HomeMy WebLinkAboutROI NO 1608RESOLUTION OF INTENTION NO. ~ 6 ~ 8
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BAKERSFIELD ACKNOWLEDGING THE INTENTION TO
GRANT AN ELECTRIC FRANCHISE
WHEREAS, Pacific Gas and Electric Company, a California utility corporation,
has filed with the City Council of the City of Bakersfield an application requesting that a
franchise be granted to it of the character and for the purposes mentioned in the form of
notice hereinafter set forth; and
WHEREAS, in the opinion of said Council the public good requires that said
franchise be granted.
NOW, THEREFORE, BE IT RESOLVED that said City Council intends to grant
said franchise, that hearing of objections to the granting thereof will be held at the time
and place specified in the form of notices hereinafter set forth which the Clerk of said
City is hereby directed to publish at least once within fifteen days after the passage of
this resolution in The Bakersfield Californian, a newspaper of general circulation within
said City, and that said notice shall be in the following words and figures:
"NOTICE OF INTENTION TO GRANT FRANCHISE
NOTICE IS HEREBY GIVEN that Pacific Gas and Electric Company, a California
utility corporation, has filed its application with the Council of the City of Bakersfield
requesting said Council to grant it a franchise for an indeterminate term under the
Charter of the City of Bakersfield and the Franchise Act of 1937, to construct, install,
maintain and use poles, wires, conduit and appurtenances, including communication
circuits, in, along, across, upon and under the public streets and places within said City
for transmitting and distributing electricity to the public for any and all purposes.
If said franchise shall be granted to it, said Pacific Gas and Electric Company, its
successors and assigns, hereinafter designated grantee, shall during the life thereof pay
to said City two percent 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 of the gross annual receipts derived by
grantee from the sale of electricity within the limits of said City. Said percentage will be
paid annually after the expiration of the calendar year, or fractional calendar year,
following the date of the granting of the franchise applied for. In the event such
payment shall not be made, said franchise shall be forfeited.
If said franchise shall be granted to it, grantee, shall during the life thereof also
pay to said City an additional one percent of the gross annual receipts of said grantee
from all electric utility customers served by grantee within the boundaries of the City.
Collection of said additional one percent shall apply to all customers, excluding those
customers participating in grantee's California Alternative Rates for Energy (CARE)
Program or successor low-income assistance program. Grantee's collection and eAKF
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payment of said additional one percent is subject to grantee receiving approval from the
California Public Utilities Commission.
NOTICE IS HEREBY FURTHER GIVEN that any and all persons having any
objections to the granting of said franchise may appear before said Council at the
Council Chambers, City Halt, 1501 Truxtun Avenue, Bakersfield, California, at the hour
of 6:30 p.m., or as soon thereafter as the matter may be heard, on September 17,
2008; and
NOTICE IS HEREBY FURTHER GIVEN that at any time not later than the hour
so set for hearing objections any person interested may make written protest stating
objections against the granting of said franchise which protests must be signed by the
protestant and delivered to the City Clerk of the City of Bakersfield, 1501 Truxtun
Avenue, Bakersfield, CA 93301. The City Council shall at the time set for hearing said
objections proceed to hear and pass upon all protests so made."
For further particulars reference is hereby made to the proposed ordinance
attached hereto.
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1 HEREBY CERTIFY that the foregoing Resolution was passed and adopted by
the Council of the City of Bakersfield at a regular meeting thereof held on AUG 2 0 2008
by the following vote:
AYES: COUNCILMEMBER: C R
Q
SON
BENHAM
WEIR
COl7C
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,
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H, HANS
N, SUL
CIVAN, SCR ER
. COUNCILMEMBER: ~~~_
ABSTAIN: COUNCILMEMBER:
ABSENT: COUNCILMEMBER: .(TI'lU
PAMELA A. McCARTH MC
CITY CLERK and Ex O Icio Clerk of the
Council of the City of Bakersfield
APPROVED: AUG 2 0 2008
By
HARVEY ~ HALL
Mayor
APPROVED as to form:
VIRGINIA GENNARO
City Attorney
By:
ROBERT M. SHERF
Deputy City Attorney
RMS:Isc
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ORDINANCE NO.
ORDINANCE GRANTING TO PACIFIC GAS AND
ELECTRIC COMPANY, ITS SUCCESSORS AND
ASSIGNS, THE FRANCHISE TO USE, FOR
TRANSMITTING AND DISTRIBUTING ELECTRICITY
WITHIN THE CITY OF BAKERSFIELD FOR ANY AND ALL
PURPOSES OTHER THAN THOSE AUTHORIZED UNDER
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, ALL POLES, WIRES, CONDUITS AND
APPURTENANCES WHICH ARE NOW OR MAY
HEREAFTER BE LAWFULLY PLACED IN THE PUBLIC
STREETS, WAYS AND PLACES WITHIN SAID CITY, AND
TO CONSTRUCT AND USE IN SAID PUBLIC STREETS,
WAYS AND PLACES ALL POLES, WIRES, CONDUITS
AND APPURTENANCES INCLUDING COMMUNICATION
CIRCUITS, NECESSARY OR PROPER FOR SAID
PURPOSES.
BE IT ORDAINED by the Council of the City of Bakersfield as follows:
SECTION 1.
Whenever in this ordinance the words or 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 Pacific Gas and Electric Company, and its
lawful successors or assigns;
(b) The word "City" shall mean 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) 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 now or hereafter owned by 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, attachments, appurtenances 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 the transmitting and/or distributing of electricity;
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(e) The phrase "construct and use" shall mean to construct, erect, install, lay,
operate, maintain, use, repair or replace;
(f) The phrase "constitutional franchise" shall mean the right acquired
through acceptance by said 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.
The non-exclusive franchise (a) to use, for transmitting and distributing electricity
within the City of Bakersfield for any and all purposes other than those authorized under
said constitutional franchise, all poles, wires, conduits and appurtenances which now
are or may hereafter be lawfully placed in the streets within said City, and (b) to
construct and use in said streets all poles, wires, conduits and appurtenances, including
communication circuits, necessary or proper for said purposes, is hereby granted to
Pacific Gas and Electric Company upon the terms, conditions, reservations, exceptions
and provisions set forth in the Charter of the City of Bakersfield, and in that certain act
of the Legislature of the State of California, commonly known and designated as the
"Franchise Act of 1937."
SECTION 3.
The franchise hereby granted shall be indeterminate and shall continue in full
force until, with the consent of the Public Utilities Commission of the State of California,
or other lawful authority having jurisdiction in the premises, it shall be voluntarily
surrendered or abandoned by the Grantee, or until the City, by agreement, shall
purchase, or, under eminent domain, shall condemn and acquire all property actually
used or useful in the exercise of such franchise and situate within the territorial limits of
the City, or until it shall be forfeited for non-compliance with its terms by the Grantee.
SECTION 4.
The grantee of said franchise shall during the life of such franchise pay to said
City a sum annually which shall be equivalent to two per cent 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 a sum which shall
be equivalent to one per cent of the gross annual receipts derived by grantee from the
sale of electricity within the limits of such City under said franchise and said
constitutional franchise.
In the event that the compensation formula to be paid to a general law city as
currently set forth in Public Utilities Code section 6231(c) is modified by an act of the
Legislature of the State of California, which if applied to the formula set forth in this
Section 4 would result in a higher annual fee to be imposed on grantee than set forth in
this Section 4, then grantee shall pay the City such higher annual fee as of the effective
date of the such act.
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SECTION 5.
This franchise is granted upon the express condition of, and in exchange for, the
commitment by grantee that grantee, as consideration therefore and as compensation
for use of the streets of the City, as herein authorized and permitted shall pay to the City
during the term (in addition to the franchise fees specified in Section 4) an additional
one per cent of the gross annual receipts of grantee (the "Recovery Portion") from all
electric utility customers served by grantee within the boundaries of the City. The
customer collection shall be applied equally to grantee's electric utility customers based
on the consumption or use of electricity, including residential, commercial, industrial,
government and wholesale customers, excluding those customers participating in
grantee's California Alternative Rates for Energy (CARE) Program or successor low-
income assistance program. The conditions precedent to the obligation of grantee
under this Section 5 to levy, collect and deliver to City the Recovery Portion shall be the
conditions set forth in Section 6 below.
SECTION 6.
California Public Utilities Commission Approval.
A. Prior to Grantee's payment to City of the Recovery Portion Grantee shall
receive approval from the California Public Utilities Commission (CPUC) to collect the
Recovery Portion (as described in Section 5 above) 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
(the "CPUC Recovery Guidelines").
B. The City shall cooperate with grantee in the preparation of any filings, data
request responses and other submittals required for review for such approval.
C. In the event that the Recovery Portion required is not approved by the
CPUC, (i) the term of this franchise set forth in Section 3 shall be fifty (50) years from
the effective date hereof; and (ii) the franchise fees set forth in Section 4 shall remain
due and owing to the City for each annual period (or portion thereof) during which the
franchise remains in effect.
D. If the Recovery Portion is approved by the CPUC, grantee shall implement
customer collections of the Recovery Portion as soon as possible following CPUC
approval.
E. In the event that any modification or repeal of the Recovery Portion is
issued by the CPUC, or in the event that the CPUC issues any order or decision that
conflicts with grantee's collection of the Recovery Portion, or in the event that any
changes in law or ruling in accordance with law negates the imposition or collection of
the Recovery Portion, then grantee shall reduce or eliminate collection of the Recovery
Portion in an amount that corresponds to the change resulting from the CPUC's orders,
actions, decisions, or as a result of any ruling or change in law. Grantee shall make a
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corresponding reduction in the Recovery Portion paid to the City as part of franchise fee
due in annual period thereafter.
SECTION 7.
In the event that the CPUC or any court of competent jurisdiction orders the
return to electric utility ratepayer(s) of any amount represented by the franchise
payments, which has been collected by grantee and paid to the City, or in the event the
parties agree as a result of a challenge and settlement thereof that a refunding will
occur, then the City shall be solely responsible for such payment. Grantee shall assist
and cooperate with City in processing any such refunds.
SECTION 8.
The grantee shall file with the Clerk of said City, within three months after the
expiration of the calendar year, or fractional calendar year, following the date of the
granting hereof, and within three months after the expiration of each and every calendar
year thereafter, a duly verified statement showing in detail the total gross receipts of
such grantee during the preceding calendar year, or such fractional calendar year, from
the sale of electricity within said City. Such grantee shall pay to said City within fifteen
days after the time for filing such statement, in lawful 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 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 of all rights of grantee hereunder. Such statement shall contain such further
information as may be required by the City Council concerning the character and
amount of business done under said franchise, and the amount of receipts and
expenses connected therewith, and also an itemized account of the money expended
under said franchise, for new construction, repairs and betterments during the year.
The City Council shall have the power to call for special report, at any time covering any
specific period.
SECTION 9.
If the grantee shall fail, neglect or refuse to comply with any of the provisions or
conditions prescribed in this ordinance, and shall not, within ten (10) days after written
demand for compliance, begin the work of compliance, or after such beginning shall not
prosecute the same with due diligence to completion, then the City of Bakersfield may,
by action of the City Council, declare this franchise forfeited. The City of Bakersfield
may sue in its own name for the forfeiture of this franchise in the event of
noncompliance by grantee with any of the conditions hereof.
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SECTION 10.
City shall have the right at all reasonable times to examine all books, vouchers,
records and other papers of grantee pertinent to the exercise of the franchise granted
hereunder. Refusal of grantee to produce such books, vouchers, records and other
papers at any reasonable time for examination by the City Clerk, Accountant, or other
agent appointed by the City Council shall work a forfeiture of the franchise granted
hereunder.
SECTION 11.
The franchise hereby granted shall not in any way or to any extent impair the
right of the City of Bakersfield to acquire the property of the grantee, either by purchase
or through the exercise of the right of eminent domain and nothing herein contained
shall be construed to contract away or to modify or to abridge the City's right to exercise
the power of eminent domain. The franchise granted hereby shall 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, and any other sum paid by
said grantee of said City therefor at the time of the acquisition thereof.
SECTION 12.
By acceptance of the franchise hereunder, or upon the renewal of any franchise,
the grantee covenants and agrees to perform and be bound by the 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 theretofore or
thereafter adopted by the City Council in the exercise of its police powers governing the
construction, maintenance and operation of its plants, works or equipment;
(b) Pay the City on demand the cost of all repairs to public property made
necessary by any of the operations of grantee under such franchise;
(c) That the City, its agents, servants and employees are to be free from
liability and claims from damages as the result of injury to any person or persons
(including grantee) or of injury to any person of any kind whatsoever or to whomsoever
belonging resulting from operations under such franchise so granted or renewed.
Grantee shall indemnify and save harmless the City from any and all liability arising out
of any such injury. Grantee shall, on the City's request, defend any suit asserting a
claim covered by this indemnity; and
(d) Grantee shall remove and relocate in a timely manner and 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, by City or its agents, including the construction of any
subway, viaduct, public sewer system, canal, sump, fibre optic or other public
communication transmission lines or devices. PG&E's obligation to remove or relocate
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facilities without expense to the City shall also include relocations made necessary by
all public improvements described in the previous sentence that were previously within
the ownership or control of the State or County but which have subsequently been
accepted and maintained by the City.
SECTION 13.
Compliance with Local Laws.
(a) Grantee shall construct, maintain and use all poles, wires, conduits and
appurtenances in a good and workmanlike manner and in compliance with all lawful
Federal, State and City laws, ordinances, resolutions, regulations, policies, rules,
orders, plans and specifications in force at the time this franchise becomes effective or
as may be amended or added from time to time during the term of this franchise, except
to the extent State or Federal law or regulation preempts any such City laws or
regulations;
(b) Upon constructing, maintaining or using any poles, wires, conduits and
appurtenances, or any part thereof, Grantee shall expeditiously at its own cost and
expense restore to applicable and lawful City standards all public property disturbed or
altered as a result of Grantee's actions. As used in this section, "public property" means
public streets, rights-of-way and improvements and includes, but is not limited to, all
public improvements associated with the public streets that may be affected by
Grantee's activities, such as landscaping, irrigation systems, street lights, street
furniture, sidewalks and bus shelters. Grantee shall 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 any such
terms and conditions; and
(c) Grantee's activities and each restoration of public property under this
franchise shall be performed in a good and workmanlike manner, and in 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 any such plans, specifications,
orders, rules and regulations.
SECTION 14.
This ordinance shall become effective thirty days after its passage, unless
suspended by a referendum petition filed as provided by law.
SECTION 15.
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 days after the City shall have furnished
such grantee with a written statement of such expenses.
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SECTION 16.
The franchise granted hereby shall be in lieu of all other franchises, rights or
privileges owned by grantee, or by any successor of grantee to any right under such
franchise, for the rendering of utility service within the limits of the City as they now or
hereafter exist, except any constitutional franchise. The acceptance of any franchise
hereunder, shall operate as an abandonment, with the exception of said constitutional
franchise, of all such franchises, rights and privileges within the limits of the City as such
limits shall at any time exist, in lieu of which such franchise shall be granted.
The franchise granted hereby shall not become effective until written acceptance
thereof shall have been filed by the grantee with the City Clerk; however, the grantee
shall accept the franchise hereby granted within thirty (30) days after the adoption of the
ordinance granting this franchise or any extension thereof granted by the City Council.
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,
all other franchises, rights and privileges owned by the grantee, except a constitutional
franchise, shall likewise be deemed to be abandoned within the limits of such territory.
SECTION 17.
The franchise may not be transferred or assigned by grantee without the 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 shall
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.
SECTION 18.
In the event that grantee or its assignee of this franchise shall cease to carry on
its operations under said franchise for a period of sixty (60) days the City Council may,
by resolution, declare such franchise to be forfeited. Such resolutions may further
provide, at the option of the City Council, that all works, installations, and equipment
which have been placed in, on or over the streets of the City shall become the property
of the City and all right, title, and interest to said works, installations and equipment shall
vest in the City.
SECTION 19.
The City Clerk shall cause this ordinance to be published once within fifteen (15)
days after its passage in The Bakersfield Californian, a newspaper of general circulation
published and circulated in said City.
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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 ,
by the following vote:
COUNCILMEMBER
COUNCILMEMBER
COUNCILMEMBER CARSON, BENHAM, WEIR, COUCH, HANSON, SULLIVAN, SCRIVNER
COUNCILMEMBER
AYES:
NOES:
ABSTAIN:
ABSENT:
PAMELA A. McCARTHY, CMC
City Clerk and Ex Officio of the
Council of the City of Bakersfield
APPROVED:
By:
HARVEY L. HALL
Mayor
APPROVED AS TO FORM:
VIRGINIA GENNARO
City Attorney
By:
RMS:Isc
ROBERT M. SHERFY
Deputy City Attorney
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AFFIDAVIT OF POSTING DOCUMENTS
STATE OF CALIFORNIA)
ss.
County of Kern )
PAMELA A. McCARTHY, 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 21ST day of AUGUST, 2008 she posted on the Bulletin Board at
City Hall, a full, true and correct copy of the following: Resolution of Intention No. 1608,
passed by the Bakersfield City Council at a meeting held on the 20th day of AUGUST,
2008 and entitled:
A RESOLUTION OF THE COUNCIL ACKNOWLEDGING THE
INTENTION TO GRANT AN ELECTRIC FRANCHISE.
PAMELA A. McCARTHY
City Clerk and Ex Officio of the
Council of the City of Bakersfield
DEPUTY City Clerk
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