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HomeMy WebLinkAboutCC ORD 1981-1737 Gas franchise (Special)ORDINANCE NO. 1737 ORDINANCE GRANTING TO SAN DIEGO GAS &ELECTRIC COMPANY, ITS SUCCESSORS AND ASSIGNS, THE FRANCHISE TO CONSTRUCT, MAINTAIN AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER., ALONG, ACROSS OR UPON THE PUBLIC STREETS AND PLACES AS THE SAME NOW OR MAYHEREAFTER EXIST WITHIN THE CITY OF NATIONAL CITY BE IT ORDAINED, by the Council of the City of National City as follows: Section 1. DEFINITIONS. Whenever in this ordinance the words or phrases here- inafter 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 San Diego Gas & Electric Company, its lawful: successors and assigns; (b) The word "City" shall mean the City of National City a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, don- solidated, enlarged or reincorporated form; (c) The word "streets" shall mean the public freeways, highways, streets, ways, alleys and places as the same now or may hereafter exist within the City; (d) The word "gas shall mean natural or artificial gas or a mixture of natural and artificial gas; (e) The phrase "pipes and appurtenances" shall mean pipes, pipelines, mains, ser,-ices, traps, vents, vaults, man- holes, meters, gauges, regulators, valves, conduits, appliances, attachments, appurtenances and, without limitation to the foregoing, and other property located in, upon, along, across, under or over the streets of the City and used or useful in transmitting or distributing gas, sometimes otherwise referred to as "facilities"; (f) The phrase "construct, maintain and use" shall mean to construct, erect, install, operate, maintain, use, repair, relocate or replace pipes and appurtenances thereto in, upon, along, across, under or over the streets of the City; (g) The phrase "gross receipts" shall mean all gross operating revenues received by Grantee from the sale of gas to Grantee's customers with points of service within the corporate limits of the City (including, but -not limited to, sales to military reservations with points of service within the City's corporate limits) which are credited in Account Numbers 480, 481 and 'th2 of the current Uniform System of Accounts of the Federal Power Commission as adopted by the California Public Utilities Commission, or similar superseding accounts, less uncollectible amounts and less any refunds or rebates made by Grantee to such customers pursuant to orders or decisions of the California Public Utilities Commission. Section 2. PURPOSE. The franchise to install, maintain and use in the streets of said City all pipes and appurtenances for transmitting and distributing gas to the public for any and all purposes within said City is hereby granted to San Diego Gas & Electric Company, its successors and assigns. buctlon 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 the 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 situated in the territorial limits of the State, municipal or public corporation purchasing or condemning such property, or until said franchise shall be forfeited for non-compliance with its terms by the grantee. In the event, during the life of this franchise, the electors of City adopt a Freeholders Charter governing said City, then the. City may, by giving notice to the Grantee, open negotiations with Gradtee to modify the franchise fee provided for in Section 4 of this agreement. If the City and Grantee fail to agree on a new franchise fee within one year after beginning said negotiations, this franchise shall expire; provided, however, that all of the terms of this agreement, including the franchise fee as found in Section 4 shall remain in effect through- out the period of negotiations. Section 4. CONSIDERATION. The Grantee of said franchise shall during the terra thereof pay to said City -two percent (2%) of the gross annual receipts of said Grantee arising from the use, operation or possession of said franchise; provided, however, that such payment shall in no event be less than one percent (1%) of the gross annual receipts of Grantee derived from the sale of gas within the limits of said City. It is understood that any administrative, legislative or judicial modification of said franchise fee or the basis of calculating said fee pursuant to Public Utilities Code, Article 2, Section 6231(c) shall be cause for review and renegotia- tion of this amount of franchise fee at any time within the term of this franchise. Section 5. REPORTS, DATES OF PAYMENT TO CITY, AUDITS. (a) On or before the 31st.day of March of each calendar year during the term of this franchise and forty-five (45) days after the expiration of the term of this franchise, Grantee shall file with the City Clerk of City, the original, and with the Auditor of City, one copy of a statement showing the gross receipts during the preceding calendar year or fractional calendar year. (b) Within fifteen days after the time of filing such statement, Grantee shall pay to the City Treasurer the money herein required to be paid by Grantee to City upon the basis of the data set forth in said statement. Any neglect, omission or refusal by said 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 all rights of grantee hereunder. (c) The City Treasurer, or any qualified person designated by the City, at any reasonable time during business hours, may make examination at Grantee's office or offices, of its books and records, germane to and for the purpose of verifying the data set forth in the statement required by Section 5(a) hereof. (d) All books and records subject to examination by City Treasurer, or qualified person designated by City, shall be kept within the County of San Diego, or in such other places as the reasonable convenience of Grantee may require; and in the event that it becomes necessary for said City Treasurer, or any repre- sentative designated by the City to make such examination at any 'place other than within the County, then, in that event, all in- creased costs and expenses to City necessary or incident to such examination and resulting from such books and records not being available within the County, shall be paid City by Grantee on demand. (e) In the event Grantee fails to make the payments for this franchise on or before the dates due as hereinafter provided, Grantee shall pay as additional consideration both of the following amounts: (1) A sum of money equal to two percent (2%) of the amount due. This amount is required in order to defray those additional expenses and costs incurred by City by reason of the delinquent payment including, but not limited to, the cost of administering, accounting and collecting said delinquent payment and the cost to City of postponing services and projects necessitated by the delay in receiving revenue. (2) A sum of money equal to one percent (1%) of the amount due per month as interest and for loss of use of the money due. • Section 6. 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 hereafter adopted or prescribed, and such rules or- regulations as are promulgated under State law, or orders of the Public Utilities Commission or other governmental authority having jurisdiction in the premises. Section 7. ADMINISTRATIVE PRACTICES. Grantee is herewith charged with the responsibility of cooperating with City in preparing a manual of administrative 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, commencing 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 prepare, review and update such administrative 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 legislative action. Following 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 8. CITY RESERVED POWERS. (a) City reserves the right for itself to lay, construct, erect, install, use, operate, repair, replace, remove, :....a 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 relocate, remove, vacate,replace, realign, or change the grade of the streets themselves. If the necessary exercise of the aforementioned reserved rights conflicts with any 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 within ninety (90) days after written notice from the City Manager, or his', designated representative, and request so to do, begin the physical field construction of changing the location of all facilities or equipment so con- flicting. 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 pipes and appurtenances shall be subject at all times to the right of the City, in the exercise of its police power, to require the removal or relocation, of said pipes and appurtenances thereto at the sole cost and expense of Grantee. Section 9. 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 expenditures 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 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 resulting from the exercise 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. Section 10. 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 specifications if the same can be done without undue inconvenience to the public use of the streets. Section 11. FORFEITURE. This franchise is granted upon each and every condition herein contained, and shall ever 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 Manager 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,NGrantee 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 exclusive 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 12. ACQUISITION AND VALUATION. Nothing in this ordinance or in the franchise granted hereby shall be construed as in any way impairing City's rights to acquire property of Grantee through the exercise of City's power of eminent domain or through voluntary agree- ment between City and Grantee. Section 13. PUBLICATION EXPENSE. Grantee of said franchise shall pay to 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 City shall have furnished Grantee with a written statement of such expenses. 1937. Section 14. AUTHORITY. The authority for this franchise is the Franchise Act of Section 15. NO TRANSFER WITHOUT CONSENT. Grantee shall not sell, transfer or assign this franchise or the rights and privileges granted thereby without the consent of the City Council of the City of National City. Section 16. EFFECTIVE DATE. This ordinance shall take effect and be in force on the thirty-first day from and after its passage. Section 17. The City Clerk shall certify to the adoption of this ordinance and cause it to be published at least once in the within fifteen days after its adoption. PASSED AND ADOPTED THIS 7OtDAY of F eb ru? r ,, { 19-81. Passed and adopted by the Council of the City of National City, California, on February 10, 1981 by the following vote, to -wit: Ayes: Councilmen Nays: Councilmen Absent: Councilmen Abstain: Councilmen Cana cho, ter MoTwal Da 11- None None AUTHENTICATED BY: KILE MORGAN Mayor of the City of National City, California - Carrpbell City Clerk of ie City of National City, California By: Deputy I HEREBY CERTIFY that the foregoing ordinance was not finally adopted until seven calendar days had elapsed between the days of its introduction and the days of its final passage, to wit, on February 3., 1981 and February 10, 1981 on I FURTHER CERTIFY THAT said ordinance was read in full prior to its final passage or that the reading of said ordinance in full was dispensed with by a vote of not less than a majority of the members elected to the Council and that there was available for the consideration of each mem- ber of the Council and the public prior to the day of its passage a written or printed copy of said ordinance. I FURTHER CERTIFY that the above and foregoing is a full, true and cor- rect copy of ORDINANCE NO. of the City of National City, passed and adopted by the Council of said City on February 10., /991 (Seal) ne Camphell City Clerk of the City of National City, California By: Deputy