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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:
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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;
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(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.
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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
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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
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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
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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
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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.
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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
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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.
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(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.
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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.
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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 1nanc Ul
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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