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HomeMy WebLinkAbout10-City Administrator CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Date: July 15, 2003 OR\G\NAL Subject: Public hearing - An ordinance of the City of San Bernardino granting to Southern California Gas Company, a corporation, its successors and assigns, the right, privilege and franchise to lay and use pipes and appurtenances for transmitting and distributing gas for any and all purposes under, along, across or upon the public streets, ways, alleys and places, as the same now or may hereafter exist, within said municipality From: Fred Wilson, City Administrator Dept: City Administrator's Office Synopsis of Previous Council Action: December 12, 2002 - Council adopts Ordinance MC 1135 - An ordinance of the City of San Bernardino amending sections of Municipal Code Chapter 14.04 regarding granting of utility franchises January 27, 2003 - Council adopts Resolution 2003-37 granting a revocable license to Ihe Southern California Gas Company for its operations in Ihe city. May 5, 2003 - Council adopts Resolution 2003 - 100 authorizing Amendment NO.1 to the revocable license of the Southern California Gas Company and extending the term to September 30, 2003 June 16, 2003 - Council adopts Resolution 2003 -125 stating the City's intention to grant a franchise to the Southern California Gas Company Recommended motion: Close the public hearing, and that said ordinance be laid over for final Contact person: Lori Sassoon Phone: 384-5122 Supporting data attached: Staff report, ordinance, other Ward: All FUNDING REQUIREMENTS: Amount: No cost to the Cily; additional annual revenue of $140,000 - 400,000 to the General Fund Source: (Accl. No.) (Accl. Description) Finance: Council Notes: Agenda /f10 f/i/D3 Kz-D ~ I)'IC.. \ \ .tt'1 STAFF REPORT Subiect: An ordinance of the City of San Bernardino granting to Southern California Gas Company, a corporation, its successors and assigns, the right, privilege and franchise to lay and use pipes and appurtenances for transmitting and distributing gas for any and all purposes under, along, across or upon the public streets, ways, alleys and places, as the same now or may hereafter exist, within said municipality - FIRST READING Backl!:round: In the Spring of 200 I, the City received notification from the Gas Company that the current franchise would expire in January 2003. The franchise agreement was last adopted in 1953 and had a term of fifty (50) years. Staff began meetings with Gas Company representatives in June 2002, and then began working to identify issues and topics for consideration in the new franchise. The City contracted with attorney Don Maynor, who is experienced in the negotiation of utility franchises, to advise us through this process. In the fall of 2002, it became apparent that franchise negotiations and the Council actions needed to adopt the new franchise could not be completed prior to the expiration of January 30, 2003. In order to provide for the Gas Company's continued operations in the interim, Section 14.04 of the Municipal Code was amended by the Council on December 12, 2002. The new ordinance language provided for the issuance of a revocable license that will be given to the Gas Company until the franchise is granted. Franchise payments under the revocable license would be made pursuant to the terms that will be agreed upon in the new franchise. On January 21, 2003, the Mayor and Council adopted Resolution 2003-37 authorizing the Mayor to sign a revocable license with Southern California Gas for its operations commencing February 1, 2003. Since the license was originally effective for 120 days, it would have expired on May 31, 2003. On May 5, the Mayor and Council adopted a resolution approving an extension of the revocable license for an additional 120 day period beginning June I, 2003, in order to allow sufficient time for the franchise process to be completed. Franchise negotiations have now been completed, and staff is recommending the granting of a new franchise to Southern California Gas. The process of granting the franchise will require a series of actions by the Council. The following outlines those steps and the anticipated dates for consideration: Action # I (June 16): Adopt resolution of intention to grant a franchise; set public hearing for not less than 20 days nor more than 60 days after passage of the resolution. Action #2 (July 21): Hold public hearing; first reading of the ordinance granting the franchise. Action #3 (August 4): Second reading of the ordinance granting the franchise. Action #4 (date TBD): Council acknowledges receipt of the Gas Company's acceptance letter, agreeing to the terms and conditions of the Ordinance. Terms of New Franchise/Other Issues: Attached is a draft of the proposed franchise agreement. The following is a summary of the key franchise terms: . 20 year term - In its franchise application, the Gas Company had requested a 25 year term. The company has now agreed to staffs recommendation of a 20 year term. The 25 year franchise is the common length in other cities. However, given the changing nature of the utility industry, the shorter term is more desirable for the City. . New 2% franchise fee formula - The franchise fee will now be calculated on the basis of 2% of gross receipts from the sale of gas within the city limits. The previous franchise fee calculation was based upon a complex formula know as the Broughton Act formula, which calculated the fee based on 2% of the gross receipts arising from the possession of the franchise. That computation was made based on the amount the number of miles of gas pipelines in the City as a ratio of Southern California Gas' total pipeline mileage. This change in the franchise fee formula will result in an increase in franchise fee revenue to the City. Many cities have a I % gross receipts formula; the 2% gross receipts formula is the highest franchise fee currently paid by Southern California Gas. More detail regarding the revenue increase is discussed in the Financial Impact section of this staff report. . Continued commitment to restoring utility cuts to City standards - The new franchise retains the City's right to require the Gas Company to repair street cuts to the satisfaction of the City Engineer. This language was included in the previous franchise, and has been maintained in the new franchise. Development Services staff is currently developing a new standard for the repair of street cuts. When the new standards are completed, the franchise will require compliance with those standard. The Gas Company has continually noted its willingness to work cooperatively with the City in ensuring that street cuts are properly repaired. In a separate issue but related to the exercise of the franchise, a separate agreement has been reached for an encroachment permit requested by the Gas Company for the installation of a new 24" pipeline. This 6.5 mile pipeline will be constructed through the City in order to supply natural gas to the Mountain View power plant in the City of Redlands. In recognition of the impacts of this construction on City streets. the Gas Company has agreed to the following: . The Gas Company will pay the City $71, I 00, which represents their estimated cost for repairing a 8-foot wide section of the streets that will be trenched for this project in areas that the City has a planned CIP project. This contribution will be used for this pavement rehabilitation project along Tippecanoe and Mill streets, which has been included in the draft Capital Improvement Program budget. When this project is brought to the Mayor and Council for approval, the appropriate budget amendment can be done to appropriate the $71,100 in revenue from the Gas Company. . For streets not within the City's pavement rehab projects, the Gas Company will perform a higher level of repair than is typically done. Rather than only repairing the trench, the Gas Company will repave the entire lane width (approximately 12 feet). This additional repair work has an estimated value of $172,200. . The Gas Company will pay the City $250,000 for the use of the last remaining cell in the Tippecanoe Bridge for its pipeline purposes. In light of the City's budget situation, staff will recommend that this revenue be used to help balance the FY 2003-04 budget. The attached memo from Mike Grubbs, Acting City Engineer, provides further detail regarding the Mountain View pipeline project, including a map of the proposed route and the City's proposed paving project. Financiallmvact: The franchise fee payment received by the City is made up of two (2) components: . Payment due pursuant to franchise ordinance - This is the franchise fee calculated using the formula found in the ordinance granting the franchise. . Payment of the Municipal Public Lands Use Surcharge - This surcharged was enacted when the natural gas industry was deregulated in California, in order to protect franchise fee revenues being collected by cities across the state. As California Public Utilities Code Section 6350 explains: 6350. There is hereby created a surcharge to be applied to natural gas and electricity transported over utility and nonutility transmission or distribution systems, or both, constructed under, along, across, or upon the public streets, ways, alleys, and places within a municipality, to replace, but not increase, franchise fees that would have been collected pursuant to this division if not for changes in the regulatory environment such as the "unbundling" of the gas industry. (emphasis added) The revenue provided by the municipal surcharge is greatly impacted by the volume and dollar value of the Gas Company's transportation of gas from non-regulated natural gas providers to power plants and other consumers. When electric power plants are purchasing large volumes of gas in order to meet high demands, the amount of revenue from the municipal surcharge increases. Therefore, the amount of revenue collected varies widely from year to year. In order to estimate the additional annual revenue for the City as a result of this franchise, the City's sales tax/franchise fee consultants analyzed actual revenues, then estimated what would have been received had the new formula been in place. According to that analysis, in an average calendar year such as 2002, the total gas franchise fee payment would have equaled approximately $525,000 - $550,000 under the new franchise. This is approximately 40% more than the $386,300 received under the terms of the former franchise. If the new franchise is granted, it will result in additional franchise revenue to the City. The City's consultants estimate that the additional revenue will range from $140,000 to $400,000 annually. The FY 2003-04 Preliminary Budget assumes a franchise payment of$656,300, which includes this additional revenue. This is an optimistic estimate, and the actual franchise revenue received will vary based on the variables described above. Recommendation: Close the public hearing, and that said ordinance be laid over for final adoption. CITY OF SAN BERNARDINO DEVELOPMENT SERVICES PUBLIC WORKS DIVISION FROM: Fred Wilson, City Administrator ~ Michael W. Grubbs, Acting City Enginee~ TO: SUBJECT: 24" High Pressure Gas Line in Mill Street, Arrowhead A venue and San Bernardino Avenue DATE: June 13, 2003 cc: James Funk, Director of Development Services; Lori Sassoon, Assistant to the City Administrator; Starting November 1, 2003, the Gas Company will be installing a 24" high pressure gas line across the City in Mill Street, Tippecanoe Avenue and San Bernardino. The 24" gas line will begin at a booster station in Rancho Cucamonga and pass through the Cities of Fontana, Rialto and San Bernardino in route to its destination at the Mountain View Power plant. The attached map illustrates the alignment of the proposed gas pipeline. Trenching in the streets for the pipeline will be approximately 8 feet wide and 6 feet deep. The excavated soil will be reprocessed and used as backfill for the trench. The Gas Company's contractor will restore the pavement over the area affected by the trenching. At the following locations which overlap with trenching for the gas pipeline, the City is proposing to rehabilitate the streets full width: I. Tippecanoe A venue from Central A venue to Mill Street. 2. Waterman Avenue at the intersection of Mill Street (330 feet x 80 feet). 3. Mill Street from "G" Street to "H" Street. 4. Mill Street from Mt. Vernon Avenue to Bridge over railroad/channel. 5. Mill Street from Rancho Avenue to Macy Street. At the above locations, the Gas Company will repair the trench 8 feet wide and flush with the existing surface. The City will follow later with a grind and overlay of the full roadway width of the above streets. The Gas Company is contributing $11,100 in cash which represents its cost had it been required to provide a finished overlay at each of the above listed locations. At locations not listed above, which are affected by the Gas Company's trenching, the Gas Company will overlay the entire width of the lanes affected by the trenching so as to provide a smooth finish within each of the traffic lanes. This proposed method of repair is enhanced over the standard trench repair method which would require the Gas Company to overlay only the 8 foot width of the trench. The "enhanced" trench repair method being required of the Gas Company is estimated to cost approximately $112,200 more than the cost of a standard trench repair. The Mountain View Power plant, located at the northeast corner of Mountain View Avenue and San Bernardino A venue in the City of Redlands, will be a 1056 megawatt natural gas-fired electric generating facility upon its completion in 2004. 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(J) 't "I~t \' +:' - , i ! i jlc\Jl!TAIl .VIEW AYC. ; # .1 . i ! if / / I / I 25l12-A-lll8 ~2-A-1811 '~._- . . 1 2 3 4 5 6 7 8 9 10 ORDINA~~f)f AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: SECTION ONE 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 11 12 13 14 15 16 17 18 19 and a municipal corporation of the State of California, in its present incorporated form or in 20 21 22 definitions (unless, in the given instance, the context wherein they are used shall clearly import a different meaning): (a) The word "Grantee" shall mean Southern California Gas Company, and its lawful successors or assigns; (b) The word "City" shall mean the City of San Bernardino, a Charter City any later reorganized, consolidated or reincorporated form; (c) The word "streets" shall mean the public streets, ways, alleys and places 23 as the same now or may hereafter exist within said City; 24 (d) 25 26 III . 27 28 The word "Engineer" shall mean the City Engineer; 1 . . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. (e) The word "franchise" shall mean and include any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to lay and use pipes and appurtenances for transmitting and distributing gas for any and all purposes under, along, across or upon the public streets, ways, alleys and places in the City as more fully set forth in Section Two (a) below; (I) The word "gas" shall mean natural or manufactured gas, or a mixture of natural and manufactured gas; (g) The phrase "pipes and appurtenances" shall mean pipe, pipeline, cable, main, service, trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit, appliance, attachment, adjunct communications line, appurtenance 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, or in carrying on the business of, transmitting and distributing gas; and (h) The phrase "lay and use" shall mean to lay construct, erect, install, operate, maintain, use, repair, replace, or remove. III III III 2 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. (i) The phrase "adjunct communications line" shall mean any facility such as coaxial cable, optical fiber, wire or other transmission lines or forms of transmission, and associated equipment and devices located in, upon, along, across, under or over the streets of the City, the sole function of which is to monitor or control the operation or safety of the gas system facilities via the distribution of video, audio, voice or data signals. An adjunct communications line shall not include any facility which distributes, through any means, to subscribers or persons other than grantee, the signal of one or more broadcast television or radio stations or other sources of video, audio, voice or data signals for a length in excess of 1,000 feet. SECTION TWO (a) That the right, privilege and franchise, subject to each and all of the 17 18 19 20 to lay and use pipes and appurtenances for transmitting and distributing gas for any and all 21 22 23 terms and conditions contained in this ordinance, and pursuant to Chapter 14.04 (Sections 14.04.010 - 14.04.030) of the San Bernardino Municipal Code, is hereby granted to Grantee purposes, under, along, across or upon the streets of the City. Any proposed telecommunication or other non-gas system uses must be approved by the City under a 24 separate franchise or other applicable City permit. 25 III 26 III . 27 28 3 . . 24 III 25 26 . 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. (b) The term or period of this franchise shall be twenty (20) years from and after the effective date hereof; that is to say, this 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 its possessor, or until the State of California 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 this franchise, and situated within the territorial limits of the State, municipal or public corporation purchasing or condemning such property, or until this franchise shall be forfeited for noncompliance with its 14 15 16 17 18 19 20 21 22 III 23 terms by the possessor thereof. (c) City shall have the right to terminate this Franchise by ordinance, at any time, should any of the following events occur: (i) the Grantee fails to comply with any material provision hereof or (ii) the City purchases (through its power of eminent domain or otherwise) all of the franchise property of Grantee. The Grantee shall be given thirty (30) days written notice prior to the beginning of any termination proceeding. III 4 . . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. SECTION THREE (a) The Grantee shall pay to the City at the times hereinafter specified, in lawful money of the United States, a total annual Franchise Fee, initially calculated as of January I, 2003, and paid in the following manner: (i) Gross Receipts from the Sale of Gas. A fee that is equal to the higher of: (A) Two percent (2%) of the gross annual receipts ofthe Grantee derived from the use, operation or possession of this franchise (Broughton Act Formula); or, (B) 2% of the gross annual receipts of the Grantee derived from the sale, transmission, or distribution of gas within the limits of the City under this franchise. (C) In the event the legislature amends the Franchise Act of 1937 (Public Utilities Code 96201-6302) or enacts any other state law which increases the franchise payment to cities to a level greater than that provided in this Section 3 (a), then the City shall have the option of prospectively employing the legislative formula, which shall apply for the remaining term of this agreement instead of the payments set forth in Section 3 (a) herein. If the City exercises said option, the legislative formula shall be prospectively applied hereto on the 5 . . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. later of the effective date of the legislation or January 1 of the calendar year in which the City exercised said option. (ii) The Municipal Public Lands Use Surcharge as provided by Public Utilities Code Sections 6354 and following, as may be amended from time to time. (b) The Franchise Fee (as described in subsections (a)(i) and (a)(ii) above) shall be paid in four installments, each installment being equal to the total gross receipts of the preceding calendar quarter employing the gross receipts formula, plus the amount of the In Lieu Fee for the preceding calendar quarter. Each installment shall be paid to the City on or prior to the twenty-fifth (25th) day of the second month following the respective quarter for which payment is made, except for the final quarterly payment for the year, which shall be paid on or prior to March 31st. For example, the installment for the first quarter of the year (January through March) shall be paid to the City on May 25th. Any overpayment shall be recovered by Grantee by setoff against future installments, or, if the franchise has been terminated, such overpayment, or the balance thereof, shall be payable by City to Grantee upon written demand. III III III III 6 . . 22 III 23 III 24 III 25 III 26 III . 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. SECTION FOUR (a) Any notices shall be in writing and be delivered by courier service or by certified mail, return receipt requested, or by telecopy with a confirming copy mailed (first class mail) by the next business day, to the other party at the address shown below or at such other address as the party may designate by written notice delivered in the manner provided for herein: City of San Bernardino 300 N. "D" Street San Bernardino, CA 92418 Telecopy: (909) 384-5158 Telephone: (909) 384-5002 Attn: City Clerk With a copy to City of San Bernardino 300 N. "D" Street San Bernardino, CA 92418 Telecopy: (909) 384-5138 Telephone: (909) 384-5122 19 20 1/1 21 Attn: City Administrator III 7 . . AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 III 20 III Southern California Gas Company 555 West Fifth Street Los Angeles, CA 90013-1011 P.O. Box 3249 Los Angeles, CA 90051-1249 Telecopy number: 213-244-8223 Confirmation number: 213-244-5701 Attn: Senior Vice President, Distribution Operations and a copy to: Southern California Gas Company 555 West Fifth Street Los Angeles, CA 90013-1011 P.O. Box 3249 Los Angeles, CA 90051-1249 Telecopy number: 213-244-4997 Confirmation number: 213-244-2528 Attn: Fees and Tax Manager, Regional Public Affairs 21 III 22 III 23 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. (b) This grant is made in lieu of all other franchises owned by the Grantee, or by any successor of the Grantee to any rights under this franchise, for transmitting and distributing gas within the limits of the City, as said limits now or may hereafter exist, and the acceptance of the franchise hereby granted shall operate as an abandonment of all such franchises within the limits of this City, as such limits now or may hereafter exist, in lieu of which this franchise is granted. This grant also supersedes that certain Resolution 2003-37, granting a revocable license to the Southern California Gas Company for its operations in the City of San Bernardino, adopted at the Mayor and Common Council meeting of January 21, 2003 and the Revocable License between the parties executed pursuant to said Resolution. (c) The Grantee of this franchise shall file with the Clerk of the City within three (3) months after the expiration of the calendar year, or fractional calendar year, following the date of the grant of this franchise, and within three (3) months after the expiration of each and every calendar year thereafter, a duly verified statement showing in detail the total gross receipts of the Grantee, its successors or assigns, during the preceding calendar year, or such fractional calendar year, from the sale of the utility service within the City for which this franchise is granted, and any other information needed to calculate the Franchise Fee in SECTION THREE. Any neglect, omission or refusal by said Grantee to file such verified statement, or to pay said Franchise Fee, at the times or in the manner hereinbefore provided, shall be grounds for the declaration of a forfeiture of this franchise and . 27 of all rights thereunder. 28 9 . . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. SECTION FIVE The franchise granted hereunder shall not become effective until written acceptance thereof shall have been filed by the Grantee thereof with the Clerk of the City. 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, any and all franchise rights and privileges owned by the Grantee therein shall likewise be deemed to be abandoned within the limits of the additional territory. SECTION SIX The franchise granted hereunder shall not in any way or to any extent impair or affect the right of the City to acquire the property ofthe Grantee hereof 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, either for a term or in perpetuity, the City's right of eminent domain in respect to the Grantee; nor shall this franchise ever be given any value before any court or other public authority in any proceeding of any character in excess ofthe cost to the Grantee of the necessary publication and any other sum paid by it to the City therefor at the time of the acquisition thereof. SECTION SEVEN The Grantee of this franchise shall: (a) construct, install and maintain all pipes and appurtenances in accordance with and in conformity with all of the ordinances, rules and regulations heretofore, 10 . . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. or hereafter adopted by the legislative body of this City in the exercise of its police powers and not in conflict with the paramount authority of the State of California, and, as to State highways, subject to the provisions of general laws relating to the location and maintenance of such facilities; (b) pay to the City, on demand, the cost of all repairs to public property made necessary by any operations of the Grantee under this franchise; (c) Grantee shall also be liable to the City for all damages proximately resulting from the failure of Grantee to observe and perform the provisions of this Franchise. This subsection (c) shall survive the termination or expiration of this Franchise and shall continue for so long as the franchise property of Grantee is located within the City. (d) Grantee shall indemnify, defend and hold harmless City and its officers from any and all liability for damages proximately resulting from any operations under this franchise; and be liable to the City for all damages proximately resulting from the failure of said Grantee to well and faithfully observe and perform each and every provision of this franchise and each and every provision of Division 3, Chapter 2 of the Public Utilities Code of the State of California. Grantee acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the use or existence of the pipes and appurtenances that are the subject of this Franchise are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability 11 . . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising from the violation of any local, state, or federal law or regulation, attorney's fees, disbursements, and other response costs are expressly within the scope of this indemnity. This subsection (d) shall survive the termination or expiration of this Franchise and shall continue for so long as the franchise property of Grantee is located within the City. (e) In the event the use of any franchise property is discontinued, Grantee shall promptly notify the Engineer of any material discontinuance and remove from the street all such discontinued property, unless the Engineer permits such property to be abandoned in place in accordance with the requirements of the Engineer (subject to applicable requirements of the California Public Utilities Commission). After abandonment, at the option of City, Grantee shall submit to the Engineer, an instrument, reasonably approved by the City and Grantee, transferring to the City the ownership of such franchise property. (f) City shall have the right to change the grade, width or location of any street, or improve any street in any manner, including but not limited to the laying of any sewer, storm drain, drainage facility, or other pipe, or construct and install any pedestrian tunnel, traffic signal, street lighting facility or other public improvement; provided, however, that nothing herein is intended to expand or limit the duty of Grantee to relocate at its expense under Public Utilities Code Section 6297 or common law, and as such law may change from time to time by judicial interpretation or by statutory enactment. If such work shall require a change in the position or location of any of Grantee's facilities or equipment, Grantee, at its 12 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. sole expense, within ninety (90) days after written notice from the Engineer, shall commence the work of doing any and all things to effect such change in position or location in conformity with the Engineer's written instructions. (g) This franchise may not be transferred (voluntarily, involuntarily, or by operation oflaw), leased, or assigned by Grantee except by consent in writing of the Common Council, which shall not be unreasonably withheld or unreasonably conditioned and unless the transferee or assignees thereof shall covenant and agree to perform and be bound by each and all of the terms hereof; provided, however, that the foregoing shall not apply to Grantee's inclusion of the franchise as security under a mortgage, deed of trust or other security agreement securing the repayment of bonds or notes. Grantee shall file with the City Clerk and City Administrator ofthe City within thirty (30) days after any sale, transfer, assignment, or lease of this Franchise, or any part hereof, or of any of the rights or privileges granted hereby, written evidence of the same, certified thereto by the Grantee or its duly authorized officers. SECTION EIGHT The City Treasurer, or any certified public accountant, or qualified person designated by the City, at any reasonable time during business hours, may make examination at Grantee's offices of its books, accounts, computerized data, and records, germane to and for the purpose of verifYing the data set forth in the statement required by SECTION FOUR . 27 hereof 28 13 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. SECTION NINE (a) Any pipes and appurtenances laid, located or maintained under said franchise shall be so placed as not to interfere with the use of the streets by the traveling public or for public purposes to any greater extent than is reasonably necessary; and in laying said pipes and appurtenances, Grantee shall fill the trench and leave the surface of the streets in as good condition as it was prior to excavating for laying said pipes and appurtenances; and any pipes and appurtenances laid or maintained under said franchise shall be laid, located and maintained in conformity with instructions given by and to the satisfaction of the Engineer; and Grantee, its successors and assigns, shall hold the City harmless from all damage resulting from the laying, use or operation of said pipes and appurtenances. (b) Where it is necessary to lay any underground pipes and appurtenances through, under or across any portion of a paved or macadamized street, the same, where practicable and economically reasonable, as determined by the Engineer, shall be done by a tunnel or bore, so as not to disturb the foundation of such paved or macadamized street; and in the event that the same cannot be so done, such work shall be done under a permit to be granted by the Engineer upon application therefor, and Grantee shall restore such street, or 23 portion of street, to as good a condition as existed before such work was done and such 24 restoration shall be completed to the reasonable satisfaction of the Engineer. 25 26 . 27 28 14 r----- . . 1 2 3 4 5 6 7 8 9 10 11 12 13 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. SECTION TEN If any portion of any street shall be damaged by reason of defects in any of the pipes and appurtenances maintained or constructed under this grant, or by reason of any other cause arising from the operation or existence of any pipes and appurtenances constructed or maintained under this grant, Grantee shall, at its own cost and expense, immediately repair any such damage and restore such portion of such damaged street to as good condition as existed before such defect or other cause of damage occurred, such work to be done under the direction of the Engineer, and to his reasonable satisfaction. SECTION ELEVEN 14 15 16 17 with any of the provisions or conditions hereof, and shall not, within ten (10) days after written 18 (a) If the Grantee of this franchise shall fail, neglect or refuse to comply demand for compliance, begin the work of compliance, or after such beginning shall not 19 prosecute the same with due diligence to completion, then the City, by its legislative body, may 20 21 22 23 24 declare this franchise forfeited. (b) The City may sue in its own name for the forfeiture of this franchise, in the event of noncompliance by the Grantee, its successors or assigns, with any of the . 27 terminate under Section Two (c). 28 15 . . . 1 2 3 4 5 6 7 8 9 10 11 12 13 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. SECTION TWELVE The Grantee of this 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 of this franchise; such payment to be made within thirty (30) days after the City shall furnish such Grantee with a written statement of such expenses. SECTION THIRTEEN After the publication ofthis ordinance, the Grantee shall file with the City 14 Clerk a written acceptance of the franchise hereby granted, and an agreement to comply with 15 the terms and conditions hereof. 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION FOURTEEN The City Clerk shall certify to the adoption of this ordinance and, within 15 days after its adoption, shall cause the same (with a list of the Council members voting for and against) to be published once in The Sun or a newspaper of general circulation in the city of San Bernardino. III III III 16 . . . 1 2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING GAS FOR ANY AND ALL PURPOSES UNDER, ALONG, ACROSS OR UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY. I HEREBY CERTIFY that the foregoing ordinance was duly adopted by the Mayor 3 4 5 6 7 8 COUNCIL MEMBERS: and Common Council of the City of San Bernardino at a meeting thereof, held , 2003, the following vote, to wit: on the _ day of ABSENT ABSTAIN NAYS AYES 9 10 ESTRADA LONGVILLE 11 MCGINNIS 12 13 DERRY 14 SUAREZ 15 ANDERSON 16 MCCAMMACK 17 18 19 20 Rachel G. Clark, City Clerk The foregoing ordinance is hereby approved this _ day of ,2003. 21 22 23 Approved as to 24 Form and legal content: 25 26 27 28 JUDITH V ALLES, Mayor City of San Bernardino JAMES F. PENMAN, City Attorney By: L7.(L. o 17 . i~<" -. 1>XlUD1C A * *FC)R OFFICE USE ONLY - NOT,A PUBLIC DOCUMENT. U .i' . {~~';~~t.. :'_.~f~:~i\-' r;;::;~~~~t, . ':"_~-~~~'_:';;"':::::':..;':: .~::_~_.~~\~~?t~}~;~;;-,:~>:.~,- . " . CITY OF SAN BE'RNARDINO ::'CITv CLERK's()FFICE~;'~"-~J;" .' ... . ~. RECORDS & INFORMATION MANAGEMENT PROGRAM ,"!P-~ c~ Ayes: AGENDA ITEM TRACKING FORM ~/ (~/ c3 /Y)' - /1'11 ~/ ]/ 0 ~ 'I ? ~- (;,,7 / / f:.. / ,- 1..i! Item No. kJ c?C::<3 Meeting Date/Date Adopted: Resolution/Ordinance No, Effective Date: Vote: Ordinance Urgency: Yes ~rmination/Sunset Date: ~ Nays: Absent: .-&- Date Sent to Mayor: 8 Date Returned from Mayor: S'/s- Ie:; Date of Mayor's Signature: Date of Clerk's Signature: S-:I?,lc ~ Date Summary Sent to Attorney: . Date Summary Returned from Attorney: Date Published: ;fje?' /0':" J' +-u.{).1 .;fo'I:k. c.j coJu;'.,.,.~JL Meeting Type:l~~,f... g?c~~----./' Date S~allmpressed: r Is-I/.'! '5 T .:/ r / Continued Fro 0 & Item No. Abstain: Date Sent for Signature: Expiration Date: Copies Distributed To' ~ Exhibits Complete & Attached to Resolution/Ordinance: Reminder Letter Sent: Reminder Letter Sent: Reminder Letter Sent: 5)~b ~ c::: ~ tL )~ - fj JL.-';:-..../ e'ld- Notes: Ready to File: Date: 0CICUMfN1: lOG\ noN: fORIiootSIAIefIda IIern TradUftI Fonft.cc Fomt No. 111.UlR ~ 1VD411996