WEED
CITY COUNCIL
REGULAR MEETING
The City Council of the City of Weed held a regular meeting on Thursday, June 22, 2000, at 6:00 p.m. in the Council Chambers at City Hall.
Mayor Neva Barnett called the meeting to order and
led recitation of the Pledge of Allegiance.
Present, in addition to Mayor Barnett, were Council Members Roy
Bergfors, Amelia “Mel” Borcalli, Joel Obuchon, and Vince Tallerico. Also present were City Administrator Earl
Wilson, City Attorney Allen King, Police Chief Martin Nicholas, Public Works
Director Craig Sharp, and City Clerk Deborah Salvestrin.
PUBLIC
BUSINESS FROM THE FLOOR
Mayor Barnett invited comments from the audience on
specific agenda items or any item of interest that is within the Council’s
jurisdiction noting that no action could be taken by the Council except to set
the matter for the next regular Council meeting. There were none.
Council Member Borcalli reported on the unveiling of
a mural made out of tiles that had been decorated by children at the elementary
school. Ms. Borcalli noted the mural
portrays the history of Weed.
Council Member Obuchon reported that the Garbage
Committee might have a recommendation for the Council at the next meeting.
Mayor Barnett commended the various Main Street
businesses and individuals that are making building façade and landscaping
improvements.
A. Noise: Consideration of report from City Attorney regarding regulation of noise generated by truck “retarder” (or air compression) devices
City Attorney King reported findings
of research he conducted regarding posted signs in Lake County noting that they
are not enforceable but were placed by CalTrans as a result of a former council
member’s lobbying of legislators.
City Attorney King added that noise
could be regulated by City ordinance if using explicit measurements rather than
subjective standards such as “excessive, loud, unusual, or explosive”.
Council Member Borcalli mentioned
seeing a sign in another state that read “compression brake use prohibited” and
questioned similar signs with “discouraged” in the place of “prohibited”.
Council members then discussed
regulation or prohibition of modified exhaust systems.
City Attorney King mentioned that
the problem is compounded because sign posting is governed by the State where
the problem exists and therefore may not be City jurisdiction.
Dale Vanderhoof, a resident of
Crestmore Avenue, complimented the Council on attempts to regulate the noise.
City Attorney King and City staff
agreed to continue research regarding the posting of courtesy signs, and/or
other noise regulations.
B. Community Development Block Grant Program: Consideration of appointment to the Housing Rehabilitation Loan Committee
City Administrator Wilson reported
that in response to the City’s newspaper advertisement, letters of interest in
appointment to the CDBG Housing Rehabilitation Loan Committee were
received. Mr. Wilson noted that one
individual lives and works outside of this community, and the other lives in
the City and works here.
Council Member Borcalli moved,
seconded by Council Member Ramsey, approval of the appointment of Jim Taylor to
the CDBG Housing Rehabilitation Loan Committee.
AYES: Council Members Barnett, Borcalli,
Obuchon, Ramsey, and Tallerico
NOES: None
ABSENT: None
City Administrator Wilson reported
the Committee continues to meet to work on an ordinance for Council
consideration.
Council Member Ramsey questioned
timing, and City Attorney King stated that only the Committee can answer that
question because he is working at the direction of the Committee, however he
estimates that an ordinance will be ready in late July or early August.
City Administrator Wilson reviewed
that an ordinance has been drafted at the direction of the Council to regulate
gas franchises in the City. Mr. Wilson
recalled that Blue Star Gas came before the Council some months ago, and the
Council agreed to consider an ordinance.
Mr. Wilson added that the City Attorney has reviewed and approved the
proposed ordinance.
Council Members discussed the method for payment of
franchise fees, City liability, and plans for expansion of the system.
Council Member Obuchon moved, seconded by Council
Member Tallerico, that the reading in full of the body of Ordinance No.
352-2000 be waived, said ordinance being introduced for first reading by title
only.
AYES: Council Members Barnett, Borcalli,
Obuchon, Ramsey, and Tallerico
NOES: None
ABSENT: None
Council Member Obuchon read the title of Ordinance
No.352-2000 and moved introduction for first reading, motion seconded by
Council Member Borcalli, said ordinance being in the words and figures
following:
ORDINANCE NO 352-2000
AN ORDINANCE OF THE CITY OF WEED
ADDING CHAPTER 1216 TO TITLE 16
OF THE WEED MUNICIPAL CODE
THE
CITY COUNCIL OF THE CITY OF WEED DOES ORDAIN AS FOLLOWS:
Section
1. Chapter 12.16 is hereby added to
Title 16, of the Weed Municipal Code to read as follows:
Sections:
12.16.010 Short title
12.16.020 Definitions
12.16.030 Grant of franchise
12.16.040 Exclusions
12.16.050 Term of franchise
12.16.060 Franchise fee
12.16.070 Payment schedule
12.16.080 Audit
12.16.090 Change of franchise fee and other franchise
terms
12.16.100 Company to report
12.16.110 Contract obligation
12.16.120 Supervision
12.16.130 Adequate supply at lowest reasonable cost
12.16.140 City review of construction design
12.16.150 Compliance with city requirements
12.16.160
Installation and maintenance of
company facilities
12.16.170 Excavation
and construction
12.16.180 Obligations
regarding company facilities
12.16.190 Relocation
of company facilities
12.16.200 Noninterference
with public works
12.16.210 City
regulation
12.16.220
Compliance with California Public Utilities Commission
(P.U.C.) regulations
12.16.230 Restoration
of service
12.16.240 Inspection,
audit and quality control
12.16.250 Continued
compliance with air and water pollution laws
12.16.260 Technological
improvements
12.16.270 Service
to new areas
12.16.280 City
not required to advance funds
12.16.290 Reports
on company operations
12.16.300 Copies
of tariffs, all P.U.C. filings
12.16.310 Underground
conduit
12.16.320 Annexation
to the city
12.16.330 City
held harmless
12.16.340 Notice
to company
12.16.350 Financial
responsibility
12.16.360 Payment
of expenses incurred by city in relation to ordinance
12.16.370 Breach
of contract
12.16.380 Consent
of city required
12.16.390 Transfer
fee
12.16.400 Transportation
of gas for city use
12.16.410 City's
right to purchase or condemn
12.16.420 Negotiated
purchase price or condemnation award
12.16.430 Continued
cooperation by company
12.16.440 Limitations
on company removal
12.16.450 Forfeiture
12.16.460 Judicial
review
12.16.470 Other
legal remedies.
12.16.480 Continued
obligations.
12.16.490 Right
of first purchase.
12.16.500 Changing
conditions
12.16.510 Amendment
to franchise
12.16.520 No
waiver
12.16.530 Successors and assigns
12.16.540 Representatives
12.16.550 Reimbursement of city costs
12.16.560 Severability
12.16.570 Entire agreement
12.16.580 Third parties
12.16.590 City approval
12.16.600 Company approval
Section
12.16.010 Short Title. The
ordinance codified in this chapter shall be known as the City of Weed Gas
Franchise Ordinance.
Section
12.16.020 Definitions. For the purpose of this franchise, the following
words and phrases shall have the meaning given in this section. When not inconsistent with the context,
words used in the present tense include the future tense, words in the plural
number include the singular number, and words in the singular number include
the plural number. The words
"shall" or "will" are mandatory and "may" is
permissive. Words not defined in this
section shall be given their common and ordinary meaning.
"City"
means the municipal corporation designated as the City of Weed, located in the
County of Siskiyou, and includes the territory that currently is, or may in the
future be, included within the boundaries of the City of Weed.
"Company"
means Blue Star Gas, and its successors and assigns, but does not include its
affiliates, subsidiaries or any other entity in which it has an ownership
interest.
"Council"
or "city council” means the legislative body of the City of Weed.
"Facilities"
means all physical components of the company which are reasonably necessary to
provide gas into, within and through the city for transportation, distribution
and sale and include, but are not limited to, plants, works, systems,
transmission and distribution structure, lines, equipment, pipes, mains,
conduit, gas compressors and meters, underground lines, wires and cables.
"Gas"
or "natural gas" means such gaseous fuels as natural, artificial,
synthetic, liquefied natural, liquefied petroleum, manufactured, or any mixture
thereof.
"Gas
distribution facilities" means that portion of the company's gas system
reasonably necessary to provide for the transportation and sale of gas within
the city, and includes the physical plant from the down side of the regulator
station to the point of delivery of the customer and all devices connected to
that system.
"Official
city representative" or "city administrator" means the city
administrator, his successor in office or any officer or employee of the city designated to act as the official city
representative by the city administrator, his successors, or said officer, each
of whom shall be authorized to act on behalf of the city under this franchise.
"Park"
or "park land" means a recreation area within the city owned,
maintained and designated as a park or park land by the city council.
"Public
or dedicated easements" refer to and are public easements created and
available for use by investor-owned or other public utilities for their
facilities.
"Public
utilities commission" means the Public Utilities Commission of the State
of California ("Commission" or "P.U.C.") or other authority
succeeding to the regulatory powers of the Public Utilities Commission of the
State of California.
"Residents"
means all persons, businesses, industry, governmental agencies and any other
entity whatsoever, presently located or to be hereinafter located, in whole or
in part, within the territorial boundaries of the City of Weed.
"Revenues"
means those amounts of money that the company receives from its customers, or
from any source, for use of its facilities within the city by other entities
and from the sale of gas and the transportation of gas.
"Streets
and public places" means streets, alleys, viaducts, bridges, highways,
avenues, boulevards, roads, lanes and public rights-of-way that are located in
the city.
Section
12.16.030 Grant of franchise. The city
hereby grants to the company, for the period specified herein, and subject to
the conditions, terms and provisions contained in this ordinance, a
nonexclusive right to furnish, sell and distribute gas within the city, to the
city, and to all residents of the city.
Subject to the conditions, terms and provisions contained in this
ordinance, the city also hereby grants to the company a nonexclusive right to
acquire, construct, install, locate, maintain, operate and extend into, within
and through the city all facilities reasonably necessary to furnish, sell and
distribute gas within the city, and a nonexclusive right to make reasonable use
of the streets and other public places as may be necessary to carry out the
terms of this ordinance, subject to the city's prior right of usage for
municipal purposes and subject to zoning, subdivision, permit and building code
requirements. These rights shall extend
to all areas of the city as it is now constituted, and to additional areas as
the city may, increase in size by annexation or otherwise. The city and the company do not waive any of
their rights under the statutes and constitution of the State of California and
the United States, except as otherwise specifically set forth herein.
12.16.040 Exclusions. A. This ordinance does not grant Blue Star Gas the right, privilege
or authority to engage in the community antenna (cable) television business.
B. The right to use and/or occupy said public
streets, alleys, viaducts, bridges, roads and public places for the purposes set forth herein is not, and shall not be deemed
to be, an exclusive franchise, and the city reserves the right to itself to
make or grant a similar use of public streets and other public places to any
other person, firm or corporation.
C. This ordinance does not grant Blue Star Gas
the right, privilege or authority to use or occupy any parks or park land of
the city currently designated or as in the future may be so designated, except
to the extent that company is currently using or occupying said parks or park
land and as otherwise authorized in writing by the city. Company shall not expand its use or
occupancy of said parks or park land except by specific written authorization
of city, provided, however, that nothing herein contained shall limit or
restrict company's right to maintain, renovate, repair or replace any such
facilities currently occupying said parks or park land.
D. The city retains the following rights in regard to this franchise: (1.)
Except as otherwise specifically provided herein, to use, control and
regulate, through the exercise of its police power, the use of city streets,
public easements and other public places, and the space above and beneath them.
(2). To impose such other regulations as may be
determined by the city council to be necessary in the exercise of its police
power to protect the health, safety and welfare of the public.
12.16.050 Term of Franchise. This
franchise shall take effect on the 12th day of August, 2000,
provided it has been approved by majority vote of the city council, and
provided further that the company has
filed with the city clerk a written acceptance of the terms in a form approved
by the city attorney. If the ordinance
is not so approved nor so accepted by the company, the ordinance shall be null
and void. The term of this franchise
shall be for twenty (20) years, beginning with the effective date of this
ordinance and expiring on the 12th day of August 2020. The provisions of this franchise shall
supersede all the conditions of the existing ordinance, except that the company
shall discharge and pay on or before August 12, 2020, all obligations and sums
that shall have accrued under the provisions of the franchise being terminated.
12.16.060
Franchise fee. In
consideration for the grant of this franchise, the company shall pay the city a
sum equal to the three percent (3%) Broughton Formula or one percent whichever
is greater. Payment of the (1%) of all
revenues received from the sale of gas, and from the transportation of gas to
customers within the city, and from revenues accruing to the company from any
use of its utility facilities within the city by other entities, whichever is
greater. Payment of the franchise fee
shall not exempt the company from any lawful taxation upon its property, or
from sales and use taxes and from fees and taxes that are uniform and generally
applicable to businesses alike.
12.16.070 Payment schedule. Unless
otherwise specifically provided herein, payment of the franchise fee accruing
after the effective date of this ordinance shall be made in annual installments
not more than thirty (30) days following the close of the year for which payment is to be made for the franchise
fees resulting from the sale of gas and from the transportation of gas. Payment for the franchise fees owed on
revenues received from the use of the company's facilities within the city by
other entities shall be made within ninety (90) days following the close of the
calendar year for which payment is to be made.
All payment shall be made to the city director of finance.
12.16.080 Audit. The city administrator, or
other authorized city representative, shall have access to the books of the
company for the purpose of auditing or checking to insure that the franchise
fee has been correctly computed and paid.
12.16.090 Change of franchise fee and other franchise
terms.
Once during each calendar
year of the franchise, the city council, upon giving thirty (30) days notice to
the company, may review and change the franchise fee and other significant
financial benefit the city may be entitled to receive as a part of the
franchise. The council may change the
franchise fee payments, or other provision of this franchise to cause the city
to receive a franchise fee, or other significant financial benefit, under this
franchise equivalent to the franchise fee or other significant financial
benefit that the company may pay to (or obligate itself for), and other city or
town in any other franchise under which the company renders any gas service.
12.16.100 Company to report. Company
shall report to the city within sixty (60) days of execution, the terms of any
franchise or of any change of franchise in any other municipality that may be greater than or different from the
franchise fee, or other significant financial benefit to the city contained in
this franchise. If the city council
decides the franchise fee or other significant financial benefit should be
changed or incorporated into the franchise, it shall provide for such change by
ordinance; provided, however, that any changed franchise fee or other
significant financial benefit shall not be higher than the highest franchise
fee or other significant financial benefit paid by the company to any
municipality. Any such change of
franchise fee or other significant financial benefit shall not be considered an
amendment, renewal or enlargement of this franchise.
12.16.110 Contract obligation. This
franchise ordinance constitutes a valid and binding contract between the
company and the city. In the event that
the franchise fee specified in this ordinance is declared illegal,
unconstitutional or void for any reason by any court or other proper authority,
the company shall be contractually found to pay monthly an occupation tax or
fee to the city in an aggregate amount that would be, as near as practical,
equivalent to the amount which would have been paid by the company as a
franchise fee hereunder.
12.16.120 Supervision. The city
administrator, or official city representative, is hereby designated the
official of the city having full power and authority to take appropriate action
for and on behalf of the city and its inhabitants to enforce the provisions of
this franchise, and to investigate any alleged violations or failure of the
company to comply with the provisions hereof, or to adequately and fully
discharge its responsibilities and obligations hereunder. The failure or omission of said official
city representative to so act shall not constitute any waiver or estoppels nor
limit independent action by other city officials. In order to facilitate such duties of the said official city
representative, the company agrees:
A. To allow said
official city representative reasonable access to any part of the company plant,
works and systems, and that said city official may make and supervise tests to
determine the quality of the gas supplied the customers of the company, with
particular reference to the standards of service provided herein, and in the
rules and regulations prescribed by, and the tariffs of the company filed with
the Public Utilities Commission from time to time.
B.
That the official city representative may investigate and convey to the
company and to the Public Utilities Commission any complaint of any customer of
the company within the city with respect to the quality and price of gas
service and the appropriate standards thereof.
C. Unless otherwise requested, to submit to
said official city representative copies of all filings which the company makes
with the Public Utilities Commission, including, but not limited to, its annual
report, all advice letters and applications, together with supporting testimony
and exhibits. In addition, irrespective
of whether the city intervenes in a proceeding before the Public Utilities
Commission, the company, upon the city's
reasonable notice, not to exceed three (3) business days, will provide the city
access to all non-confidential documents provided other parties in connection
with such proceeding.
D. To grant said official city representative
reasonable access to the books and records of the company insofar as they
relate to any matters covered by this Franchise; to provide said city official
with such reasonable and necessary reports containing or based on information
readily obtainable from the company's books and records as the city may from
time to time request with respect to the gas service supplied under this
Franchise.
E. To meet with said official city
representative at least annually for the purpose of reviewing, implementing,
and/or modifying procedures and methods mutually beneficial for the efficient
processing of computerized bills rendered by the company to the city.
F. To meet at least annually with said official
city representative to share information useful in coordinated management,
operation and repair of the facilities of the company and the operations and
property of the city
12.16.130 Adequate supply at lowest reasonable cost. The
company shall at all times take all reasonable and necessary steps to assure an
adequate supply of gas to its customers at the lowest reasonable cost
consistent with long-term reliable supply.
If the supply of gas to its customers should be interrupted, the company
shall take all necessary and reasonable actions to restore such supply at the
earliest practicable time.
12.16.140 City review of construction design. Except
in emergency circumstances, unless otherwise requested, prior to construction
of any significant gas facilities or, of a building or similar structure within
the city, the company shall furnish to the city a description of the type and
proposed location thereof. In addition,
upon request, the company shall assess and report on the impact of its proposed
construction on the city environment.
Such plans and reports may be reviewed by the city to ensure, inter
alia, ( 1) that all applicable laws including building and zoning codes and air
and water pollution regulations are complied with, (2) that aesthetic and good
planning principles have been given due consideration and (3) that adverse
impact on the environment has been minimized.
The company shall comply with all regulatory requirements of the city
and shall incorporate all other reasonable changes requested by the city.
12.16.150 Compliance with city requirements. The
company will comply with all city requirements regarding curb and pavement
cuts, excavating, digging and related construction activities, as well as with
reasonable direction regarding the placement of supply lines and other similar
facilities. Representatives of the city
and the company shall meet annually to discuss annual and long-term planning
for capital improvement projects contemplated by each within the city. The company shall use its best efforts to
include within its capital improvement projects the plans of the city relating
to same. The company and the city shall
exchange copies of their reports regarding annual and long-term planning for
capital improvement projects with descriptions of construction activities
including, to the extent known, the timing and method of construction, and
shall exchange said copies within thirty (30) days after issuance thereof. Except for emergencies, the city will
require that all installations be coordinated with the city's municipal
planning and street improvement programs.
The official city representative shall be the city's agent for
inspection and for compliance with city ordinances and regulations on any such
projects.
12.16.160
Installation and maintenance of company facilities. Except for emergencies, the construction,
excavation, installation, maintenance, renovation, repair and replacement of
any facilities by the company shall be subject to permitting, inspection and
approval of location by the official city representative. Such regulation shall include, but not be
limited to the following matters: location of facilities in the streets, alleys
and dedicated easements; disturbance and reconstruction of pavement, sidewalks
and surface of streets, alleys, dedicated easements and driveways. All company facilities shall be installed
so as to cause a minimal amount of interference with such property. Company facilities shall not interfere with
any water mains or sewer mains or any other municipal use of the city's streets
and rights-of-way. The company shall
erect and maintain its facilities in such a way so as to minimize interference
with trees and other natural features and vegetation. The company shall keep in good working order all facilities
constructed, erected or used within the city.
The company and all subcontractors shall comply with all local
regulations and ordinances.
12.16.170
Excavation and construction.
All construction, excavation, maintenance and repair work done by the
company shall be done in a timely and expeditious manner that minimizes the
inconvenience to the public and individuals.
All such construction, excavation, maintenance and repair work done by
the company shall comply with all applicable codes of the city, and the company
shall be responsible for obtaining all applicable permits. All public and private property disturbed
by company construction or excavation activities caused as a result of work
within the streets and public easements shall be promptly restored by the
company at its expense to current code and planning requirements. All restoration work under this section
shall be subject to inspection by the official city representative, and
compliance by the company with reasonable remedial action required by said
official pursuant to the inspection.
The company shall comply with the city's requests for reasonable and
prompt action to remedy all damage to public and private property caused as a
result of the company's construction, excavation, maintenance and repair work
within the streets and public easements.
All such remedial work shall be performed at the company's expense. If the company fails to perform its
restoration and remediation of public property as required within sixty (60)
days after notice by the city, or such larger time period as may be mutually
agreed to by the parties (agreement to which by the city shall not be
unreasonably withheld), the city shall have the right to perform said
restoration and remediation at company's expense.
12.16.180
Obligations regarding company facilities. The company shall install, repair, renovate and replace its
facilities with due diligence in a good and workmanlike manner and the
company's facilities will be of sufficient quality and durability to provide
adequate and efficient gas service to the city and its residents.
12.16.190 Relocation of company facilities. If at
any time the city requests the company to relocate any facility installed or
maintained in streets, alleys, public rights-of-way or dedicated easements, pursuant
to this franchise or previous franchises, in order to permit the city to make
any public use of rights-of-way, easements or streets, to construct any public
improvement or to build any public project, such relocation shall be made by
the company at its expense and shall be completed within a reasonable time not
to exceed ninety (90) days from the date on which the city requests that such
relocation work commence; provided however, that such time period may be
enlarged with the approval of the city, which approval shall not be
unreasonably withheld. The company
shall, in any event, be granted an extension of time for completion of the
relocation equivalent to any delay caused by conditions not under its control. Following relocation of company facilities,
all property disturbed by said relocation shall be restored by the company at
its expense. Except where required to serve the city as a
customer, nothing herein contained shall be construed to impose any obligation
upon the city to make any payment for any relocation of company's facilities
whether located within, or without, said designated areas. Nothing herein contained shall be construed
to require relocation of company's facilities within private easements or other
privately held property rights of the company.
12.16.200 Noninterference with public works. The
company's facilities shall not interfere in any way with the city's
telecommunication facilities, traffic signal lights, or with water or sewer
mains or other municipal uses of streets and rights-of-way. All such facilities shall be installed on
both city and private property, so as to cause a minimum amount of interference
with same.
12.16.210 City regulation. The city
expressly reserves, and the company expressly recognizes, the city's right and
duty to adopt, from time to time, in addition to the provisions herein
contained, such charter provisions, ordinances and rules and regulations as may
be deemed necessary by the city in the exercise of its police power to protect
the health, safety and welfare of its citizens and their properties.
12.16.220 Compliance with California Public Utilities
Commission (P.U.C.) regulations. The company shall assure that the gas it
distributes meets with the minimum standards promulgated by the California
Public Utilities Commission, and the company shall keep on file with the city
copies of P.U.C. rules regulating the service of gas utilities, and tariff
provisions of the company setting minimum standards and gas service, as the
same may be amended from time to time, and the city shall have access to all
records of the company monitoring compliance with such standards. Prior to final adoption by the city of this
franchise ordinance, the company shall file with the P.U.C. such amendments to
its tariffs as may be necessary to make its tariff provisions compatible with
the provisions of this ordinance, and shall report to the city any changes that
have been made for this purpose.
12.16.230
Restoration of service. In
the event the company's gas system is partially or wholly destroyed or
incapacitated, the company shall use due diligence to restore its system to
satisfactory service within the shortest practicable time.
12.16.240 Inspection, audit and quality control. The city
shall have the right to inspect any portion of the company's system used to
serve the city and its residents, at all reasonable times. The city shall also have the right to
inspect and conduct an audit of company records relevant to compliance with any
terms of this ordinance at all reasonable times. The company agrees to cooperate fully with the city in conducting
the inspection and/or audit, and to correct any discrepancy affecting the
city's interest in a prompt and efficient manner.
12.16.250 Continued compliance with air and water
pollution laws. The
company shall use its best efforts to take measures which will result in its
facilities and operations meeting the standards required by applicable city,
county, state and federal air and water pollution laws and laws regulating
transportation of hazardous materials.
Upon the city's request, the company will provide the city with a status
report of such measures.
12.16.260
Technological improvements.
The company shall generally introduce and install, as soon as practicable,
technological advances in its equipment and service within the city when such
advances are technically and economically feasible, and are safe and beneficial
to the city and its residents. Upon
request by the city, the company shall review and promptly report advances that
have occurred in the gas utility industry that have been incorporated into the
company's operations in the city in the previous year, or will be so
incorporated within the six (6) months following completion of said report.
12.16.270
Service to new areas. If,
during the term of this franchise the boundaries of the city are expanded, the
company shall extend service to residents of the newly incorporated areas in
accordance with the company's extension policy at the earliest practicable
time. Service to annexed areas shall be
in accordance with the terms of this franchise ordinance, including payment of
franchise fees.
12.16.280 City
not required to advance funds. Upon
receipt of the city's authorization for billing and construction, the company shall extend its
facilities to provide gas to the city for municipal uses within or outside the
city and within the company certificated service area, without requiring the
city to advance funds prior to construction, pursuant to applicable tariffs.
12.16.290 Reports on company operations. The
company shall submit reasonable financial and other necessary reports
containing, or based on, information available from the company's books and
records as the city may from time to time request with respect to the
operations of the company under this franchise, provided that such information
can be provided at a reasonable cost.
Such reports may be changed from time to time as may be mutually
agreeable between the city and the company.
Initially, the city requests the following reports on or before May 1 of
each year:
A. On an annual basis, the return earned by the
company on operations, and the rate base used for calculation of such return as
is currently provided or as may in the future be provided to the Public
Utilities Commission in conjunction with various adjustment clause provisions.
B. A list of all real property and leasehold
interests in real property owned by the company within the municipal boundaries
of the city as the same may be changed from time to time, excepting public and
other easements. Upon request by the
city, such list shall include the legal description and land area of each
listed property, and shall be accompanied by a map showing the location of each
listed property.
C. Short-term (less than three years) and
long-range (over three years) plans for all capital improvements, construction
and excavation within the city or affecting service to the city and its
residents.
12.16.300 Copies of tariffs, all P.U.C. filings. Unless
otherwise requested, the company shall file with the city all tariffs, rules,
regulations and policies approved by the California Public Utilities Commission
relating to service by the company to the city and its residents. Upon request by the city, the company shall
provide the city with copies of filings affecting said service that it makes
with the California P.U.C.
12.16.310
Underground conduit. If the company installs new gas underground
pipeline or opens a trench or replaces such pipeline, the company shall provide
adequate advance notice to permit additional installation of similar conduit
for the city. If the city wants
additional similar conduit installed, it will so notify the company and provide
similar conduit at its expense to the company, which will install it without
further expense to the city provided that such action by the city will not
unnecessarily interfere with the company's facilities or delay the
accomplishment of the project.
12.16.320
Annexation to the city. When any property owned by the company is or
becomes eligible for voluntary annexation to the city, and is not
simultaneously eligible for voluntary annexation to another municipal
corporation, the company shall petition to annex the same to the city upon
request made by the city, provided that no condition of such annexation shall
impair the company's ownership or then-existing use of its property and water
or water rights for public utility purposes.
Except as herein provided, the company agrees to meet all terms and
conditions imposed upon the annexation by the city that are no more stringent
than those imposed generally upon property owners seeking annexation of their
land to the city. The company shall be
exempt from a public donation of land, money or water rights arising from such
mandatory annexation under this section to the extent that the land being
annexed is committed, dedicated and being fully utilized by facilities directly
involved in distributing gas service under this ordinance, and provided further
that said exemption from public donation shall not extend to any unimproved
land or land not so directly committed, dedicated and currently used.
12.16.330 City
held harmless. The company shall
construct, maintain and operate its facilities in a manner which provides
reasonable protection against injury or damage to persons or property;
provided, however, said obligation of the company hereunder shall not increase
or decrease its liability on third party claims; and provided further that the
company's obligation to the city hereunder shall not be diminished by said
exception. The company shall save the
city harmless and indemnify the city from and against all lawsuit, liability,
damage, claims, demands, judgment and losses whatsoever in nature, and reimburse
the city for all its reasonable expenses, arising out of the operations of the
company within the city, and the securing of and the exercise by the company of
the franchise rights granted in this ordinance, including any third party
claims, administrative hearings and litigation. None of the city expenses reimbursed by the company under this
section shall be surcharged. Nothing
herein contained shall obligate the company to save the city harmless and
indemnify the city to the extent any lawsuits, liability, damage claims,
demands, judgments and losses shall have been found, by final decision of a
court of competent jurisdiction in an action where the city is a party, to have
arisen out of or in connection with any negligent act or failure to act of the
city or of its officers, agents or employees.
12.16.340
Notice to company. Within
sixty (60) days after receipt of the same by the city attorney, the city will
provide notice to the company of the pendency of any claim or action against
the city arising out of the exercise by the company of its franchise
rights. The company will be permitted
at its own expense, to appear and defend, or to assist in defense of such
claim.
12.16.350
Financial responsibility.
At the time of the execution of this ordinance, and from time to time at
the city's request, not more frequently than annually, the company shall submit
to the city attorney as a confidential document, proof of its ability to meet
its obligations under this ordinance, including its ability to indemnify the
city as required by Section 12.16.330.
This proof may take the form of insurance coverage, adequate funding of
self-insurance, or the provision of a bond.
Company shall supply the city with a list of its insurance companies
with the types of coverage. Said list
shall be kept current by annual revisions as of January 1 of each year during
the term of the franchise. The city may
require, from time to time, and the company agrees to provide, additional
reasonable funding of the company's indemnification obligations as a self
-insured, if company is acting as a self -insured. Nothing herein contained shall create any right in any third
party or cause the city to be liable to any party for a failure so to act.
12.16.360 Payment of expenses incurred by city in
relation to ordinance. At the
city's option, the company shall pay in advance or reimburse the city for
expenses incurred in publication of notices, publication and codification of
ordinances, and photocopying of documents arising from the negotiations of the
franchise. None of the city expenses
reimbursed by the company under this section shall be surcharged against city
ratepayers. Nothing contained in this section
shall limit the company's indemnification obligation to the city under Section
12.16.330.
12.16.370 Breach of contract. In the
event the company fails to fulfill a substantial obligation under this
ordinance, the city shall have a breach of contract claim against the company,
in addition to any other remedy provided by law or elsewhere in this franchise.
12.16.380 Consent of city required. The
company shall not sell, transfer or assign this franchise or any rights under
this franchise to another, by stock
exchange or otherwise, excepting only corporate reorganizations of the company
not involving a third party, unless the city shall approve in writing such
sale, transfer or assignment of the rights herein created. Approval of the sale, transfer or
assignment shall not be unreasonably withheld.
The charging or collection of the transfer fee hereinafter set forth is
conclusively deemed reasonable.
12.16.390 Transfer fee. In order
that the city may share in the value this franchise adds to the company's
operations, any such transfer or assignment by the company of rights under this
franchise requiring city approval shall require that the transferee promptly
pay to the city a fee of twenty-five thousand dollars ($25,000).
12.16.400
Transportation of gas for city use.
Upon request of the city, the company agrees to transport natural gas
purchased by the city for use in city facilities pursuant to separate contracts
with the city.
Charges
to the city by the company for any service to transport gas shall not exceed
the lowest charge for similar or identical service provided for transportation
of gas by the company to any other similarly-situated customer or consumer of
the company, and provided further that no franchise fee shall be charged
against the city.
12.16.410 City's right to purchase or condemn. The
right of the city to construct, purchase or condemn any public utility works or
ways, and the right of the company in connection therewith, as provided by the
California Constitution and Statutes, are hereby expressly reserved.
12.16.420
Negotiated purchase price or condemnation award. Upon the exercise of the city's option to
purchase, the parties shall negotiate in good faith to determine a mutually
acceptable purchase price. No value
shall be given to the franchise or to the public rights-of-way. If the city and company cannot reach
agreement as to the purchase price or acceptable payment terms within ninety
(90) days after commencement of negotiations, the city may commence
condemnation proceedings, and each party shall have the rights provided by law
relating to condemnation; provided, however, no award shall be made for the
value of the franchise or public rights-of -way.
12.16.430 Continued cooperation by company. In the
event the city exercises its option to purchase or condemn, the company agrees
that it will continue to supply any service it supplies under this ordinance,
in whole or in part, at the city's request, for the duration of the term of
this ordinance. The company's
facilities shall be available for continued service until nine (9) months after
final order is entered in a condemnation proceeding, or the effective date of a
purchase agreement between the parties; provided, however, said obligation to
maintain the facilities shall not exceed a twenty-four (24) month period after
the termination of the franchise. The
company shall continue to provide service pursuant to the terms of this
ordinance for said twenty-four (24) months until the city has either purchased
or condemned the company's facilities, or alternative arrangements have been
made to supply gas to the city and its residents, whichever date shall earlier
occur .The city shall not pay for any services no longer required.
The
company shall cooperate with the city by making available then-existing
pertinent company records that are not privileged to enable the city to
evaluate the feasibility of acquisition by the city or company facilities. The company shall not be obligated to
conduct studies or accrue data without reimbursement by the city, but will make
such studies if reimbursed its costs for the same. The company shall take no action that could inhibit the city's
ability to effectively or efficiently use the acquired systems. At the city's request, the company shall
supply gas for use by the city in the city-owned system.
12.16.440 Limitations on company removal. If at
the time of termination of the franchise granted under this ordinance, no
renewal has been negotiated between the city and the company, the company shall
not be required nor shall it have a right to remove its facilities immediately
from the streets, public ways, and public or dedicated easements. At the city's request and within a
reasonable time not to exceed nine (9) months, the company shall remove from
the public streets, ways, and dedicated easements at the company's expense all
facilities belonging to the company located above the surface of the ground,
which are not purchased by the city at the termination of the franchise. Further, the company, at the request of the
city, shall remove at the company's expense
all underground facilities which are not purchased by the city within nine (9)
months after the receipt by the company of a written notice from the official
city representative that said underground facilities constitute a hazardous
condition, or interfere with a municipal use of the subsurface of said streets,
ways, and dedicated easements. All
public property shall be restored by the company to its former condition after
said removal. The company need not
remove any property from said public streets, ways and dedicated easements that
it shall continue to use and maintain pursuant to contractual arrangements with
the city.
12.16.450 Forfeiture. If the company fails to
perform any of the terms or conditions of this franchise, and such failure is
not a condition of "force majeure," the city, acting by and through
its council may determine, after hearing, that such failure is of a substantial
nature. Upon receiving notice of such
determination, the company shall have a reasonable time, not to exceed six (6)
months within which to remedy the violations unless the parties otherwise agree
in writing. If after such reasonable
time corrective actions have not been successfully taken, the city, acting by
and through its council, shall determine whether any or all rights and
privileges granted the company under this franchise shall be forfeited. For the purposes of this section, the term
"force majeure" shall mean acts of God, strikes, lockouts, acts of public
enemies, wars, blockades, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, storms, floods, washouts, civil disturbances,
explosions, inability with
reasonable diligence to obtain materials, and any other causes not within the
control of the party claiming a suspension, which by the exercise of due
diligence such party shall not have been able to avoid or overcome.
12.16.460 Judicial review. Any
such declaration of forfeiture shall be subject to judicial review as provided
by law.
12.16.470 Other legal remedies. Nothing
herein contained shall limit or restrict any legal rights that the city or the
company may possess arising from any violation of this franchise.
12.16.480 Continued obligations. Upon
forfeiture, the company shall continue to provide service to the city and its
residents until the city makes alternative arrangements for such service. If the company fails to provide continued
service, it shall be liable for damages to the city and its residents.
12.16.490 Right of first purchase. If at
any time during the term of this franchise, the company proposes to sell or
dispose of any of its real property located within the city, it shall grant to
the city the right of first purchase of same.
The company shall obtain a qualified appraisal by a qualified appraiser
on any such real property, and the city shall have sixty (60) days after
receipt of the qualified appraisal in which to exercise the right of first
purchase at the appraised value by giving written notice to the company. Should the city not provide the required
written notice, the company may proceed to negotiate with others for the sale
of such property provided that the
company may not sell such property for an amount less than ninety-five percent
(95%) of the appraised value without first providing the city an opportunity to
purchase such property at such lesser price, in which event the city must
notify the company in writing within thirty (30) days if it wishes to purchase
such property. It is understood that
nothing in this paragraph shall preclude the company from transferring real
property to a subsidiary or affiliate without first affording the city the
rights referred to above, provided that, if the transferee proposes to sell or
dispose of such real property within one year, it shall not do so without first
affording the city the rights referred to above.
12.16.500 Changing conditions. The
company and the city recognize that many aspects of the gas utility businesses
are currently the subject of discussion, examination and inquiry by different
segments of industry and affected regulatory authorities, and that these
activities may ultimately result in fundamental changes in the way the company
conducts its business and meets its service obligations. In recognition of the present state of uncertainty
respecting these matters, the company and the city each agree on request of the
other, during the term of this franchise, to meet with the other and discuss in
good faith whether it would be appropriate, in view of developments of the kind
referred to above during the term of this franchise, to amend this franchise or
enter into separate, mutually satisfactory arrangements to effect a proper
accommodation of any such developments.
12.16.510 Amendment to franchise. At any
time during the term of this franchise, the city, through its city council, or
the company may propose amendments to this franchise by giving thirty (30) days
written notice to the other party of the proposed amendment(s) and both parties
thereafter, through their designated representatives, will within a reasonable
time negotiate in good faith in an effort to agree upon mutually-satisfactory
amendment(s). The word
"amendment" as used in this section does not include a change in
franchise fee or other franchise term authorized in Section 12.16.090.
12.16.520 No Waiver. Neither the city nor the
company shall be excused from complying with any of the terms and conditions of
this franchise by any failure of the other, or any of its officers, employees,
or agents, upon anyone or more occasions to insist upon or to seek compliance
with any such terms and conditions.
12.16.530 Successors and assigns. The
rights, privileges, franchises, and obligations granted and contained in this
ordinance shall inure to the benefit of and be binding upon Blue Star Gas
Company, its successors and assigns as same may succeed to the rights of the
company pursuant to Section 12.16.380.
12.16.540 Representatives. Both
parties shall designate from time to time in writing, representatives for the
company and the city who will be the person(s) to whom notices shall be sent
regarding any action to be taken under this ordinance. Notice shall be in writing and forwarded by
certified mail or hand delivery to the persons or addresses as hereinafter
stated, unless the names and addresses are changed at the written request of
either party, delivered in person, or by certified mail. Until any such change shall hereafter be
made, notices shall be sent to the city administrator and to the company's
address as follows: City Administrator,
City of Weed, 550 Main Street, P.O. Box 470, Weed, CA 96094; Blue Star Gas, P. O. Box 1717, Mt. Shasta,
CA 96067.
12.16.550
Reimbursement of city costs. In the event the city institutes litigation
against the company for a breach of this ordinance or for an interpretation of
the ordinance, and the city is the prevailing party, the company shall
reimburse the city for all costs related thereto, including reasonable
attorneys' fees.
12.16.560 Severability. Should
anyone or more provisions of this ordinance be determined to be illegal or
unenforceable, all other provisions nevertheless shall remain effective;
provided, however, the parties shall forthwith enter into good faith
negotiations and proceed with due diligence to draft replacement provisions
that will achieve the original intent of the parties hereunder.
12.16.570
Entire Agreement. This
ordinance constitutes the entire agreement of the parties. There have been no representations made
other than those contained in this ordinance.
12.16.580 Third
parties. Nothing herein contained shall be construed
to provide rights to third parties.
12.16.590 City
approval. This grant of franchise
shall not become effective unless approved by a majority vote of the city council.
12.16.600
Company approval. Company
shall file with the city clerk its written approval of this franchise and of
all of its terms and provisions at least thirty (30) days prior to public
hearings set for consideration of the ordinance by the city council. Company shall file with the city clerk its
written ratification thereof within thirty (30) days after the approval of this
franchise by the city council. The
acceptance and ratification shall be in form and content approved by the city
attorney. If company shall fail to
timely file its written acceptance or ratification as herein provided, this
franchise shall be and become null and void…”
Section
2. This ordinance shall take
effect and be in force thirty (30) days after its passage.
Section 3.
This ordinance shall be printed in the
Weed Press within fifteen (15) days after its passage.”
Upon roll call, the vote was:
AYES: Council Members Barnett, Borcalli,
Obuchon, Ramsey, and Tallerico
NOES: None
ABSENT: None
City
Administrator Wilson reported receipt of Contract Change Order #6 for the Vista
Drive project, and Public Works Director Sharp explained that extra excavation
was required due to design problems at the retention basin, and for the extra
work that was necessary on the tie-in for the water line extension.
Council
Member Borcalli moved approval of Contract Change Order #6, and Council Member
Tallerico seconded the motion.
AYES: Council Members Barnett, Borcalli,
Obuchon, Ramsey, and Tallerico
NOES: None
ABSENT: None
F. Resolution of The City Council Adopting
an Appropriations Limit for Fiscal Year 2000/2001
City
Administrator Wilson reviewed that the City is annually required to adopt an
appropriations limit that represents the maximum amount of specific revenues
that the City can receive.
Council Member Tallerico moved, seconded by Council
Member Borcalli, that the reading in full of the body of Resolution No.12-2000
be waived, said resolution being introduced and adopted by title only.
AYES: Council Members Barnett, Borcalli,
Obuchon, Ramsey, and Tallerico
NOES: None
ABSENT: None
Council Member Tallerico read the title of Resolution
No.121-2000 and moved adoption, seconded by Council Member Borcalli, said
resolution being in the words and figures following:
RESOLUTION NO. 12-2000
A
RESOLUTION OF THE CITY COUNCIL
ADOPTING
AN APPROPRIATIONS LIMIT
FOR
FISCAL YEAR 2000/2001
WHEREAS, Article XIIIB of the California Constitution
requires establishing an appropriations limit based on fiscal year 1978-79 to
regulate expenditures from proceeds of taxes; and
WHEREAS, State law requires this limit to be adjusted
each year using the increase in the California per capita personal income and
Siskiyou County population growth; and
WHEREAS, the appropriations limit of $2,782,259 for
the 2000/2001 fiscal year falls within the legally acceptable limit as defined
by State law;
NOW, THEREFORE, BE IS RESOLVED that the City Council
of the City of Weed adopts $2,782,259 as the appropriations limit for fiscal
year 2000-2001.
Upon roll call, the vote was:
AYES: Council Members Barnett, Borcalli,
Obuchon, Ramsey, and Tallerico
NOES: None
ABSENT: None
City Administrator Wilson
recommended the order of the agenda be amended to accommodate individuals in
the audience that are affected by the item in closed session.
Council Member Obuchon moved,
seconded by Council Member Borcalli, to amend the order of the agenda as
requested.
AYES: Council Members Barnett, Borcalli,
Obuchon, Ramsey, and Tallerico
NOES: None
ABSENT: None
City Attorney King reported that Mr.
Caldwell and his legal counsel are in the audience for the closed session item
that is an attempted settlement. Mr.
King recommended the Council accept input from Mr. Caldwell or his attorney,
but cautioned the Council not to respond.
Mr. Caldwell’s attorney, Bob Rehberg, came before the
Council to explain that they filed a suit to have the courts resolve an issue
regarding riparian rights, and now an agreement has been drafted for Council
review.
Council Member Borcalli moved,
seconded by Council Member Tallerico, to adjourn to closed session.
AYES: Council Members Barnett, Borcalli,
Obuchon, Ramsey, and Tallerico
NOES: None
ABSENT: None
Council adjourned to closed session
at 6:46 p.m., and returned to open general session at 7:12 p.m.
G. Budget
for Fiscal Year 2000/2001:
Council agreed to continue this item
to the previously scheduled budget workshop on June 29. Council also agreed to commence the workshop
at 4:00 p.m. and adjourn no later than 6:30 p.m.
Council agreed that this item goes along with budget and will also be held over.
Council Member Tallerico moved
adjournment, and Council Member Obuchon seconded the motion.
AYES: Council Members Barnett, Borcalli,
Obuchon, Ramsey, and Tallerico
NOES: None
ABSENT: None
MEETING
ADJOURNED SINE DIE AT 7:26 P.M.