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HomeMy WebLinkAbout2290 ORDINANCE NO. 2290 (UNCODIFIED) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, GRANTING TO GOLDEN STATE WATER COMPANY, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO USE OR TO LAY AND USE, PIPES, CONDUITS AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING WATER FOR ANY AND ALL PUPOSES IN, ALONG, ACROSS, UPON AND UNDER THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES WITHIN THE CITY OF ARCADIA (PER ARTICLE XIII OF THE ARCADIA CITY CHARTER) THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Whenever in this ordinance the words or phrases hereinafter in this section defined are used, it is intended that 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 "Act" means the Franchise Act of 1937 set forth in Sections 6201- 6302 of the Code. (b) The "City" means the City of Arcadia, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated of reincorporated form. (c) The "Streets" shall mean the public streets, ways, alleys and places, except state freeways and highways, as the same now or may hereafter exist within the City. (d) The "Pipes and Appurtenances" shall mean pipe, pipelines, main, service, trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit, ditch, flume, appliance, attachment and other appurtenances located or to be located in, upon, along, 1 across or under the streets of the City, and used or useful in transmitting or distributing water. (e) The "Lay and Use" shall mean to lay, construct, erect, install, operate, maintain, use, repair, replace, relocate or remove. (f) The "Franchise" shall mean and include any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to lay and use pipes and appurtenances for transmitting and distributing water for any and all purposes under, along, across or upon the public Streets, ways, alleys, and places in the City, and shall include and be in lieu of any existing or future City requirement to obtain a license or permit for the privilege of transacting and carrying on a business within the City. SECTION 2. The right, privilege and franchise, subject to each and all of the terms and conditions contained in this ordinance, and pursuant to Article XIII of the Arcadia City Charter and subject to the terms and conditions of Division 3, Chapter 2, of the Public Utilities Code of the State of California, be and the same is herby granted to GOLDEN STATE WATER COMPANY, a corporation organized and existing under and by virtue of the laws of the State of California, to lay and use pipes and appurtenances for transmitting and distributing water for any and all purposes, under, along, across or upon the Streets. SECTION 3. The term of this franchise shall be from November 23, 2011 to and including November 22, 2021. During the term hereof, this Franchise shall endure in full force and effect until, with the consent of the Public utilities Commission of the State of California, it is voluntarily surrendered or abandoned by the Grantee, or until the State 2 2290 or some municipal or public corporation thereunto duly authorized by law shall purchase by voluntary agreement or shall condemn and take under the power of eminent domain; all property actually used and useful in the exercise of this Franchise and situated within the territorial limits of the State, municipal, or public corporation purchasing or condemning such property, or until this Franchise is forfeited for noncompliance with its terms by the Grantee. SECTION 4. For each full or fractional calendar year of the life of this Franchise, the Grantee shall pay to the City at the times hereinafter specified, in lawful money of the United Sates, a sum annually which shall be equivalent to two percent (2%) of the gross annual receipts of Grantee arising from the use, operation or possession of this Franchise; provided, however, that such payment shall in no event be less than one percent (1%) of the gross annual receipts of the Grantee derived from the sale of water within the limits of the City. SECTION 5. The Grantee shall file with the Clerk of the City, within three (3) months after the expiration of the calendar year, or fractional calendar year, following the date of the granting of this Franchise, and within three (3) months after the expiration of each subsequent calendar year or fraction thereof during which this Franchise is in effect, a verified statement showing in detail for the term of the Franchise in such calendar or fractional year, as the case may be, the total gross receipts for the Grantee arising from the use, operation or possession of this Franchise and the total gross receipts of the Grantee derived from the sale of water within the City. The Grantee shall pay to the City within thirty (30) days after the time for filing said statement, in lawful money of the United States, the above required percentage of its 3 2290 gross receipts for the calendar year, or fractional calendar year, covered by said statement. Any neglect, omission or refusal by the Grantee to file such verified statement, or to pay said percentage, at the times or in the manner hereinbefore provided, shall be grounds for the declaration of forfeiture of this Franchise and of all rights thereunder. SECTION 6. Except with respect to franchises existing or derived under Section 19 of Article XI of the Constitution of the State of California as that section existed prior to the amendment thereof adopted on October 10, 1911, this grant is made in lieu of all other franchises, rights, or privileges that have been granted by the State or some municipal or public corporation now owned by the Grantee to lay and use pipes and appurtenances in the streets of the City for transmitting and distributing water and the acceptance of the Franchise hereby granted shall operate as (i) an abandonment within the limits of the City of all such other franchises, rights and privileged that have been granted by the State of some municipal or public corporation in lieu of which this franchise is granted and (ii) an agreement to comply with the terms and conditions hereof. SECTION 7. The Franchise granted hereunder shall not become effective until written acceptance thereof shall have been filed by the Grantee thereof with the Clerk of the City. When so filed, such acceptance shall constitute a continuing agreement of the Grantee that if and when the City shall thereunder annex or consolidate with additional territory, any and all franchises, rights and privileges owned by the Grantee therein shall likewise deemed to be abandoned as to all streets within the limits of such territory. 4 2290 SECTION 8. The City reserves the right to improve any street or portion thereof over and within the area for which said Franchise is granted, including the change of grade, relocation of right-of-way, realignment of right-of way, change in width, construction of reconstruction of any such street, or any portion thereof. Within ninety (90) days after receipt by Grantee of a notice in writing from the City of the fact that work is to be done pursuant to any such reserved right and specifying the general nature of the work and the area in which the same is to be performed, the Grantee shall do all things necessary to protect its Franchise property during the progress of such work and if ordered by the Public Works Services Director or City Engineer, the Grantee shall disconnect, remove, or relocate its pipes and appurtenances within the street to such extent, in such manner and for such period as shall be necessary to permit the performance of such work in an economical manner, and in accordance with the general recognized engineering and construction methods, and to permit the maintenance, operation and use of such public improvement of the street as so improved. All of such things shall be done and the work shall be performed by the Grantee at its sole cost and expense. In the event the City shall hereafter construct, install, reconstruct or repair any bridge or artificial support in or underlying any street in which any pipes of appurtenances of the Grantee are located, and in the event that the cost thereof be increased in order to provide for the installation, maintenance or operation of any such pipes or appurtenances in or on the street area which said bridge or other artificial support covers or underlies, then the Grantee shall pay to the City the full amount of such increase of cost, upon completion of such construction, installation or repair. Any damage done directly or indirectly to any such public improvement by the 5 2290 Grantee, in exercising directly or indirectly any right, power of privilege under this Franchise, or in performing any duty under or pursuant to the provisions of this Franchise, shall be promptly repaired by the Grantee, at its sole cost and expense. SECTION 9. The Grantee of this Franchise shall: (a) construct, install and maintain all Pipes and Appurtenances in accordance and in conformity with all of the applicable ordinances, rules and regulations heretofore or hereafter adopted by the City Council in the exercise of its police powers and not to conflict with the authority of the State of California, and, as to State highways, subject to the provisions of general laws relating to the location and maintenance of such facilities therein; in constructing, installing and maintaining the Pipes and Appurtenances the Grantee shall make and backfill all excavations in such a manner and way as to leave the surface of the public street, alley, highway, or public place in a good condition as it was prior to said excavation, as well as to conform to the statutes of the State of California and the ordinances of the City of Arcadia as they now exist or may hereafter be amended with respect to the securing of permits for excavations filling and obstructions of City and State highways. In case of public utilities subject to the jurisdiction of the Public Utilities Commission of the State of California, the rules, regulations and orders of the Public Utilities Commission shall govern whenever any conflict may exist between them and the ordinances, codes, rules and regulations adopted or prescribed by the City. Notwithstanding any provision hereinabove, in the event that the City determines that a greater or better repair method is reasonable and appropriate for the long term integrity of any applicable street, alley, highway or public place, the City shall notify the Grantee of the City's determination prior to or at the time 6 2290 of issuance of an applicable permit or approval for the Grantee to proceed. The City shall have the right to determine, in its discretion, the scope, extent and quality of any repair required to be undertaken by the Grantee hereunder. (b) pay to the City, on demand the cost of all repairs to public property made necessary by any operations of the Grantee under this Franchise. (c) indemnify and hold harmless the City and its officers, officials, employees, agents and volunteers from any and all liability for damage proximately resulting from the failure of the Grantee well and faithfully to observe and perform each and every provision of this Franchise and each and every applicable provision of Division 3, Chapter 2 of the Public Utilities Code of the State of California. Nothing contained in the foregoing indemnity provision shall be construed to require the Grantee to indemnify the City against any responsibility or liability as may be caused by the sole negligence or willful misconduct of City or its officers, agents, employees or independent contractors. (d) maintain general liability insurance for personal injury and property damage, naming the City of Arcadia as an additional insured. This insurance shall be in a form, content and amount that is customarily provided by Franchisee to other cities and counties granting a franchise to Franchisee pursuant to the Act. (e) remove or relocate, without expense to the City, any facilities installed, used and maintained under this Franchise if and when made necessary by any lawful change in grade, alignment or width of any street, or the construction therein or thereunder of any subway, viaduct, sewer, storm drain, pipeline or other improvement, made by the City. This Franchise shall not constitute an agreement or undertaking by the City, nor impose upon the City any obligation, to pay any part of the costs of 7 2290 removal or relocation of any of the Pipes and Appurtenances when required in order to accommodate construction of any state freeway; provided, however, that the Grantee shall not be required to bear the expense of any removal or relocation made at the request of the City on behalf or for the benefit of any private developer or other non- government third party. (f) file with the City Council within ninety (90) days after any sale, transfer, assignment, or lease of this Franchise, or any part thereof, or of any of the rights or privileges granted thereby, written evidence of the same, certified thereto by the grantee of its duly authorized officers. (g) promptly repair, at the sole cost and expense of the Grantee and to the complete satisfaction of the City, any damage to any street or public improvement caused directly or indirectly by the Grantee in exercising, directly or indirectly, any right, power or privilege under this Franchise or in performing any duty under or pursuant to any of the provisions of this Franchise. SECTION 10. Relocation of pipelines, appurtenances and facilities — state highway or freeway restrictions. Nothing in this Franchise shall require the Grantee to relocate its pipelines, appurtenances and facilities in a state highway or freeway to any greater extent otherwise obliged to do, by state law, if at all. SECTION 11. The Franchise granted hereunder shall not in any way 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 power of eminent domain, and nothing herein contained shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the City's right of eminent domain in respect to the Grantee or any 8 2290 of its property before any court or other public authority in any proceeding of any character. SECTION 12. (a) If the Grantee shall fail, neglect or refuse to comply with any of the provisions or conditions hereof, and shall not, within ninety (90) 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 Council may declare this Franchise forfeited. (b) The City may sue in its own name for the forfeiture of this Franchise, in the event of non-compliance by the Grantee, its successors or assigns, with any of the conditions thereof. SECTION 13. The Grantee shall pay to the City a sum of money sufficient to reimburse it for all publication and posting expenses incurred by it in connection with the granting of this Franchise; such payment to be made within ninety (90) days after the City shall furnish such Grantee with a written statement of such expenses. SECTION 14. This Ordinance shall remain an uncodified ordinance of the City of Arcadia for the term of this Franchise. SECTION 15. The City Clerk shall certify to the adoption of this Ordinance and shall cause a copy of the same to be published in the official newspaper of said City within fifteen (15) days after its adoption. This Ordinance shall take effect on the thirty first (31) day after its adoption. [SIGNATURES ON NEXT PAGE] 9 2290 Passed, Approved and adopted this 18th day of October , 2011. A / J `L r/ . (A yore the C°y of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: g.tk bkel Stephen P. Deitsch City Attorney 10 2290 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS: CITY OF ARCADIA ) I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies that the foregoing Ordinance No. 2290 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the 18th day of October, 2011 and that said Ordinance was adopted by the following vote, to wit: AYES: Council Members Amundson, Chandler, Segal and Kovacic NOES: None ABSENT: Council Member Harbicht ity Clerk of the City of Arcadia 11 2290