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HomeMy WebLinkAboutORD NO 4545ORDINANCE NO. ~ 5 4 5 ORDINANCE GRANTING TO PACIFIC GAS AND ELECTRIC COMPANY, ITS SUCCESSORS AND ASSIGNS, THE FRANCHISE TO USE, FOR TRANSMITTING AND DISTRIBUTING GAS 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 GAS PIPES 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 PIPES AND APPURTENANCES 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 rney hereafter exist within City, including state highways, now or hereafter established within City, and freeways now or hereafter owned by City; D. The word "gas" shell mean natural or artificial gas, or a mixture of natural and artificial gas; E. The phrase "pipes and appurtenances" shall mean pipes, pipelines, mains, services, traps, vents, vaults, manholes, meters, gauges, regulators, valves, conduits, appliances, attachments, appurtenances and 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 distribOting of gas; F. The phrase 'lay and use" shall mean to lay, construct, erect, install, operate, maintain, use, repair or replace; S:I000NCIL10rds~08-09 Ords1PG&E.GasFranchise.DOC -- Page 1 of 8 Pages -- `~,, ~~~, ~. t, ., .,,, r , }}"~~,i s„ ~, G. 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 gas within the City of Bakersfield for any and all purposes other than those authorized under said constitutional franchise, all gas pipes and appurtenances which now are or may hereafter be lawfully placed in the streets within said City, and (b) to lay and use in said streets all pipes and appurtenances 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 fn3nd~ise; 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 gas 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(cj 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. S:\000NCIL10rds\08-09 Ords1PG8E.GesFrenchise.DOC -- Page 2 of 8 Pages -- ~,~ ~{ a; ~. ~-. ~i ~s~ ,; -. 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's from all gas utility- customers served by grantee within the boundaries of the City. The customer collection shall be applied equally to grantee's gas utility customers based on the consumption or use of gas, including residential, commerdal, industrial, government and wholesale customers, excluding those customers participating in grantee's California Alternative Rates for Energy (CARE) Program or sucxessor 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, Guialelfnes for the Equitable Treatment of Revenue Producing Mechanisms Imposed by Local Government Entitles 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 coMlicts with grantee's collection of the Recovery Portion, or in the event that any changes in law or ruling in acxordance 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 S:I000NCIUO-ds108-08 Orde1PG6E.GasFranchise.DOC -- Page 3 of 8 Pages -- ~~h.. C~` - ~.. c, corresponding reduction in the Recovery Porpon 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 gas 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 shell 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 gas 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 percenrtage 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 spedfied, 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 shell 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 non- compliance by grantee with any of the conditions hereof. SECTION 10. , City shall have the right at ail reasonable times to examine all books, vouchers, records and other papers of grentee pertinent to the exen;ise of the franchise granted S:~000NCILW-dsW8-09 Ords\PGBE.GasFrencl~se.DOC ~ ~ ~ ~~ yT -- Page 4 of 8 Pages -- ~_ ~.; ~~~ o 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 gn~nted 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 to 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, 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 shalt be free from liability and claims from damages as the result of injury to any pen3on 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 shell remove and relocate in a timely manner and without expense to the City, any facilities theretofore 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 or viaduct, public sewer system, canal, sump, fibre optic or other public communication transmission lines or devices. PG&E's obligation to remove or relocate 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 ownen3hip or control of the State or County but which have subsequently been accepted and maintained by the City. S:~000NCIUDMs109-09 Ords\PG&E.GasFranchise.DOC -- Page 5 of 8 Pages -- 1.., i I SECTION 13. Compliance with Local Laws. A. Grantee shall construct, maintain and use all pipes 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 Mme to time during the term of this franchise, except to the extent State or Federal law or regulation preempts arty such City laws or regulations; B. Upon constructlng, maintaining or using any pipes and appurtenances, or any part thereof, Grantee shall expeditiously at its own cost and expense restore to applicable and lawful City standanis 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, ail 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 end bus shelters. Grantee shell 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 tem-s and conditions; and C. Grantee's actvities 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 pedtion filed as provided bylaw. SECTION 15. The grantee of said franchise shall pay to ~e City a sum of money suffiaent to reimburse it for all publication expenses incurred by it in connection with the granting thereof; such payment to be made within thinly days after the City shall have furnished such grantee with a written statement of such expenses. 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 constitudonai franchise. The acceptance of any franchise hereunder, shall operate as an abandonment, with the exception of said constitutional S:~000NCI110rc1s10B-OB OtdsWGd~E.GesFrancMse.DOC -- Page 6 of 8 Pages -- ,,~ -. K . ~,j u', -, F'= ~- ~_:: _. franchise, of ali 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 Councii.~ 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 cant' 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 Catifomian, a newspaper of general circulation published and circulated in said City. S:I000NCIL\Ords\08-09 Ords1PG8E.GasFranchise.DOC -- Page 7 of 8 Pages -- <an~~,~ '::~ f- ~,r~ ' I 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 0 5 2008 , by the following vote: COUNCILMEMBER CAR~N, BENHAM WEIR,~~,AHeH, HANSON SULL AN, SCRIVNER COUNCILMEI~ER h~'v~- ABSTAIN: COUNCILMEMBER ~~° -- ABSENT: COUNCILMEMBER (~ ~ ~ ~ ~ti PAMELA A. McCARTH MC City Clerk and Ex Officio of the Council of the City of Bakersfield APPROVED: NOV 0 5 HARVEY L. HALL Mayor APPROVED AS TO FORM: VIRGINIA GENNARO City Attomey By: ~`~ ROBERT M. SHERFY Deputy City Attomey RMS:Isc S:\000NCILWrds\08-09 Ords\PGBE.GesFrarrchise.DOC -- Page 8 of 8 Pages -- `` d ~ ii ,,~-, =~ <> Ors~Er:±;~ . 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 6th _~ day of November , 2008 she posted on the Bulletin Board at City Hall, a full, true and correct copy of the following: Ordinance No. 4544 ,passed by the Bakersfield City Council at a meeting held on the 5th day of November, 2008 and entitled: AN ORDINANCE GRANTING TO PACIFIC GAS AND ELECTRIC COMPANY, ITS SUCCESSORS AND ASSIGNS, THE FRANCHISE TO USE, FOR TRANSMITTING AND DISTRIBUTING ELECTRICITY WITHIN THE CITY 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 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 CONSTRUCTION AND USE IN SAID PUBLIC STREETS, WAYS AND PLACES ALL POLES, WIRES, CONDUITS AND APPURTENANCES INCLUDING COMMUNICATION CIRCUITS, NECESSARY OR PROPER FOR SAID PURPOSES. PAMELA A. McCARTHY City Clerk and Ex Officio of the Council of the City of Bakersfield -"^~~_ DEPUTY City Clerk S:\DOC U M ENT\FOR MSWOP.ORD.wpd o~` r ~- r ~,~ C G~IGiN,~I