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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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