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HomeMy WebLinkAboutORD NO 4760ORDINANCE NO. Y 4760 ORDINANCE GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY AND ITS SUCCESSORS AND ASSIGNS A FRANCHISE TO CONSTRUCT, MAINTAIN, AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS WITHIN THE CITY OF BAKERSFIELD FOR ANY AND ALL PURPOSES. BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1 The words or phrases below have the following definitions unless they are otherwise defined: A. "Grantee" means Southern California Gas Company and its lawful successors or assigns; B. "City" means the City of Bakersfield, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated, enlarged, or reincorporated form; C. "CPUC" means the California Public Utilities Commission; D. "Streets" means the public streets, ways, alleys, and places within City, as they now or may hereafter exist including, but not limited to, state highways, now or hereafter established within City, and freeways, now or hereafter owned by City; E. "Gas" means natural gas meeting the specifications required by the CPUC or other state or federal agency having jurisdiction over Grantee; F. "Franchise" means and includes any authorization granted hereunder in terms of a non - exclusive franchise, privilege, permit, license, or otherwise to Lay and Use Pipes and Appurtenances for transmitting and distributing Gas for all purposes under, along, across, or upon the Streets and will include and be in lieu of any existing or future City requirement to obtain a business license for the privilege of transacting and carrying on its business within the City; ORDINANCE GRANTING FRANCHISE TO SOUTHERN CALIFORNIA GAS COMPANY S: \COUNCIL \Ords \13 -14 \So Cal Gas. Franc hise. Ord. Docx October 4, 2013 AK, 9q s ?' m � r— U -- Page 1 of 9 Pages -- ORIGINAL G. "Gross Annual Receipts" means all gross operating receipts received by Grantee from the sale of Gas to Grantee's customers within its service territory less uncollectible amounts and less any refunds or rebates made by Grantee to its customers pursuant to CPUC orders or decisions; H. "Pipes and Appurtenances" means pipes, pipelines, mains, services, traps, vents, vaults, manholes, meters, gauges, regulators, valves, conduits, appliances, attachments, appurtenances, wired and wireless communication equipment, and other property located or to be located in, upon, along, across, under, or over the Streets and used or useful in the transmitting and /or distributing of Gas; I. "Lay and Use" means to lay, construct, erect, install, operate, maintain, use, repair, or replace; and J. "Public Property" means Streets, rights -of -way, and improvements including, but not limited to, all public improvements associated with the Streets that may be affected by Grantee's activities including, but not limited to, landscaping, irrigation systems, street lights, street furniture, sidewalks, sewer systems, storm drain collectors, water mains, traffic signals, traffic stops, and bus shelters. SECTION 2 City hereby grants the Franchise to Grantee subject to the terms, conditions, reservations, exceptions, and provisions set forth in City's Charter and California Public Utilities Code Sections 6201, et. seq., commonly known and designated as the "Franchise Act of 1937." SECTION 3 Subject to the terms of this Ordinance, the Franchise will be indeterminate and will continue in full force until, with the consent of the CPUC, or other lawful authority having jurisdiction, the following occurs: (1) Grantee voluntarily surrenders or abandons it; (2) City purchases or, under eminent domain, condemns and acquires the Pipe and Appurtenances used or useful in the exercise of Grantee's Franchise rights that are situated within City's territorial limits; or (3) Grantee forfeits the Franchise by failing to comply with its terms. SECTION 4 A. Franchise Fee. During the life of the Franchise, Grantee must pay to City the greater of (1) two percent of the Gross Annual Receipts received by Grantee from the use, operation, or possession of the Franchise or (2) one ORDINANCE GRANTING FRANCHISE TO SOUTHERN CALIFORNIA GAS COMPANY S: \COUNCIL \Ords \13 -14 \So Cal Gas. Franchise. Ord. Docx October 4, 2013 -- Page 2 of 9 Pages -- o`` 6AKF,9� 1 � i-- m v '- 0 ORIGINAL. percent of the Gross Annual Receipts derived by Grantee from the sale of Gas within City's limits under the Franchise ( "Annual Payment "). If the compensation formula to be paid to a general law city as currently set forth in Public Utilities Code section 6231(c) is modified, which, if applied to the formula in this section would result in a higher annual fee to be imposed on Grantee than provided for in this section, then Grantee must pay City the higher annual fee as of the effective date of the act modifying the compensation formula. B. Surcharges. 1. City and Grantee have negotiated the following consideration terms as compensation for Grantee's use of the Streets, contingent on CPUC approval as outlined in Section 5 below: Grantee will pay to City one per cent of the Gross Annual Receipts derived by Grantee from the sale of Gas within City's limits under the Franchise ( "Recovery Portion "). Grantee will begin collecting the Recovery Portion as soon as is practicable following CPUC approval. The Recovery Portion will be applied to all Grantee's gas utility customers, including residential, commercial, industrial, government, and wholesale customers, except for those customers participating in Grantee's California Alternative Rates for Energy ( "CARE ") Program or successor low - income assistance program. 2. During the life of the Franchise, Grantee must pay to City all applicable Municipal Public Lands Use Surcharge payments due to City pursuant to California Public Utilities Code Section 6350 et. seq. SECTION 5 A. Prior to Grantee's payment to City of the Recovery Portion, Grantee must receive approval from the CPUC to collect the Recovery Portion in accordance with CPUC Decision 89 -05 -063, Guidelines for the Equitable Treatment of Revenue Producing Mechanisms Imposed by Local Government Entities on Public Utilities, 32 CPUC2d 60, May 29, 1989. B. The City will cooperate with Grantee in the preparation of any filings, data request responses, and other submittals required for review for the approval. C. If the Recovery Portion is not approved by CPUC, (1) the term of this Franchise set forth in Section 3 shall be fifty years from the effective date of this Ordinance; and (2) the payments required in Section 4 will remain due and owing to City for each annual period (or portion thereof) during which the Franchise remains in effect. ORDINANCE GRANTING FRANCHISE TO SOUTHERN CALIFORNIA GAS COMPANY S: \COUNCIL \Ords \13 -14 \So Cal Gas. Franc hise. Ord. Docx October 4, 2013 -- Page 3 of 9 Pages -- P, K, 9q > 'r � m V � ORIGINAL D. If the Recovery Portion is approved by CPUC, Grantee must implement customer collections of the Recovery Portion, as required in Section 4 above, as soon as possible following CPUC approval. E. If CPUC issues any modification or repeal of the Recovery Portion, or if CPUC issues any order or decision that conflicts with Grantee's collection of the Recovery Portion, or if any changes in law or ruling in accordance with law negates the imposition or collection of the Recovery Portion, then Grantee will reduce or eliminate collection of the Recovery Portion in an amount that corresponds to the change resulting from CPUC's orders, actions, or decisions, or resulting from the ruling or change in law. Grantee will make a corresponding reduction in the Recovery Portion paid to the City in each annual period thereafter. SECTION 6 If CPUC or any court of competent jurisdiction orders the return to Gas utility ratepayer(s) of any amount represented by the payments required by this Ordinance, which have been collected by Grantee and paid to City, or if the parties agree, as a result of a challenge and settlement thereof, that a refunding will occur, then City will be solely responsible for that payment. Grantee must assist and cooperate with City in processing any refunds. SECTION 7 Grantee must file with the City Clerk, within three months after the expiration of the calendar year following the date of the granting of the Franchise, and within three months after the expiration of each and every calendar year thereafter, a duly verified statement ( "Gross Annual Receipts Statement ") showing in detail the total Gross Annual Receipts received by Grantee during the preceding calendar year, or fractional calendar year, from the sale of Gas within City. Grantee must pay to City the payments required in this Ordinance within fifteen days after filing its Gross Annual Receipts Statement for that calendar year, or fractional calendar year. If Grantee fails to file a Gross Annual Receipts Statement or make the payments required by this Ordinance at the time and in the manner required, City may declare that Grantee forfeited the Franchise and all of its related rights. SECTION 8 If Grantee fails, neglects, or refuses to comply with any of the provisions or conditions prescribed in this Ordinance, and does not, within ten days after ORDINANCE GRANTING FRANCHISE TO SOUTHERN CALIFORNIA GAS COMPANY S: \COUNCIL \Ords \13 -14 \So Cal Gas. Franc hise. Ord. Docx October 4, 2013 -- Page 4 of 9 Pages -- gRK, 9q V O ORIGINAL written demand for compliance, begin the work of compliance, or after such beginning does not prosecute the same with due diligence to completion, then City may declare that Grantee forfeited the Franchise and all of its related rights. City may sue in its own name for the forfeiture of this Franchise in the event of non - compliance by Grantee with any of the conditions hereof. SECTION 9 City has the right, at reasonable times and upon reasonable notice, to have the City Clerk, City- designated accountant, or other appropriately qualified agent examine all of Grantee's books, vouchers, records, and other papers pertinent to the exercise of the Franchise. If Grantee refuses to produce its books, vouchers, records, or other papers pertinent to the exercise of the Franchise at any reasonable time for examination by City as required by this Section, City may declare that Grantee forfeited the Franchise and all of its related rights. SECTION 10 The Franchise does not in any way or to any extent impair City's right to acquire Grantee's property, either by purchase or through the exercise of the right of eminent domain, and nothing in this Ordinance may be construed to contract away, modify, or abridge City's right to exercise the power of eminent domain. The Franchise must never be given any value before any Court or other public authority in any proceeding of any character in excess of the cost to Grantee of the necessary publication. SECTION 11 By acceptance of the Franchise, Grantee covenants and agrees to perform and be bound by each and all of the terms and conditions imposed in this Ordinance and further agrees to: A. Comply with all lawful ordinances, rules, and regulations adopted by the City Council now in place or hereafter adopted governing the construction, maintenance, and operation of its plants, works, or equipment. B. Pay City on demand the cost of all repairs to Public Property made necessary by any of Grantee's operations under the Franchise. C. Indemnify, defend, and hold harmless City and City's officers, agents, and employees against any and all liability, claims, actions, causes of action, or demands whatsoever against them, or any of them, beforeo��AKF9(p ORDINANCE GRANTING FRANCHISE TO SOUTHERN CALIFORNIA GAS COMPANY i m S: \COUNCIL \Ords \13 -14 \So Cal Gas. Fran chise. Ord. Docx v p October 4, 2013 ORIGINAL -- Page 5 of 9 Pages -- administrative or judicial tribunals of any kind whatsoever, arising out of, connected with, or caused by Grantee or Grantee's employees, agents, independent contractors, companies, or subcontractors in the performance of, or in any way arising from, the terms and provisions of this Ordinance and the Franchise whether or not caused in part by a party indemnified hereunder, except for City's sole active negligence or willful misconduct. Grantee must, on City's request, defend any suit asserting a claim covered by this indemnity. D. Remove and relocate in a timely manner and without expense to City, any facilities or equipment installed, used, and maintained under the Franchise if and when made necessary by any lawful change of grade, alignment, or width of any Streets by City or its agents including, but not limited to, the construction of any subway or viaduct, public sewer system, canal, sump, or fiber optic or other public communication transmission lines or devices. Grantee's obligation to remove or relocate its facilities or equipment without expense to City also includes relocations made necessary by all public improvements described in the preceding sentence that were previously within the ownership or control of the State of California or the County of Kern but which have subsequently been accepted and maintained by City. SECTION 12 Compliance with Local Laws. A. Grantee must construct, maintain, and use all Pipes and Appurtenances in a good and workmanlike manner and in compliance with all lawful and applicable Federal, State, and City laws, ordinances, resolutions, regulations, policies, rules, orders, plans, and specifications now in effect or as amended or added from time to time during the term of the Franchise, except to the extent State or Federal law or regulation preempts those City laws or regulations. B. Upon constructing, maintaining, or using any Pipes and Appurtenances, or any part thereof, Grantee must expeditiously, at its own cost and expense, restore to applicable, lawful City standards all Public Property disturbed or altered as a result of Grantee's actions to a condition that is the same or substantially similar to their condition immediately prior to the start of that construction or maintenance. Grantee must comply with City's terms and conditions concerning the location within the public right of way of the proposed facilities, except to the extent State or Federal law or regulation preempts those terms and conditions. C. Grantee's activities and each restoration of Public Property under the Franchise must be performed in a good and workmanlike manner, and in ORDINANCE GRANTING FRANCHISE TO SOUTHERN CALIFORNIA GAS COMPANY S: \COUNCIL \Ords \13 -14 \So Cal Gas. Franchise. Ord. Docx October 4, 2013 O��AKF9cP 1 � ►— m V p -- Page 6 of 9 Pages -- ORIGINAL. accordance with the lawful standard plans, specifications, orders, rules, and regulations of City and each of its applicable departments, and subject to all lawful fees and exactions, except to the extent State or Federal law or regulation preempts those plans, specifications, orders, rules, and regulations. SECTION 13 This Ordinance will become effective thirty days after its passage, subject to Section 15. SECTION 14 Grantee must reimburse City for all publication expenses incurred by City in connection with the granting of the Franchise within thirty days after City provides Grantee with a written statement of those expenses. SECTION 15 The Franchise will be in lieu of all other franchises, rights, or privileges owned by Grantee, or Grantee's successor to any right under the Franchise, for the rendering of utility service within City limits as such limits at any time exist. Grantee's acceptance of the Franchise operates as an abandonment of those franchises, rights, and privileges within City limits as such limits at any time exist, in lieu of which the Franchise is granted. The Franchise will not become effective until Grantee files written acceptance of the Franchise with the City Clerk; provided however that Grantee must accept the Franchise within thirty days after the adoption of this Ordinance by the City Council unless the timing for acceptance of the Franchise is otherwise extended by the City Council. When filed, Grantee's acceptance will constitute Grantee's continuing agreement that if and when City annexes property, or consolidates additional territory, into City limits, all other franchises, rights, and privileges owned by Grantee will be deemed to be abandoned within the limits of that annexation or consolidation. SECTION 16 Grantee may not transfer or assign the Franchise without prior written consent of the City Council evidenced by a duly adopted resolution approving the assignment or transfer and unless the transferee or assignees thereof covenant and agree to perform and be bound by each and all of the terms and conditions imposed in this Ordinance and by the City Charter. ORDINANCE GRANTING FRANCHISE TO SOUTHERN CALIFORNIA GAS COMPANY S: \COUNCIL \Ords \13 -14 \So Cal Gas. Franchise. Ord. Docx October 4, 2013 -- Page 7 of 9 Pages -- o``gNK4 s � r v o ORIGINAL SECTION 17 If Grantee ceases to carry on its operations under the Franchise for a period of sixty days, the City Council may, by resolution, declare the Franchise to be forfeited. The resolution may further provide, at the option of the City Council, that all works, installations, and equipment that have been placed in, on, or over the Streets will become City property and all right, title, and interest to those works, installations, and equipment will vest in City. ORDINANCE GRANTING FRANCHISE TO SOUTHERN CALIFORNIA GAS COMPANY S: \COUNCIL \Ords \13 -14 \So Cal Gas. Franchise. Ord. Docx October 4, 2013 b N . s V O -- Page 8 of 9 Pages -- ORIGINAL HEREBY CERTIFY that the foregoing Ordinance was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on NOV 2 0 1013 , by the following vote: AYES: NOES: ABSTAIN ABSENT: APPROVED: 20 COUNCILMEMBER I , WEIR, SMITH, SULLIVAN, COUNCILMEMBER COUNCILMEMBER COUNCILMEMBER OY1. V�" '�&" ROBERTA GAFFORD, CM City Clerk and Ex Officio of the Council of the City of Bakersfield NOV 2 0 2013 APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney By: OW-1114 ANDREW HEGLU Deputy City Attorney AH:dll ORDINANCE GRANTING FRANCHISE TO SOUTHERN CALIFORNIA GAS COMPANY S: \COUNCIL \Ords \13 -14 \So Cal Gas. Franchise. Ord. Docx October 4, 2013 -- Page 9 of 9 Pages -- o``0AKF9N � T p V r O ORIGINAL AFFIDAVIT OF POSTING DOCUMENTS STATE OF CALIFORNIA) ) ss. County of Kern ) ROBERTA GAFFORD, being duly sworn, deposes and says: That she is the duly appointed, acting and qualified City Clerk of the City of Bakersfield; and that on the 22nd day of November, 2013 she posted on the Bulletin Board at City Hall, a full, true and correct copy of the following: Ordinance No. 4760, passed by the Bakersfield City Council at a meeting held on the 20th day of November, 2013 and entitled: ORDINANCE GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY AND ITS SUCCESSORS AND ASSIGNS A FRANCHISE TO CONSTRUCT, MAINTAIN, AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS WITHIN THE CITY OF BAKERSFIELD FOR ANY AND ALL PURPOSES. ROBERTA GAFFORD City Clerk and Ex Officio of the Council of the City of Bakersfield By: C)0 14 DEPU City CI rk S: \D OC U M E N 11F O RM SVWO P.O RD.wpd O�gAKF � s U Q ORIGINAL_ Southern California Gas Company A Sempra Energy utirty° December 10, 2013 The Honorable City Council City of Bakersfield 1600 Truxtun Avenue Bakersfield, CA 93301 (_i_ii In compliance with the terms of Section 15 of Ordinance No. 4760 entitled "ORDINANCE GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY AND ITS SUCCESSORS AND ASSIGNS A FRANCHISE TO CONSTRUCT, MAINTAIN, AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS WITHIN THE CITY OF BAKERSFIELD FOR ANY AND ALL PURPOSES" said Ordinance having been adopted on the 201h day of November, 2013, Southern California Gas Company hereby accepts said grant of franchise and agrees to comply with the terms and conditions thereof. Yours respectively, Richard M. Morrow Vice President, Engineering & Operations Staff