilege and franchise granted in and by this ordinance, and all the rights, privileges and the franchise of grantee granted hereby shall thereupon be at an end. Thereupon and immediately, grantee shall surrender all rights and privileges in and to the franchise granted hereby. No provision herein made for the purpose of securing the enforcement of the terms and conditions of the franchise granted hereby shall be deemed an exclusive remedy or to afford the ex- clusive procedure for the enforcement of said terms and conditions, but the remedies and procedure outlined herein or provided, including forfeiture, shall be deemed to be cumulative. SECTION 13. ACQUISITION AND VALUATION. Nothing in this ordinance or in the franchise granted hereby shall be construed as in any way impairing city's rights AG:ktm 6/5/78 -9- to acquire property of grantee through the exercise of city's power of eminent domain, or through voluntary agreement between city and grantee. In the event that city chooses to.exercise its power of eminent domain, it shall do so in accordance with the procedures provided by the general law of the State of California for the condemnation of.public utility property. The valuation of such property for condemnation purposes shall be made in accordance with such general law. SECTION 14. UNDERGROUNDING. a) It is the city's intent to underground all utilities as expeditiously as possible. b) Presently, grantee is engaged in a program of con- verting to underground certain of its facilities in accordance with Decision No. 73078 of the California Public Utilities Com- mission. At this time, said decision requires grantee to budget prior to the end of each calendar year, certain sums of money for said program for the next succeeding year and allocate these sums to undergrounding projects in the various governmental juris- dictions throughout grantee's entire service territory on the basis of the number of customers in each governmental jurisdiction. Grantee shall at all times use its best efforts to accomplish as much conversion in the city as may be accomplished through the allocation or reallocation of funds by the California Public Utilities Commission pursuant to Rule 20. AG:ktm rev. 7/24/78 -10- i c) In addition to the foregoing, grantee agrees to per- mit city to install its conduits in grantee's trenches upon pay- ment of city's proportionate share of trenching costs. Said conduits shall include, but not be limited to, conduits for street lighting, traffic signals and fire alarm systems. SECTION 15. HOLD HARMLESS. Grantee of the franchise granted hereby shall indemnify, save and hold harmless, city and any officers and employees thereof against and from all damages, judgments, decrees, costs and expen- ditures which city, or such officer or employee, may suffer, or which may be recovered from, or obtainable against city, or such officer or employee, for, or by reason of, or growing out of or proximately resulting from the exercising by grantee of any or all of the rights or privileges granted hereby, or by reason of any act or acts of grantee or its servants or agents in exercising the franchise granted hereby, and grantee shall defend any suit that may be instituted against city, or any officer or employee thereof, by reason of or growing out of or proximately resulting from the exercise by grantee of any or all of the rights or priv- ileges granted hereby, or by reason of any act or acts of grantee, or its servants or agents, in exercising the franchise granted hereby. SECTION 16. EFFECTIVE DATE. This ordinance shall become effective thirty (30) days after its final passage unless suspended by a referendum petition filed as provided by law. AG:ktm 6/5/78 -11- SECTION 17. WRITTEN ACCEPTANCE. The franchise granted hereby shall not become operative until written acceptance thereof shall have been filed by the grantee with the City Clerk. SECTION 18. PUBLICATION AND PUBLICATION COSTS. This ordinance, together with the ayes and noes, shall be published once in full, at least three (3) days prior to its final passage in the Telegram- Tribune, a newspaper published and circulated in said city. The grantee of said franchise shall pay to the city a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting thereof; such payment to be made within thirty (30) days after the city shall have furnished such grantee with a written statement of such expense. INTRODUCED AND PASSED TO PRINT by the Council of the City of San Luis Obispo at a regular meeting thereof held on the 18th day of July , 1978, on motion of Councilman Jorgensen, seconded by Councilman Settle and on the following roll call vote: AYES: Councilmen Dunin, Jorgensen, Petterson, Settle & Mayor Schwartz NOES: None ABSENT: None ATTEST: C ' e. AG:ktm 3/8/78 rev.6/5/78 12- Approved as to form: WENDT, MITCHELL, SINSHEIMER, de la MOTTE & LILLEY City Attorney By Allen Grimes Approved as to content: City Administrati Officer Director of Public Services City Eng'neer hector 1nancUl AG:ktm 6/5/78 -13- I L ORDINANCE NO. 767 FINALLY PASSED this 1st day of August , 1978 , on motion of Councilman Settle seconded by Councilman Jorgensen on the following roll call vote: AYES: Councilmen Jorgensen, Petterson, Settle and Mayor Schwartz NOES: None ABSENT: Councilman Dunin ATTEST: J. zpa rick, CITY CLERK