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ORDINANCE 411AORDINANCE NO. 411. AN ORDINANCE OF THE CITY OF EL SEGUNDO GRANTING TO THE SOUTHERN CALIFORNIA GAS COMPANY, A CALI- FORNIA UTILITY CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE FRANCHISE, RIGHT AND PRIVILEGE TO USE FOR TRANSMITTING AND DISTRIBUTING GAS WITHIN THE CITY OF EL SEGUNDO, FOR ANY AND ALL LA19FUL PURPOSES, ALL GAS PIPES AND APPURTENANCES WHICH ARE NOW OR IAY HEREAFTER BE LAWFULLY PLACED IN THE PUBLIC STREETS, W, YS AND PLACES `uJITHIN SAID CITY, AND TO LAY AND USE IN SAID PUBLIC STREETS, WAYS AND PLACES ALL PIPES AND APPURTENANCES NECES- SARY OR PROPER FOR SAID PURPOSES, FOR AN INDETER -' 1,INATE PERIOD. T'IE CITY COUNCIL OF THE CITY OF EL SEGUNDO DOES ORDAIN AS FOLLOWS: SECTION I Jhenever in this ordinance the words or phrases hereinafter in this section defined are used, they shall have the respective meanings assigned to them in the following definitions (unless, in the given instance, the context wherein they are used shall clearly import a different meaning): (a) The word "Grantee's shall mean the corporation to which the franchise contemplated in this ordinance is granted and /or its lawful successors or assigns; (b) The word "City" shall mean the City of El Segundo, 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 City Engineer and /or Street Superintendent of the City; (e) The word "Gas" shall mean natural or manufactured gas, or a mixture of natural and manufactured gas; - 1 - (f) 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 the transmitting and /or distribution of gas. (g) The phrase "lay and use" shall mean to lay, construct, erect, install, operate, maintain, use, repair, replace or remove. SECTION II 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 the "Franchise Act of 1937 of the State of California ", 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 Califor- nia, herein referred to as the "Grantee", to lay and use pipes and appurtenances for transmitting and distributing gas for any and all lawful purposes, under, along, across or upon the streets, of the-City of El Segundo, California, for an indeter- minate term or period 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 fran- chise, and situate within the territorial limits of the State, municipal or public corporation purchasing or condemning such property, or until this franchise shall be forfeited for non- compliance with its terms by the possessor thereof. Such rights -z- m6..47:X shall not include the right to occupy any bridge, viaduct, sub- way, park, playground, school property, or other municipal prop- erty not constituting public thoroughfares, unless a special permit therefor shall be granted by the City Council of said City. SECTION III The rights and privileges hereby granted are upon the express condition that the grantee for valuable consideration moving from the City to the grantee, shall during the term there- of, as compensation for the use of the streets of the City by grantee in its gas operations hereunder, pay annually to the City, in lawful money of the United States, two per cent (2;%) of the gross annual receipts of grantee arising from the use, operation or possession of this franchise; provided, however, that such pay- ment shall in no event be less than a sum which shall be equal to one per cent (l %) of the gross annual receipts derived by the grantee from the sale of gas for all purposes within the limits of said City. SECTION IV (a) The Grantee shall file with the Clerk of said City, within three (3) months after the expiration of the calendar year or fractional calendar year, following the date of the granting hereof, 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 such Grantee during the preceding calendar year, or such fractional calendar year, from the sale of gas within said City. Such Grantee shall pay to said City within fifteen (15) days after the time for filing such statement, in lawful money of the United States, the afore- said percentage of its gross receipts for such calendar year, or such fractional calendar year, covered by such statement. (b) Said statement shall be verified by the oath of the General Manager, Secretary, Treasurer or President of the Grantee, - 3 - i ^� 4, Ln Wi !!7 � t% and shall be in such form and detail as from time to time may be reasonably prescribed by the City Clerk of said City. (c) Any neglect, omission or refusal by said Grantee to file such verified statement, or to pay said percentage at the time and in the manner specified, shall be grounds for the de- claration of a forfeiture of this franchise and of all rights of Grantee hereunder. SECTION V (a) The City Clerk, City Attorney, or any certified public accountant, or other qualified person designated by the City, at any reasonable time during business hours, may make examination at the 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 IV hereof, and to and for any other purpose relating to the rendition of service of gas by the Grantee within the City. (b) All books, accounts, maps and other records relating to the rendition of gas service by the Grantee within the City showing the affairs, properties or financial condition of the Grantee shall be kept within the City of E1 Segundo, or the City of Los Angeles, California, or in such other place within the territory served by Grantee as the reasonable convenience of the Grantee may require. SECTION VI By its acceptance of this franchise the Grantee agrees CD that in any proceeding of any character before any Court, State Commission, Board of Arbitration or other public authority no greater value shall be placed upon this franchise than the actual cash paid to the City by the Grantee for the cost of necessary publication in procuring same and any other sum paid by it to the municipality therefor at the time of the acquisition thereof. - 4 - SECTION IX Before making any opening or excavation in any street, or before disturbing the earth beneath the surface of any street, regardless of whether the surface thereof is damaged or removed or not, except in case of emergency, the Grantee shall: (a) file with the City Engineer a drawing, or drawings showing the proposed location and character of any plant, pipes, appurtenances, facilities or equipment to be constructed, erected or installed in the streets of the City; except that such draw- ing or drawings need not be filed to show the planned location and character of customerts service pipe line connections; (b) make application to the Engineer in accordance with the provisions of the ordinances of the City in force and ef- fect at the time of making such application, and secure a permit therefor which shall indicate the approximate time, manner and place of laying and using said pipes, appurtenances, facilities and /or equipment; (c) make such bond or deposit of money with the appro- priate officer of the City as may be from time to time required by ordinance of the City in force and effect at the time of the doing or performing of said work, which said bond or deposit of money shall be made to guarantee the payment to the City of any and all charges in connection with or resulting from the granting of said application. If the proposed location of any plant, pipes, appurtenances, facilities or equipment, does not, or will not interfere unrea- sonably with the ordinary travel or the use of the streets of the City, and otherwise complies with this franchise and all city ordinances, the Engineer shall approve the same, and issue a permit or permits therefor. SECTION X (a) The Grantee shall lay and use all its pipes, and appurtenances hereunder so as to cause the least possible - 6 - hindrance to the use of the streets for the purpose of travel or any other public: purpose. (b) After any work has been commenced by the Grantee in the streets of the City the same shall be prosecuted in good faith and with due diligence until completed. SECTION XI (a) When any opening or excavation is made, or work done in., upon, along, across, under, or over any street for any pur- pose whatsoever by the Grantee, in connection with the exercise of any right or privilege authorized by this franchise, said street or any portion thereof affected or damaged thereby, shall, as promptly as practicable, be restored to as useful, safe, dur- able and good condition as existed prior to the making of such opening or such excavation or the doing of such work, in confor- mity with the provisions of the ordinances of the City in force and effect at the time of the performance thereof and to the satisfaction of the City Engineer. (b) By the acceptance of this franchise the Grantee agrees that after the work of restoring such portion of said street has been completed as provided in the paragraph next hereinabove, it will preserve such portion of said street so restored from deterioration resulting from having been opened or excavated, ordinary wear, tear and use excepted. SECTION XII If any portion of any street in said City shall be damaged by reason of, growing out of, or resulting from the exercise by the Grantee of any or all of the rights or privileges granted by this ordinance, or by reason of any act or acts of the Grantee, or its servants or agents, in the exercise of such rights or privileges, the Grantee, at its own cost and expense, shall immediately repair such damage and restore said street to as useful, safe, durable and good condition as existing before such - 7 - �wftl° d f rO1 6Y %4 damage; such work to be done under the direction of the engineer and to his reasonable satisfaction. SECTION XIII In the event that during the term of this franchise the City shall provide by ordinance adopted in the exercise of its police powers, that all work of restoring the portion of any street affected or damaged by any opening or excavation made or work done by the Grantee, in, upon, along, across, under or over said street, shall be done and performed by the City and the City shall have done and performed said work pursuant to the provi- sions of said ordinance, the Grantee, by the acceptance of this franchise, agrees to pay the City the reasonable charges for its pro rata share of said work prescribed in said ordinance appli- cable alike to all privately owned public utilities using and occupying the streets of the City, such charges shall be paid by the Grantee to the City at the time and in the manner pro- vided in said ordinance. SECTION XIV (a) Any pipes and appurtenances laid and used pursuant to the provisions of this ordinance, or any tunnel or bore dug or made in the streets of the City in connection with the laying and using of any such pipes and appurtenances, shall be not less than 30 inches below the existing surface of the street where laid; except that where such depths are impracticable due to extraordinary circumstances, the Grantee shall secure the ap- proval of the Engineer or other duly authorized officer of the City, as to the suitable depth or location of said pipes and appurtenances, tunnel or bore, and the same shall be placed in conformity with such approved location or depth, and in the man- ner satisfactory to the Engineer or other duly authorized offi- cer of the City. - 8 - (b) All manholes, vaults, traps, catch basins, or other structures shall be so capped and covered as to be flush with the surface of the street, and shall not interfere in any way with use of the streets for the purpose of travel or in any way constitute a hazard to pedestrian or vehicular traffic; pro- vided, however, that vents for underground traps, vaults and manholes may extend above the surface of the street when said vents are located in parkways, between the curb and the property line provided said vents so located do not extend above the sur- face of said parkways, except by special permission of the City Council. (c) The Grantee shall not lay, construct, erect or in- stall in the streets of the City any vent pipe from any vault, manhole or other structure of the Grantee except in the manner and at the location or locations prescribed or approved by the Engineer. SECTION XV (a) The Grantee shall, upon the abandonment of any of its mains below the surface of the street, notify the Engineer in writing within twenty (20) days of such abandonment and if, in his opinion, the same should be removed during the term of this franchise, the Grantee will, within thirty (30) days after re- ceipt of notice to that effect from the Engineer or the City Council, commence the removal of the same at Granteets own cost and expense, or if, in the opinion of the Engineer, any work should be done in the streets for the purpose of insuring the restoration of said streets to good order and condition, the Grantee will, upon thirty (30) days' written notice to that effect from the City commence such work as directed, at Granteets own cost and expense. - 9 - 2`4;`2U SECTION XVI In the event that during the term of this franchise, the City shall change the grade, width or location of any street, or improve any street in any manner, or lay any sewer, storm drain, conduit or pipe, or construct any subway, viaduct, pedestrian tunnel or other lawful public work of a governmental character, or lay any water main or pipe, and such work shall render neces- sary any change in the position or location of any facilities or equipment of the Grantee in the street, including the support thereof while such work is being done or performed, the Grantee, at its own cost and expense, within twenty (20) days after written notice from the Engineer and request so to do, shall be- gin the work of doing any and all things to effect such change in position or location in conformity with such written instruc- tions. If the Grantee shall sustain any loss, injury or damage by reason of the doing of any of the hereinabove mentioned public works, and if said work shall be done in a reasonable manner and without negligence on the part of the City and /or any officer, board, commission or department thereof, then the Grantee shall have no recourse whatever against the City and /or any officer, board, commission, or department thereof, on account of such loss, injury or damage. SECTION XVII In granting this franchise, the City (without admitting or recognizing in any way that it is not already vested with the powers hereinafter reserved) hereby expressly reserves the right to grade, widen, relocate, sewer, pave, macadamize, to lay con- duit, water, gas or other pipe therein, or to alter, repair, or otherwise provide for the making of local improvements in the streets along which this franchise is granted, and the City also hereby expressly reserves the right to enact and enforce all - 10 - reasonable and proper ordinances in the exercise of its police power, or its power to make and provide for the making of local improvements by special assessment, and nothing herein contained shall ever be construed or taken to exempt or as a contract right exempting the Grantee, from complying with such ordinances now in force or which may hereafter be adopted. The enumeration herein of specific rights reserved shall not be taken as ex- clusive or as limiting the general reservations here made. SECTION XVIII The Grantee, by the acceptance of this franchise, agrees that it will immediately in advance of any paving or repaving of any street and upon reasonable notice thereof given to Gran- tee by the City, install and construct at its own expense all mains reasonably necessary for its future use of said street, so as to prevent so far as possible the disturbance by the Grantee of any such pavement after such paving or repaving. Except in case of emergency such pavement shall not be cut or disturbed by the Grantee for one year after such pavement is laid except by special permission of the City Council. SECTION XIX In the event the Grantee shall fail to commence work in compliance with the written instructions of the Engineer or City Council, as provided for in this ordinance, within thirty (30) days after service of the same upon the Grantee, or its local agent or manager (unless unable to comply with such in- structions by reason of strikes, riots, acts of God, acts of public enemies, or other circumstances beyond the control of Grantee), the Engineer shall cause the work required in said notice to be done and performed and by acceptance of this fran- chise the Grantee agrees to pay the City the costs thereof within ten (10) days after the delivery to it, or its local - 11 - I agent or manager, of an itemized bill therefor. It is under- stood and agreed that the cost of doing said work shall be con- sidered the actual cost plus ten per cent (101,0') thereof for overhead. SECTION XX (a) The Grantee of this franchise shall indemnify, save and 'hold harmless, the City and any officers and employees there- of, against and from all damages, judgments, decrees, costs and expenditures which the City, or such officer or employee, may suffer, or which may be recovered from, or obtainable against the City, or such officer or employees, proximately caused by and growing out of, or resulting from the exercise by the Gran- tee of any or all of the rights or privileges granted by this ordinance; provided, however, that the Grantee shall have the right at its option to defend any suit that may be instituted against the Cit;r, or any officer or employee thereof, by reason of, or growing out of, or resulting from the exercise by the Grantee of any or all of the rights or privileges granted by this franchise, or by reason of any act or acts of the Grantee, or its servants or agents, in exercising this franchise. (b) In the event the City, or any officer or employee thereof, suffers any damage, or any person, firm or public cor- poration makes claim against the City, or any officer or em- ployee thereof, by reason of, or growing out of, or resulting from the exercise by the Grantee of any or all of the rights or privileges granted by this ordinance, or by reason of any act or acts of the Grantee, or its servants or agents, in exercising this franchise, the City, or such officers or employees thereof, must give immediate written notice thereof to the Grantee. SECTION XXI If the Grantee is dissatisfied with any determination of the Engineer made by him in pursuance of authority granted to - 12 - him in this ordinance, it ma.y petition the legislative body of the City to review the same within ten (10) days after such determination rendered by the Engineer in ,writing. The decision of said legislative body thereon shall be final and conclusive. SECTIUN XXII No transfer, assignment or lease, or attempted transfer, assignment or lease, of this franchise, or of any right, privi- lege or interest therein, to any person, firm or corporation, shall have any force, effect or validity unless and until: (1) The Grantee shall have duly executed a good and suf- ficient instruiient _making such transfer, assignment or lease, and a certified copy thereof shall have been filed in the of- fice of the City Clerk. (2) An ordinance of the City consenting to such transfer, ssi -rmert nr lease shall hava been dullr a.drnted gird become effective (such consent however not to be Withheld if the transferee, assignee or lessee shall be a responsible Public Utility Corporation). (3) The transferee, assignee, or ].e��Pe shat_.] duly exe- cute and file in the office of the City a meed and suf- ficient t 4rstri)ment accepting such transfer, assignment or lease, a�� „ring all_, the obligations of the Grantee under this franchise. (1�) The transferee, assignee or lessee shall duly execute and file in the office of the City Clerk of the City a good and sufficient instrument surrendering to the Cit;r all franchises, rights and privileges, :which the transferee, assignee or lessee would have been required to surrender under the provisions hereof, if such transferee, assignee or lessee had been the origina 1 Grantee hereof. Provided, hoTwever, that the terms of the foregoing cla>>se-- (1), (2), (3) and Oj of this section shall not apply to any - 13 - mortgage or deed of trust made by t'_^e Grantee (or made by any person, firr or corporation ender a transfer, assignment or lease made in fi.i11 accordance with the provisions of this sec- tion), in good faith to secure an issue or issues of bonds; (but the terms of said clauses (1), (3) and ( /�) shall apply and the terms of said clause (2) shall not apply to any buyer at a sale under any mortgage or deed of trust hereafter executed). SECTION XXIII The franchise, right and privilege granted by this ordi- nance, if and when it shall become effective, shall, at all times thereafter during the life thereof, be held and exercised by Grantee, subject to: (1) the right of the City, which right is hereby express- ly reserved to said City and /or an agency thereof to purchase, by voluntary agreement with Grantee, or by process of eminent domain as an entirety, (a) all of the Granteets physical properties (ex- cept those which are hereinafter in this subsection specifi- cally excepted) which are situated within the City at the time of such purchase and used for supplying gas to consumers within the City, whether so used exclusively or also used for supply- ing gas to consumers without the City; (b) all easements for private rights of way within the City used in the operation of said properties; (c) all maps and engineering, accounting and con- sumer's records (including any records of original costs) used in the operation of said properties; (d) all then - existing contracts for the ordinary sale of gas to consumers within the City; (e) all franchises to supply gas within the City; (f) all franchise rights under which the said prop- erties shall be operated; and - 14 - k SECTION VII Grantee, by the acceptance hereof, and as a condition precedent to the enjoyment of any rights or privileges hereunder, agrees that all use by it of the streets of the City during the term hereof for the purposes set forth in this ordinance shall be enjoyed in compliance therewith, and that it will, for the term hereof, operate in compliance with the provisions of this ordinance, and make the percentage payments herein specified. This grant is made in lieu of all other franchises owned or claimed by Grantee for using the streets of said City for trans- mitting and distributing gas within the limits of City, as such limits now, or may hereafter exist. SECTION VIII All work undertaken or performed, and all pipes and appur- tenances laid or used pursuant to the provisions of this franchise shall be of the standard required by law, by the orders of the Public Utilities Commission of the State of California, and by any other body or governmental authority having jurisdiction in the premises. Where not in conflict with the State Law, or orders of the Public Utilities Commission of the State of California, or other governmental authority having jurisdiction in the premises, said pipes and appurtenances shall be placed, erected and installed in accordance with the reasonable rules and regulations and ordinances of the City. Provided, however, that the Grantee of this franchise shall place its plant, pipes, appurtenances, facilities and equipment in or upon the streets of the City, only after securing the approval of the City Engineer and Street Superintendent of said City or such other officer of the City as the legislative body of the City may direct as to the proposed location of such plant, facilities or equipment, as set forth in Section IX hereof. - 5 -