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;
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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
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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
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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
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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.
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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,
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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
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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
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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.
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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
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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
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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