ORDINANCE NO. 429
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 "Franchisee" shall mean Southern California Gas Company, and its lawful successors or assigns;
(b) The word "City" shall mean the City of Rancho Palos Verdes, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated or reincorporated form;
(c) The word "streets" shall mean the public streets, ways, and alleys as the same now or may hereafter exist within said City;
(d) The word "Director" shall mean the Director of Public Works of the City;
(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, and alleys in the City, and shall include and be in lieu of any existing or future City requirement to obtain a license or permit for the privilege of transacting and carrying on a business within the City or any additional territory hereinafter annexed by or consolidated with the City; provided that any such additional territory shall only be subject to one surviving franchise agreement as determined by the Los Angeles County Local Agency Formation Commission;
(f) The word "gas" shall mean only 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, 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;
(h) The phrase "lay and use" shall mean to lay construct, erect, install, operate, maintain, use, repair, replace, or remove;
(i) The word “release” shall mean any discharge, active or passive migration, deposit, burial, emplacement, seepage, or disposal of a Contaminant into the environment originating from any Facility or from Franchisee's activities; and
(j) The word “Contaminant” shall mean any material, substance or constituent originating from Franchisee’s facilities or activities, whether solid, liquid, semisolid, or gaseous in nature, including any hazardous substance or waste, hazardous material, chemical compound, petroleum (or fraction thereof), or any hydrocarbon substance, pollutant or contaminant, as those terms are defined by any federal, state or local law, rule, regulation or order.
(k) The phrase “Applicable Law” shall mean all present or future federal, state, municipal, or local laws, rules, regulations, ordinances, codes, orders, permit requirements, judgments, injunctions, or decrees, or any judgment or order or decree by a court applicable to the Franchisee or any of Franchisee’s facilities or activities.
(a) By this ordinance, the City Council hereby grants to Franchisee the nonexclusive right, privilege and franchise, subject to each and all of the terms and conditions contained in this ordinance, and pursuant to the provisions of Division 3, Chapter 2 of the Public Utilities Code of the State of California, known as the Franchise Act of 1937, for the sole purpose of laying and using pipes and appurtenances to transmit and distribute gas for any and all purposes, under, along, across or upon the streets of the City or any additional territory hereinafter annexed by or consolidated with the City; provided that any such additional territory shall only be subject to one surviving franchise agreement as determined by the Los Angeles County Local Agency Formation Commission. The granting of this Franchise shall not prevent the City from granting any identical or similar franchise to any person or entity other than the Franchisee.
(b) The term or period of this franchise shall be for a period of twenty-five (25 years) from and after the effective date hereof 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 terms by the possessor thereof.
(c) In the event the Franchise Act of 1937 ("Franchise Act") is amended by the Legislature or interpreted by a final decision of the Supreme Court of the State of California in a manner that materially affects or materially changes the rights or obligations of the parties (both of which events are hereafter referred to as "Change in Law"), City or Franchisee shall meet to negotiate changes to this franchise which may be appropriate in view of such Change in Law. The parties agree to meet and to negotiate in good faith in a commercially reasonable manner.
(a) The Franchisee shall pay to the City at the times hereinafter specified, in lawful money of the United States, a sum annually which shall be equivalent to two percent (2%) of the gross annual receipts of Franchisee 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 the Franchisee derived from the sale of gas within the limits of the City under this franchise; and further provided, notwithstanding any other provision of this Agreement, that in the event the Legislature shall amend the Franchise Act of 1937 (Public Utilities Code Section 6201-6302) to permit a franchise payment greater or less than the percentage formula specified herein, the Franchise fee agreed upon herein shall be automatically changed to the amount allowed by the Legislature in amending such act. No increase in the Franchise fee that results from the application of this section shall take effect until the Franchisee has filed in good faith and the California Public Utilities Commission (the “PUC”) has approved an application to adjust rates to enable Franchisee to pass said Franchise fee increase through to consumers. The City agrees to support said application to the PUC and shall provide such reasonable assistance to the Franchisee as Franchisee may request, including, but not limited to, providing declarations and/or testimony in support of said rate adjustment. In the event the PUC approves a retroactive rate adjustment, the effective date of the increase in the Franchise fee will be correspondingly retroactive.
(b) The Franchisee 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 Franchisee, 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. It shall be the duty of the Franchisee to pay to the City within fifteen (15) days after the time for filing such statement in lawful money of the United States, the specified percentage of its gross receipts for the calendar year, or such fractional calendar year, covered by such statement. Any neglect, omission or refusal by said Franchisee to file such verified statement, or to pay said percentage, at the times or in the manner hereinbefore provided, shall be grounds for the declaration of a forfeiture of this franchise and of all rights thereunder.
This grant is made in lieu of all other franchises owned by the Franchisee, or by any successor of the Franchisee 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.
The Franchise granted hereunder shall not become effective until written acceptance thereof shall have been filed by the Franchisee thereof with the Clerk of the City. When so filed, such acceptance shall constitute a continuing agreement of the Franchisee that if and when the City shall thereafter annex or consolidate with additional territory, any and all franchise rights and privileges owned by the Franchisee therein shall likewise be deemed to be abandoned within the limits of the additional territory. If Franchisee fails to file the written acceptance within the time and in the manner prescribed by this Section, Franchisee shall be deemed to have accepted each and every term of the Franchise.
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 of the Franchisee 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 Franchisee; nor shall this franchise ever be given any value before any court or other public authority in any proceeding of any character in excess of the cost to the Franchisee of the necessary publication and any other sum paid by it to the City therefore at the time of the acquisition thereof.
The Franchisee 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, 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 franchisee under this franchise;
(c) Indemnify, defend and hold harmless the City and its elected and appointed officials, officers, employees and agents from any and all liability for damages resulting from, arising out of, or claimed to arise out of, directly or indirectly, the negligent or wrongful acts, errors or omissions of Franchisee in conducting any operations under this Franchise; and be liable to the City for all damages resulting from the failure of said Franchisee well and faithfully to 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. Franchisee acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability caused by the release or spill of any Contaminant as a result of Franchisee’s use of or the existence of the pipes and appurtenances are expressly within the scope of this indemnity; to the extent they are imposed or required by the state agency with responsibility for the hazardous material or waste or the release or spill, the costs, expenses, and legal liability 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 (c) shall survive the termination or expiration of this franchise and shall continue for so long as franchise property of Franchisee is located within the City
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, Franchisee 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 Director, and to his or her reasonable satisfaction. If the Franchisee, within ten (10) days after receipt of written notice from the City, instructing it to repair such damage, shall fail to commence to comply with such instructions, or, thereafter, shall fail diligently to prosecute such work to completion, then the City immediately may do work necessary to carry out said instructions at the cost and expense of the Franchisee, which cost and expense, the Franchisee agrees, by its acceptance of this Franchise, to pay upon demand. If such damage constitutes an immediate danger to the public health or safety requiring the immediate repair thereof, the City without notice may repair such damage and the Franchisee agrees to pay all costs incurred.
(a) This Franchise is granted and shall be held and enjoyed upon each and every condition contained in this Ordinance and shall be strictly construed against the Franchisee. The Franchise shall grant only those rights that are stated in plain and unambiguous terms. Franchisee shall comply with all Applicable Law in the exercise of its rights under the Franchise. If the Franchisee shall fail, neglect or refuse to comply with any of the material provisions or conditions hereof, and shall not, within thirty (30) 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, by its legislative body, may declare this franchise forfeited but only after a hearing shall have been conducted. Notice of such hearing shall be given to Franchisee by certified mail not less than ten (10) days prior to such hearing.
The Franchisee shall keep and preserve for a period of not less than four (4) years all financial records maintained by Franchisee in connection with this Franchise. Upon request, the Franchisee shall permit the City or its duly authorized representative to examine at reasonable times all of Franchisee's pipeline monitoring and repair reports subject to this Franchise, and any and all books, accounts, papers, maps, and other records kept or maintained by the Franchisee or under its control which concern the operations, affairs, transactions or property of the Franchisee with respect thereto. Said records shall be made available upon reasonable notice to the City at Franchisee’s office in Los Angeles, California.
a. Any decision made by the Director pursuant to authority delegated in this Ordinance may be appealed by any interested person to the City Council by filing a notice of appeal with the City Clerk within fifteen (15) calendar days of the issuance of the Director’s decision. The City Council shall fix a time and place for hearing such appeal, and the City Clerk shall give notice in writing to the Franchisee at the address on file with the City. The findings of the City Council shall be set forth in writing and shall be served upon the Franchisee by personal service or by depositing the notice in the United States mail, postage prepaid, addressed to the Franchisee at the address on file with the City. For purposes of seeking judicial review, the decision of the City Council shall be final when notice of the decision is served upon the Franchisee.
PASSED, APPROVED, AND ADOPTED this 20th day of December 2005.
/s/ Stefan Wolowicz
/s/ Carolynn Petru
State of California )
I, Carolynn Petru, City Clerk of the City of Rancho Palos Verdes, do hereby certify that the whole number of members of the City Council of said City is five; that the foregoing Ordinance No. 429 passed first reading on December 6, 2005, was duly and regularly adopted by the City Council of said City at a regular meeting thereof held on December 20, 2005, and that the same was passed and adopted by the following roll call vote:
AYES: Clark, Gardiner, and Mayor Wolowicz