HomeMy WebLinkAboutOrdinance #3117 ORDINANCE NO. ----
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
GRANTING TO SOUTHERN CALIFORNIA GAS COMPANY, A
CORPORATION, THE RIGHT, PRIVILEGE AND FRANCHISE TO LAY .AND USE
PIPES AND APPURTENANCES FOR TRANSMITTING, DISTRIBUTING AND
MEASURING 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 City Council of the City of Huntington Beach does ordain as
follows:
SECTTON 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 definitions
(unless, in the given instance, the context wherein they are used
shall clearly import .a different. ineaning)
(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 Huntington
Beach, 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, alleys and places as the same now or may hereafter exist
within said City;
(d) The word "Engineer" 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, distributing and measuring gas
for any and all purposes under, along, across or upon the public
streets, ways, alleys and places ::n 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.
(f) The word "gas" shall mean natural or artificial
gas, or a mixture of natural and artificial gas, and shall
include industrial gas as defined in Public Utilities Code
56201. 3 ;
Page 2
(g) The phrase "pipes and appurtenances" shall mean
pipe, pipeline, 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 transmitting, distributing or measuring gas.
(h) The phrase "lay and use" shall mean to lay,
construct, erect, install, operate, maintain, use, repair,
replace, or remove.
SECTION TWO
(a) That the 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 , and Article VI, Section 615 of the
City Charter of the City of Huntington Beach, be and the same is
hereby granted to Southern California Gas Company, a corporation
organized and existing under and by virtue of the laws of the
State of California, herein referred to as the "Grantee, " to lay
and use pipes and appurtenances for transmitting, distributing
and measuring gas for any and all purposes, under, along, across
or upon the streets of the City for a twenty (20) year term from
and after the effective date hereof (January 1, 1990) .
SECTION THREE
(a) The Grantee shall pay to the City at the times
hereinafter specified, in lawful money of the United States, a
Franchise Fee annually which shall be equal to: i) two percent
(2%) of the gross annual receipts of the Grantee derived from the
sale of gas within the limits of the City under this Franchise,
plus (ii) the "In Lieu Fee" of Section THREE (c) .
(b) The Franchise Fee shall be paid in four
installments, each installment being equal to two percent (2%) of
the total gross revenues 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 25th. For
example, the installment for the first quarter of the year
(January through March } shall be paid to the City on May 25th.
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Upon notice by City that payments shall be made in
accordance with subdivision (d) of this SECTION THREE, Grantee
shall pay the franchise fee calculated under SECTION THREE (d) in
installments as provided in the preceding paragraph, provided
that for the first year under SECTION THREE (d) the amount of
each of the first three installments shall be one-fourth of the
amount of the total annual fee due for the year under subdivision
(d) as estimated in good faith by Grantee, and the final yearly
payment shall be the actual balance due as provided by SECTION
THREE (d) .
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.
(c) The "In Lieu Fee" shall be equal to one and five--
tenths percent (1. 5%) of the "imputed value" of "non-proprietary
gas" conducted, conveyed, transported, supplied and distributed
to the City and/or its inhabitants within the City per calendar
year, or fractional calendar year, during the term of this
franchise. As used. herein,
"non--proprietary gas" means gas that is conducted,
conveyed, transported, supplied and distributed, but
not sold, to the City and/or its inhabitants within the
City by Grantee;
"imputed value" means the product of the actual volumes
of such non-proprietary gas conducted, conveyed,
transported, supplied and distributed, but not sold, to
the City and/or its inhabitants within the City by
Grantee during the period of calculation times: (1) _
until August 1, 1991, the average weighted cost of
"non-core gas" for such period; (2) after August,
1991, the average weighted cost (WACOG) of gas under
SoCalGas ' procurement portfolio for all gas customers
shall apply;
"non-core gas" means that gas which, in accordance with
rules and directives adopted from time to time by the
Commission, is purchased by the Grantee to serve its
non-core classified commercial, industrial, utility
electrical generating and wholesale customers
(including, but not limited to, the category of
customers for which it also transports and delivers
non-proprietary gas within the City) , and currently
includes short-term discretionary gas purchased by
Grantee for such customers.
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(d) In the event the legislature amends the Franchise
Act of 1937 (Public Utilities Code 56201 - 6302) or enacts any
other state law which increases the franchise payment to general
law cities to a level greater than that provided in Section THREE
(a) above, then the City shall have the option of prospectively
employing the legislative formula, which shall apply for the
remaining term of this agreement. If the City exercises said
option, the legislative formula shall be prospectively applied
hereto on the later of: a) the effective date of the
legislation, or b) January 1 of the calendar year in which the
City exercised said option.
(e) In the event that the "imputed value" cannot be
determined using the methodologies identified in Section THREE
(c) because such methodologies are no longer in use or no longer
reasonably reflect the imputed value of non-proprietary gas, the
City and Grantee shall agree upon a methodology that reasonably
reflects the value of such non-proprietary gas.
(f) In the event that the UEG plants within the City
have a combined annual "plant factor" of 50% or less or are not
operational in any calendar year, the City may elect to receive,
as its Franchise Fee for such year in lieu of the Franchise Fee
calculated in accordance with Sections THREE (a) and (c) ,
payments equal to four percent (4%) of the gross annual receipts
of Grantee arising from the use, operation or possession of said
Franchisee. Notice of this election shall be provided to Grantee
no later than thirty (30) days prior to the date the final
payment is due for the calendar year in question (e.g. February
23 or 24 in a Leap Year) . The final yearly payment shall be the
actual balance due in accordance with this method.
(g) Any notices under this SECTION THREE shall be in
writing and be delivered by courier service or by certified mail,
return receipt requested, 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 Huntington Beach
P.O. Box 2740
2000 Main Street
Huntington Beach, California 92647
Attn: City Manager and City Attorney
Southern California Gas Company
810 South Flower Street
P.O. Box 3249
Los Angeles, CA 90051-1249
Attn: Tax and Ad Valorem Tax Manager
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SECTION FOUR
(a) On or before the fifteenth day of March of each
calendar year during the term of this franchise and forty-five
(45) days after the expiration of the term of this franchise, the j
Grantee shall file with the City Clerk of the City, the original,
and with the Director of Finance of the City, one copy of a
statement showing the following:
(1) The total gross revenue under SECTION THREE
received by the Grantee from the operation of its
business in the City during the preceding calendar
year, or fractional calendar year.
(2) The method (and supporting calculations) used to
calculate the franchise fees which are payable to the
City in accordance with this franchise [i.e. , Franchise
Fee, In Lieu Fee, or fees of SECTION THREE (d) ] .
(3) The total amount of all quarterly installments
made by Grantee during the preceding calendar year or
fractional calendar year.
(4) Such other data or information as City may
reasonably need to calculate or determine the amounts
which Grantee is obligated to pay City pursuant to
SECTION THREE, provided that the City shall request
such data and information from Grantee in writing and
shall deliver said request no less than 60 days prior
to the due date of the above-described statement.
(b) Said statement shall be verified by the General
Manager or authorized officer of the Grantee, and shall be in
such form and detail as from time to time shall be reasonably
prescribed by the Director of Finance.
(c) Within ten (10) days after the filing of said
statement, the Grantee shall pay to City, at the office of the
City Treasurer, in lawful money of the United States, the sums of
money required to be paid by Grantee to City under SECTION THREE
for the calendar year, or fractional calendar year, covered by
the statement, minus the sum of the quarterly installment amounts
paid for such calendar or fractional calendar year.
(d) Any neglect, omission or refusal by Grantee to
file the verified statement required under subsection (a) above,
or to pay any required payments under SECTION THREE at the time
and in the manner specified shall be grounds for the declaration
of a forfeiture of this franchise and of all rights and
privileges of Grantee hereunder, provided that Grantee shall not
have cured said neglect, omission, or refusal to file or pay
within twenty (20) days following written notice from the City of
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such failure to file or pay, or, if such neglect, omission or
refusal is not reasonably subject to cure within such twenty (20)
day period, Grantee has not commenced to cure such neglect,
omission or refusal within such twenty (20) day period and has
not continued to prosecute such cure to completion. The
prevailing party in any action to collect or enforce SECTION
THREE and/or FOUR, shall be entitled to reasonable attorney's
fees.
SECTION FIVE
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, distributing and
measuring 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.
SECTION SIX
The Franchise granted hereunder shall not become
effective until written acceptance thereof shall have been filed
` by the Grantee 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 Grantee therein shall likewise be deemed to
be abandoned within the limits of such territory.
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SECTION SEVEN
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 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 of
the 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.
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SECTION EIGHT
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(a) Grantee shall construct, install and maintain all
pipes and appurtenances in accordance with all of the ordinances,
rules and regulations theretofore, 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 j
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) Grantee shall 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 indemnify, defend, and hold harmless
the 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 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 California
Public Utilities Code and Article VI, SECTION 615 of the City
Charter of Huntington Beach.
I
(d) Upon abandonment of any of Grantee' s facilities or
equipment located above or below the surface of any street,
Grantee shall notify the Engineer in writing of such abandonment
within ninety (90) days thereafter.
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(e) 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, conduit, water or other pipe, or construct and
install any pedestrian tunnel, traffic signal, street lighting
facility or other public improvement. If, in the opinion of the
Engineer, such work shall require a change in the position or
location of any of Grantee' s facilities or equipment, Grantee, at
its 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 Engineers ' written instructions; provided,
however, that Grantee shall not be required to bear the expense
of such work done at the request of the City if and to the extent
that such request is on behalf, or for the benefit, of any
private developer or other non--governmental entity so long as no
expense, direct or indirect, results to the City. Nothing
herein, however, is intended to modify or limit the provisions of
Public Utilities Code §6297 (and as amended in the future) or the
judicial appellate decisions of the State of California
interpreting Public Utilities Code §6297 (and as amended in the
future) .
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(f) This franchise may not be transferred
(voluntarily, involuntarily, or by operation of law) , leased or
assigned by the grantee except by consent in writing of the City
Council, which shall not be unreasonably withheld or 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. The grantee shall file with the City Clerk and City
Administrator of the City within thirty (30) days after any sale,
transfer, assignment of 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 NINE
(a) 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
the Grantee' s offices of its books, accounts, and records,
germane to and for the purpose of verifying the data set forth in
the statement required by SECTION FOUR hereof and to and for any
other purpose relating to the rendition of gas service by the
Grantee within the City, or the charges to be made therefor.
..... SECTION TEN
(a) The Engineer shall have the right to give the
Grantee such directions for the location of any pipes and
appurtenances as may be reasonably necessary to avoid sewers,
water pipes, conduits or other structures lawfully in or under
the streets; and before the work of constructing any pipes and
appurtenances is commenced by Grantee, the Grantee shall file
with said Engineer plans showing the location thereof, which
shall be subject to the approval of such Engineer (such approval
not to be unreasonably withheld) ; and all such construction shall
be subject to the inspection of said Engineer and done to his or
her reasonable satisfaction. All street coverings or openings of
traps, vaults, and manholes shall at all times be kept flush with
the surface of the streets; provided, however, that vents for
underground traps, vaults and manholes may extend above the
surface of the streets when said vents are located in parkways,
between the curb and the property line, and are not, in the
reasonable opinion of the Engineer, hazardous to the public.
(b) Where it is necessary to lay any underground pipes
through, under or across any portion of a paved or macadamized
street, the same, where practicable and economically reasonable j
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
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permit to be granted by the Engineer upon application therefor,
and grantee shall restore such street, or portion of street, to
as good a condition as existed before such work was done and such
restoration shall be completed to the reasonable satisfaction of
the Engineer.
SECTION ELEVEN
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, said Grantee shall, at its own cost and expense,
immediately repair any such damage and restore such portion of
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 or her reasonable
satisfaction.
SECTION TWELVE
(a) If the Grantee shall fail, neglect or refuse to
comply with any of the provisions or conditions hereof, and shall
not, within ten (10) days after written demand for compliance,
begin the work of compliance, or after such beginning shall not
prosecute the same with due diligence to completion, then the
City, by its legislative body, may 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
conditions hereof.
SECTION THIRTEEN
1
The Grantee 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 Grantee with a written statement of such expenses.
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SECTION FOURTEEN
Not later than thirty (30) days after the publication
of this ordinance, the Grantee shall file with the City Clerk a
written acceptance of the Franchise hereby granted, and an
agreement to comply with the terms and conditions hereof.
SECTION FIFTEEN
This ordinance shall take effect thirty (30) days after
its adoption, and shall be deemed effective as of January 1, r
1990. The City Clerk shall certify to the adoption of this
ordinance and shall cause a synopsis of the same to be published
once in the Daily Pilot newspaper.
Attest:
City Clerk Mayor
APPROVED TO FORM: �h
INIT " DD iAiN A' R ED:
Cit Attorne
' Clt A min' strator
Y Y
Y Y _ S- Y-11
Y
EWED AND APPROVED:
1-
i�ty rni Cs or
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Ord. No. 3117
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF HUNTINGTON BE )
I, CONNIE BROCKWAY, the duly elected, qualified City
Clerk of the City of Huntington Beach and ex-officio Clerk of the
City Council of the said City, do hereby certify that the whole number
of members of the City Council of the City of Huntington Beach is seven;
that the foregoing ordinance was read to said City Council at a regular -
meeting therof held on the 20th day of May
19 91 and was again read to said City Council at a regular
meeting therof held on the 3rd day of June 19 91 and
was passed and adopted by the affirmative vote of at least a majority of
all the members of said City Council .
AYES: Councilmembers:
MacAllister, Winchell , Silva, Green, Kelly, Robitaille, Moulton-Patterson -
NOES: Councilmembers:
None
ABSENT: Councilmembers:
None
O _
1, Connie 8rockviay Ci7Y CLERK of the City of
Hunlirol.^n ONch and BX•Of 60 Clork fif the City
Council, ftnt-)y certify that a synopsis of ft3 City Clerk and ex-offi ci o Clerk
ordinarc.,,a �.;gin pt..Vishe~7 Daaly P ylon of the City Council of the City
�� of Huntington Beach, California
City Clerk.
"�City Clerk