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Ordinance No. 770 (1978 Series) - So Cal Gas FranchiseORDINANCE NO. 770 (1978 SERIES) AN ORDINANCE OF THE CITY OF SAN LUIS OBISPO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CALIFORNIA CORPORATION, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPUR- TENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. BE IT ORDAINED by the Council of the City of San Luis Obispo as follows: SECTION 1. DEFINITIONS. Whenever in this ordinance the words and phrases hereinafter in this section defined are used, they shall have the respective meanings assigned to them in the following definitions (unless, in 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 Obispo, a municipal corporation of the State.of California, in its present incorporated form or in any later reorganized, con- solidated 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 es- tablished within city, and freeways hereafter established within city; 0 770 AG:ktm 6/9/78 d) The word "Engineer" shall mean the City Engineer of the City of San Luis Obispo or his designee; e) The word "Gas" shall mean natural or manufactured gas, or a mixture of natural and manufactured gas; f) The phrase "Pipes and Appurtenances" shall mean pipe, pipeline, main, service, trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit, appliance, attachment, ap- purtenance and any other property located or to be located in, upon, along, across, under or over the streets of the City, and used or useful in transmitting and distributing gas. g) The phrase "lay and use" shall mean to lay, construct, erect, install, operate, maintain, use, repair, replace, or remove. h) The phrase "constitutional franchise" shall mean the right acquired through acceptance by 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 2. GRANT OF FRANCHISE. That the right, privilege and franchise, subject to each and all of the terms and conditions contained in this ordinance, and pursuant to the provisions of Division 3, Chapter 2 of the Public Utilities Code of the State of California, known as the Franchise Act of 1937, be and the same is hereby granted to Southern California Gas Company, a corporation organized and existing under and by virtue AG:ktm -2- 6/9/78 of the laws of the State of California, herein referred to as the Grantee ", to lay and use pipes and appurtenances for transmitting and distributing gas for any and all purposes, under, along, across or upon the streets of the City. SECTION 3. TERM. This franchise shall be indeterminate, that is to say, this 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 abandoned by its possessor, or until the State of California or some municipal or public corpor- ation 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 this franchise, and situate within the territorial limits of the State, municipal or public corporation purchasing or condemning such property, or until this franchise shall be forfeited for non- compliance with its terms by the possessor thereof. SECTION 4. CONSIDERATION. The Grantee shall pay to the City at the times hereinafter specified, in lawful money of the United States, a sum annually which shall be equivalent to two percent (2 %) of the gross annual receipts of Grantee arising from the use, operation or possession of said franchise; provided, however, in case the State Legislature raises .the minimum percentage allowable, the new rate shall apply; and provided, further, that such payment shall in no.. event be less than one percent (lo) of the gross annual receipts of the Grantee from the sale of gas within the limits of the City under this AG:ktm -3- 6/9/78 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 5. REPORTS. The Grantee of this franchise 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 grant of this franchise, and within three (3) months after the expiration of each and every calendar year thereafter, a duly verified state - meet showing in detail the total gross receipts of the Grantee, its successors or assigns, during the preceding calendar year, or such fractional calendar year, from the sale of the utility service within the City for which this franchise is granted. It shall be the duty of the Grantee to pay to the City within fifteen (15) days after the time for filing such statement in lawful money of the United States, the specified percentage of its gross receipts for the calendar year, or such fractional calendar year, covered by such statement. Any neglect, omission or refusal by said Grantee to AG:ktm -4- 6/9/78 file such verified statement, or to pay said percentage, at the time or in the manner hereinbefore provided, shall be grounds for the declaration of a forfeiture of this franchise and.of all rights thereunder. SECTION 6. EFFECT OF ACCEPTANCE. This grant is made in lieu of all other franchises owned by the Grantee, or by any successor of the Grantee to any rights under this franchise, for transmitting and distributing gas within the limits of the City, as said limits now or may hereafter exist, and the acceptance of the franchise hereby granted shall operate as an abandonment of all such franchises within the limits of this City, as such limits now or may hereafter exist, in lieu of which this franchise is granted. 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. The Grantee of ths.franchise shall construct., install and maintain all pipes and appurtenances in accordance with and in con- formity with all of the ordinances, rules and regulations heretofore, or hereafter adopted by the legislative body of this City in the exercise of its police powers and not in conflict with the paramount authority of the State of California, and as to State highways, sub- ject to the provisions of general laws relating to the location and maintenance of such facilities. AG:ktm -5- 6/9/78 SECTION 9. ADMINISTRATIVE PRACTICES. The Engineer shall have power to give the Grantee such directions for the location of any pipes and appurtenances as may be reasonably necessary to avoid sewers, water pipes, conduits or other structures lawfully in or under the streets; and before the work of constructing any pipes and appurtenances is commenced, the Grantee shall file with said Engineer plans showing the location thereof, which shall be subject to the approval of said Engineer such approval not to be unreasonably withheld); and all such con- struction shall be subject to the inspection of said Engineer and done to his reasonable satisfaction. All street coverings or openings of traps, vaults, and manholes shall at all times be kept flush with the surface of the streets; provided, however, that vents for underground traps, vaults and manholes may extend above the surface of the streets when said vents are located in parkways, between the curb and the property line. Where it is necessary to lay any underground pipes through, under or across any portion of a paved or macadamized street, the same, where practicable and economically reasonable shall be done by a tunnel or bore, so as not to disturb the foundation of such paved or macadamized street; and in the event that the same cannot be done, such work shall be done under a permit to be granted by the Engineer upon application therefor. SECTION 10. CITY RESERVED POWERS. a) City reserves the right for itself to lay, construct, erect, install, use, operate, repair, replace, remove, relocate, AG:ktm -6- 6/9/78 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 necessary exercise of the aforementioned reserved rights is made necessary in order to accommodate a municipal government purpose and conflicts with any underground pipes and appurtenances of Grantee constructed, maintained and used pursuant to the provisions of the franchise granted hereby, whether previously constructed, maintained and used or not, Grantee shall, without cost or expense to City after written notice from the City Administrative Officer, or his designated representative, and request to do so, begin the physical field construction of changing the.location of all facil- ities or equipment so conflicting, which shall include the relocation of customer's facilities behind the meter in a public right -of -way if required by a grade or alignment change. 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, underground pipes 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 under- ground pipes and appurtenances thereto at the sole cost and expense of Grantee. SECTION 11. RESPONSIBILITY FOR DAMAGES. If any portion of any street shall be damaged by reason of defects in any of the pipes and appurtenances maintained or AG:ktm -7- 6/9/78 REV. 7/5/78 constructed under this grant, or by reason of any other cause arising from the operation or existence of any pipes and appurtenances con- structed or maintained under this grant, said Grantee shall, at its own cost and expense, immediately repair.any such damage and restore such street, or portion of street, to as good a condition as existed before such defect or other cause of damage occurred, such work to be done under the direction of the Engineer, and to his reasonable satisfaction. SECTION 12. FORFEITURE. a) If the Grantee of this franchise shall fail, neglect or refuse to comply with any of the provisions or conditions hereof, and shall not, within ten (10) days after written demand for com- pliance, begin the work of compliance, or after such beginning shall not prosecute the same with due diligence to completion, then the City, by its legislative body, may declare this franchise forfeited. b) The City may sue in its own name for the forfeiture of this franchise, in the event of noncompliance by the Grantee, its successors or assigns, with any of the conditions thereof. SECTION 13. ACQUISITION AND VALUATION. The franchise granted hereunder shall not in any way or to any extent impair or affect the right of the City to acquire the property of the grantee hereof either by purchase or through the exercise of of the right of eminent domain, and nothing herein con- tained shall be construed to contract away or to modify or to abridge, either for a term or in perpetuity, the City's right of eminent domain in respect to the Grantee or any public utility. Nor shall this AG:ktm -8- 6/9/78 franchise ever be given any value before any court or other public authority in any proceeding of any character in excess of the cost to the Grantee of the necessary publication and any other sum paid by it to the City therefor at the time of the acquisition thereof. SECTION 14. RELOCATION OF FACILITIES. The Grantee of this franchise shall 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 of any public street, way, alley or place, including the construction of any subway or viaduct by the City. SECTION 15. HOLD HARMLESS. The Grantee of this franchise shall indemnify and hold harmless the City and its officers from any and all liability for damages proximately resulting from any operations under this fran- chise; and be liable to the City for all damages proximately re- sulting from the failure of said Grantee well and faithfull to observe and perform each and every provision of this franchise and each and every provision of Division 3, Chapter 2 of the Public Utilities Code of the State of California. 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. AGsktm —9— 6/9/78 SECTION 17. WRITTEN ACCEPTANCE. The franchise granted hereunder shall not become effective until written acceptance thereof shall have been filed by the Grantee thereof with the City Clerk. When so filed, such acceptance shall constitute a continuing agreement of the Grantee that if and when the City shall thereafter annex or consolidate with, additional territory, any and all franchise rights and privileges owned by the Grantee therein shall likewise be deemed to be abandoned within the limits of such territory. 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 City in connection with the granting thereof, such pay- ment to be made within thirty (30) days after the City shall have furnished such Grantee with a written statement of such expenses. INTRODUCED AND PASSED TO PRINT by the Council of the City of San Luis Obispo at a regular meeting thereof held on the lst day of August , 1978, on motion of Councilman Settle , seconded by Councilman Jorgensen vote: and on the following roll call AG:ktm -10- 6/9/78 AYES: Councilmen Dunin, Jorgensen, Settle, Petterson and Mayor Schwartz NOES: None ABSENT: None ATTEST: C it e J.H. Fitzpatrick Approved as to form: WENDT, MITCHELL, SINSHEIMER, de la MOTTE & LILLEY City Attorney By Allen Grimes u Y Mayor Kenneth E. Schwartz Y Approved as to content: 4 City Administra 've Officer Director of Public Services AG: ktm -1;1- 6/9/78 ORDINANCE NO. 770 FINALLY PASSED this 15th day of August 19 78 , on motion of Councilman Jorgensen seconded by Councilman Settle on the following roll call vote: AYES: Councilmen Dunin, Jorgensen, Petterson, Settle and Mayor Schwartz NOES: None ABSENT: None ATTEST: J.H itzpatrick, CITY CLERK