Ord 48ORDIN~NCE NO. 48
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA
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 MAY HEREAFTER
EXIST WITHIN THE CITY OF POWAY
THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS:
Section 1: DEFINITIONS
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:
(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 Poway a municipal corporation
of the State of California, in its present incorporated form or in any
latter reorganized, consolidated, 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, services, traps, vents, vaults, manholes, 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 distributinq 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 482 of the current Uniform System of
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PAGE 2
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.
Section 3: TERM
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 abandoned 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 Grantee 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 throughout the period of negotiations.
Section 4: CONSIDERATION
The Grantee of said franchise shall during the term 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.
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PAGE 3
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 renegotiation of this amount of franchise fee at any time within the term of
this franchise. Pending such review and renegotiation the franchise fee payable
to the City shall at all times be the greater of the franchise fee provided
under this franchise or the franchise fee permitted by statute or the
appropriate regulatory authority.
Section 5: REPORTS, DATE OF PAYMENT TO CITY, AUDITS
(a)
On or before the 15th day of February 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)
On or before the 25th day of February, 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.
(c)
Thereafter, no later than the 25th day of the end of each Quarter (May,
August and November) of the City fiscal year during the term of this
franchise, Grantee shall pay to the said City Treasurer one-forth (I/4)
of the money herein required to be paid by Grantee to City upon the
basis of the data set forth in the statement required by Section 5(a)
hereof. By this method of payment, it is contemplated and understood
that Grantee is in effect paying the money herein required to be paid
by Grantee to City under this subsection on the basis of qross receipts
for the preceding calendar year and that an adjustment shall be made,
as more fully set forth in Section 5(d) hereof.
(d)
On or before the 25th day of February, Grantee shall pay to the said
City Treasurer, or receive as a refund from the City, as the case may
be, a sum of money equal to the difference between the sum of the
payments of money made in accordance with Section 5(c) hereof and the
annual payment of money herein required to be paid by Grantee to City
upon the basis of the data set forth in said statement.
(e)
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.
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PAGE 4
(f)
Ail 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 representative designated by the City, to
make such examination at any place other than within the County, then,
in that event, all increased 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.
(g)
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
Ail 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.
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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, 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 conflicting. 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 piDes 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 or 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.
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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 ~V 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, Grantee
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 forefeiture, shall be deemed to be cumulative.
Section 12: ACQUISTION 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
agreement 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.
Section 14: AUTHORITY
The authority for this franchise is the Franchise Act of 1937.
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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 Poway.
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 Poway News Chieftain within fifteen days
after its adoption.
Introduced and first read at a regular meetin~ of the City Council of the
City of Poway held the 17th day of November, 1981 and thereafter PASSED AND
ADOPTED at a regular meeting of said City Council held the 24 th day of November
1981 by the following roll call vote:
AYES: COUNCILMEMBERS~ Emery, Oravec, Shepardson, Tarzy, Rexrode
NOES: COUNCII~4EMBERS: None
ABSENT: COUNCILMEMBERS:. N~.
CITY CLERK
CERTIFICATE OF CITY CLERK
I, Marjorie K. Wahlsten, City Clerk of the City of Poway, California, do
hereby certify the foregoing to be a true and exact copy of Ordinance No. 48
duly passed and adopted by the City Council of said City on the date and by the
vote therein recited.
Marjorie K. Wahlsten, City Clerk