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HomeMy Public PortalAboutOrdinance 06-9081 1 1 ORDINANCE NO. 06 -908 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMPLE CITY, CALIFORNIA GRANTING TO GOLDEN STATE WATER COMPANY, A CALIFORNIA CORPORATION, A FRANCHISE TO USE, OR 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, AS THE SAME MAY NOW OR MAY HEREAFTER EXIST, WITHIN THE CITY OF TEMPLE CITY. The City Council of the City of Temple City does ordain as follows: SECTION ONE DEFINITIONS Whenever in this ordinance the words or phrases defined in this Section One 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) "Act" means the Franchise Act of 1937 set forth in Sections 6201 -6302 of the Code. (b) "City" means the City of Temple City, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated or reincorporated form. (c) "Code" means the Public Utilities Code of the State of California. (d) "County" means the County of Los Angeles in its present form or in any later reorganized or consolidated form. (e) CPUC" means the California Public Utilities Commission or any successor thereto having jurisdiction over the supervision and regulation of public utilities (as defined in Section 216 of the Code). (f) "Engineer" means the city Manager of the City. (g) "Franchise" means any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to use, or lay and use, pipes and appurtenances for transmitting and distributing water for any and all purposes under, along, across or upon the streets in the City. (h) "General Order No. 103" means General Order No. 103 adopted by the CPUC, as in effect on the date hereof or as it may hereafter be modified by the CPUC, setting standards of water service, including standards for the design and construction of pipes and appurtenances. LA1:1043816.1 (i) "Grantee" means Golden State Water Company, a California Corporation, and its successors and assigns. (j) "Lay and use" means to lay, construct, erect, install, operate, maintain, use, repair, replace, or remove. (k) "Pipes and appurtenances" means 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, across or under the streets of the City, and used or useful in transmitting and distributing water. (1) "Streets" means the public streets, ways, alleys and places as the same now or may hereafter exist within the City. (m) "Water" means water of any type, including, without limitation, potable water, reclaimed water and wastewater. SECTION TWO GRANT OF FRANCHISE (a) Subject to each and all of the terms and conditions contained in this ordinance, and pursuant to the provisions of the Act, the right, privilege and franchise be and the same is hereby granted to Grantee to use, or lay and use, pipes and appurtenances for transmitting and distributing water for any and all purposes, under, along, across or upon the streets of the City for a period of 15 years. ALTERNATE IV: a term that shall begin on 30 days from adoption of this ordinance and expire on 15 years from that date. This Franchise shall expire prior to the end of the term if (i) Grantee voluntarily surrenders or abandons the Franchise with the consent of the CPUC; (ii) the State or any municipal or public corporation duly authorized by law purchases by voluntary agreement or condemns and takes under the power of eminent domain all property actually used or useful in the exercise of this Franchise and located within its territorial limits; or (iv) the Franchise is forfeited for noncompliance with its terms by Grantee. (b) The Franchise granted hereby is subject to the terms and conditions set forth herein to the extent not inconsistent with the California Constitution, the Act, other applicable provisions of the Code and the rules, regulations, orders and decisions of the CPUC, including, without limitation, General Order No. 103, and to the terms and conditions set forth in the Act. (c) If any Section, subsection, paragraph, sentence, clause or phrase of this Franchise is for any reason determined to be invalid or unconstitutional, such determination shall not affect the validity of the remaining portions of this Franchise. The City Council declares that it would have passed each Section, subsection, paragraph, sentence, clause or phrase, as the case may be, irrespective of the fact that any one or more of such Sections, subsections, paragraphs, sentences, clauses or phrases have been determined to be invalid or unconstitutional. (d) This grant is made in lieu of all other franchises, rights or privileges owned by the Grantee, or by any successor of the Grantee to any rights under this Franchise, for LA1:1043816.1 2 1 1 1 1 1 1 transmitting and distributing water within the limits of the City, as such limits now or hereafter may exist, except any franchise 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 October 10, 1911, and the acceptance of the Franchise hereby granted shall operate as an abandonment of all such franchises within the limits of this City, as such limits now or may hereafter exist, in lieu of which this Franchise is granted. (e) The granting of this Franchise shall not be construed to prevent the City from granting any identical or similar franchise to any person other than Grantee, so long as such grant does not interfere with the use of this Franchise by Grantee. SECTION THREE ACCEPTANCE OF FRANCHISE (a) No later than thirty (30) days after the passage of this ordinance, the Grantee shall file with the City Clerk a written acceptance of the Franchise hereby granted, and an agreement to comply with the terms and conditions hereof. (b) The Franchise granted hereunder shall not become effective until such written acceptance shall have been filed by the Grantee with the City Clerk of the City. (c) When so filed, such acceptance shall constitute a continuing agreement of the Grantee that if and when the City shall thereafter annex or consolidate with additional territory, any and all franchise rights and privileges owned by Grantee therein, except a franchise derived under Section 19 of Article XI of the California Constitution as that section existed prior to the amendment thereof adopted October 10, 1911, shall likewise be deemed to be abandoned within the limits of such territory. SECTION FOUR AMOUNT OF FRANCHISE FEE (a) Grantee shall pay to City at the times hereunder specified, in lawful money of the United States, a franchise fee annually which shall be equal to two percent (2 %) of the gross annual receipts of the Grantee arising from the use, operation or possession of this Franchise, except that this payment shall be not less than one percent (1 %) of Grantee's gross annual receipts derived from the sale of water within City limits. The gross annual receipts of the Grantee arising from the use, operation or possession of the Franchise for each period shall be calculated as follows: (1) gross receipts from operations of Grantee's for such period shall be multiplied by a fraction, the numerator of which is the amount of Grantee's investment in distribution facilities for the District at the end of such period and the denominator of which is the amount of Grantee's investment in physical properties for the District at the end of such period; LA1:1043816.1 3 (2) the result of the calculation in subparagraph (1) shall be multiplied by the gross revenues of the District for such period; and (3) the result of the calculation in subparagraph (2) shall be multiplied by a fraction, the numerator of which is the total feet of pipe in the streets of the City at the end of such period and the denominator of which is the total feet of pipe in Grantee's distribution system in the District at the end of such period. (b) Grantee shall also pay to City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of this Franchise, such payment to be made within thirty (30) days after the City shall furnish Grantee with a written statement of such expenses. COMMON ADDITIONS: (c) In the event the legislature amends the Act or enacts any other state law which increases the franchise payment to general law cities to a level greater than that provided in Section Four (a) above, then the City shall have the option of prospectively employing the new legislative formula, which shall apply for the remaining term of this Franchise. If the City exercises this option, the legislative formula shall be prospectively applied hereto on the later of (i) the effective date of the legislation, or (ii) January 1 of the calendar year in which the City exercised this option. (d) Upon notice by City that payments shall be made in accordance with subdivision (c) of this Section Four, Grantee shall pay the franchise fee calculated under Section Four (c). (e) Grantee shall reimburse the City for the lesser of the actual out -of- pocket costs incurred by City in connection with the negotiation of this Franchise and $500.00. (0 In the event that Grantee fails to make any of the payments provided herein within ten (10) days after receipt of written notice from City of the failure to pay any amount due on the due date set forth herein,' interest shall accrue on the unpaid balance at an annual rate equal to 7% per annum from the date of such written notice in lieu of forfeiture of the Franchise. SECTION FIVE PAYMENT OF FRANCHISE FEES (a) Within three (3) months after the expiration of each calendar year, or fractional calendar year, during the term of this Franchise, Grantee shall file with the City Clerk, a statement verified by an officer of Grantee showing the following: (1) The total gross receipts under Section Four received by the Grantee from LA1 :1043816.1 4 1 1 1 1 1 1 the use, operation or possession of this Franchise during the preceding calendar year, or fractional calendar year; (2) The total gross receipts under Section Four received by the Grantee from the sale of water within City limits; (3) The method and supporting calculations used to calculate the franchise fees which are payable to the City in accordance with this Franchise. (4) Any change in the footage or internal diameter of pipelines, segregating such footage as to new pipelines laid or acquired during the preceding calendar year, pipelines in territory that was annexed or incorporated during the preceding calendar year and pipelines removed or abandoned in place during the preceding calendar year; (5) The permit number of each permit obtained during the year with respect to operations under this Franchise; and (6) If cathodic protection is used for pipes or appurtenances installed or maintained pursuant to this Franchise, the location and types of anodes, including a description of the methods used as a protection against corrosion and electrolyte leakage. (b) Within fifteen (15) days after the filing of the verified statement, the Grantee shall pay to City, at the office of the City Treasurer, in lawful money of the United States, the sum of money required to be paid by Grantee to City under Section Four for the calendar year, or fractional calendar year, covered by the verified statement. (c) Any neglect, omission or refusal by Grantee to file the verified statement required under subsection (a) above, or to pay any required payments under Section Four at the time and in the manner specified shall be grounds for the declaration of a forfeiture of this Franchise and of all rights and privileges of Grantee hereunder, provided that Grantee shall not have cured said neglect, omission, or refusal to file or pay within [ten (10)] days following written notice from the City of failure to file or pay the required amount, or, if such neglect, omission or refusal is not reasonably subject to cure within such [ten (10)] day period, Grantee has not commenced to cure such neglect, omission or refusal within such [ten (10)] day period and has not continued to prosecute such cure to completion. (d) The City shall have the right to audit the books and records of Grantee relating to the calculation of the franchise fee at the office of Grantee in which such records are kept upon reasonable notice during normal business hours solely for the purpose of verifying the calculation of the franchise fee. City shall, to the extent permitted by applicable law, maintain the confidentiality of all information provided by Grantee to City in connection with such audit that Grantee has informed City is confidential. Nothing herein shall be construed to require Grantee to make available information which constitutes private or confidential information pertaining to specific customers of Grantee, without the prior written consent of such customers. All books and records of Grantee relating to the calculation of the franchise fee for any calendar year shall be maintained by Grantee for a period of at least four (4) years following delivery of the verified statement for such year pursuant to Section Five (a). LA1:1043816.1 5 SECTION SIX INSURANCE (a) Grantee shall have and maintain the following policies of insurance from companies authorized to transact business in the State of California by the Insurance Commissioner of California during the term of this Franchise: (1) Comprehensive general liability insurance with a combined single limit of not less than $2,000,000 per occurrence and $5,000,000 in the aggregate; and (2) Comprehensive automobile liability insurance endorsed for all owned, non -owned and hired vehicles with a combined single limit of at least $1,000,000 per occurrence. (b) In addition, Grantee shall have and maintain workers' compensation insurance as required by law. (c) Grantee shall furnish the City within thirty (30) days after adoption of this Franchise, and within thirty (30) days after issuance of any replacement of any insurance policy required hereunder (i) either certified copies of insurance policies or certificates of insurance from the company issuing the insurance policy with respect to the insurance required to be carried by Grantee pursuant to subsection (a) hereof, including additional insured endorsements and notice of cancellation endorsements; and (ii) either certified copies of insurance policies or certificates of insurance from the company issuing the insurance policy with respect to the insurance required to be carried by Grantee pursuant to subsection (b) hereof, or a certificate of consent to self - insure, issued by the Department of Industrial Relations of the State of California. (d) Each insurance policy obtained by Grantee pursuant to the provisions hereof shall be licensed in the state of California and have the best rating of A -VIII or better and primary to and not contributing with any other insurance maintained by the City, shall name the City and the members of the City Council and the officials and employees of the City as additional insureds, and shall require that written notice be given to the City at least thirty (30) days in advance of any material modification or termination of any program of insurance required hereunder. SECTION SEVEN CONSTRUCTION AND INSTALLATION (a) Grantee shall construct, install and maintain all pipes and appurtenances in accordance with all ordinances, rules and regulations theretofore, or hereafter adopted by the City Council of the City in the exercise of its police powers and not in conflict with the paramount authority of the State of California, including the Code and the rules, regulations, orders and decisions of the CPUC, and, as to State highways, subject to the provisions of general laws relating to the location and maintenance of such facilities. (b) The City Engineer shall have the right to give the Grantee such directions for the location of any pipes and appurtenances as may be reasonably necessary to avoid sewers, LAI:1043816.1 6 1 1 1 1 1 1 water pipes, conduits or other structures lawfully in or under the streets to the extent not inconsistent with General Order No. 103 or other rules, regulations, orders or decisions of the CPUC2; and before the work of constructing any pipes and appurtenances is commenced by Grantee, the Grantee shall file with the City Engineer plans showing the location thereof. In addition, the pipelines shall be designed and constructed in accordance with all flow standards for fire protection purposes prescribed by the Fire District and fire hydrants shall be attached to the distribution system at the locations designated by the Fire District. The City Engineer and the local fire protection agency shall have the right to review Grantee's plans and specifications for the construction of any pipes and appurtenances in City streets for proper purposes, and, if, and to the extent permitted by the California Constitution and the rules, regulations, orders and decisions of the CPUC, approve such plans and specifications. (c) All street coverings or openings of traps, vaults, and manholes shall be constructed flush with the surface of the streets; provided, however, that vents for underground traps, vaults and manholes may extend above the surface of the streets if such vents are located in parkways, between the curb and the property line, and are not, in the reasonable opinion of the City Engineer, hazardous to the public. (d) Where it is necessary to lay any underground pipes through, under or across any portion of a paved or macadamized street, the same, where practicable and economically reasonable and not inconsistent with General Order No. 103 or other rules, regulations, orders and decisions of the CPUC, shall be done by a tunnel or bore, so as not to disturb the foundation of such paved or macadamized street; and in the event that the same cannot be done, such work shall be done under a permit to be granted by the City Engineer upon application therefore, and Grantee shall restore such street, or portion of such street, to as good a condition as existed before such work to the reasonable satisfaction of the City Engineer. (e) In no event may any permit granted by the City Engineer contain any terms or provisions inconsistent with the California Constitution, the Act, other applicable provisions of the Code and the rules, regulations, orders and decisions of the CPUC, including, without limitation, General Order No. 103, or the terms of this Franchise. In no event may any fees charged by the City in connection with obtaining such permit exceed the actual costs to the City in processing the permit application or otherwise be unreasonable or discriminatory. SECTION EIGHT REMOVAL AND RELOCATION (a) City shall have the right to change the grade, alignment or width of any street, including the construction of any subway or viaduct by the City. Grantee shall remove or relocate any facilities installed, used or maintained under this Franchise [and shall make such modifications or repairs to street coverings or openings of traps, vaults and manholes as may be necessary to make such coverings or openings flush with the surface of the streets after such LA1:1043816.1 7 change if and when made necessary by any such lawful change in grade, alignment or width of the street, without expense to the City; provided, however, that Grantee shall not be required to bear the expense of such work done at the request of the City if and to the extent that such request is on behalf, or for the benefit, of any private developer or other non - governmental entity. (b) Grantee shall notify the City within thirty (30) days prior to any determination made by Grantee to abandon the use of any pipelines or appurtenances in the streets of the City of its intent either to abandon the pipes and appurtenances in place, or remove all or a portion of the pipes and appurtenances. The Grantee may thereafter abandon or remove the pipelines in accordance with such terms and conditions as may be reasonably imposed by the City Engineer not inconsistent with the California Constitution, the Code or the rules, regulations, orders and decisions of the CPUC. SECTION NINE TRANSFER OF FRANCHISE The Grantee shall file with the City Council of the City of Temple City within thirty (30) days after any sale, transfer, assignment or lease of this Franchise, or any part hereof, or of any of the rights or privileges granted hereby, written evidence of the same, certified thereto by the Grantee or its duly authorized officers. SECTION TEN EMINENT DOMAIN (a) The Franchise granted hereunder shall not in any way or to any extent impair or affect the right of the City to acquire the property of the Grantee hereof either by purchase or through the exercise of the right of eminent domain, and nothing herein contained shall be construed to contract away or to modify or to abridge the City's right of eminent domain in respect to the Grantee. (b) This Franchise shall not be given any value before any court or other public authority in any proceeding of any character in excess of the cost to the Grantee of the necessary publication and any other sum paid by it to the City therefor at the time of the acquisition thereof. SECTION ELEVEN REMEDIES AND INDEMNIFICATION (a) Grantee shall pay to the City, on demand, the cost of all repairs to public property made necessary by any operations of the Grantee under this Franchise. (b) Grantee shall indemnify, defend, and hold harmless the City and its officers from any and all liability for damages proximately resulting from any operations under this Franchise. Grantee shall not be obligated to indemnify the City or any of its officers for any damages arising out of the negligence of the City or its officers. LA1:1043816.1 8 1 1 1 1 1 1 Grantee's obligation to indemnify the City and its officers hereunder is subject to the following conditions: (1) City shall give Grantee prompt written notice of any claims for indemnification hereunder and a copy of any summons or complaint received by City in connection therewith. (2) Grantee shall have the sole authority, at is own cost and expense, to select counsel, retain expert witnesses and employ such other persons that it may reasonably require in the defense of any such claims. The indemnified party may retain separate counsel, experts and other persons for the sole purpose of monitoring the proceedings at its own cost and expense. Notwithstanding the foregoing, in the event that there is an actual conflict of interest between Grantee and the indemnified party, then the indemnified party shall have the right to retain separate counsel, experts and other persons to represent it and to recover the reasonable costs and expenses thereof from Grantee. (3) The indemnified party shall cooperate with Grantee in the defense of any claim for any indemnification hereunder. (4) Grantee shall have the right to enter into any reasonable settlement of any claim for indemnification hereunder and the indemnified party shall cooperate with Grantee in reaching such settlement.] (c) If any portion of any street shall be damaged by reason of defects in any of the pipes and appurtenances maintained or constructed under this Franchise, or the operation thereof, Grantee shall, at its own cost and expense, immediately repair any such damage and restore such portion of the street, to as good condition as existed before such defect or other damage caused by Grantee occurred to the reasonable satisfaction of the City Engineer. (d) In the event that Grantee neglects or fails to remove or relocate any pipelines and appurtenances in a timely manner after receipt of all permits necessary from the City or any other governmental agency that Grantee may be required to obtain in connection therewith in accordance with the provisions of Section Eight or fails to immediately repair any damage to any portion of the streets of the City as required by Section Eleven (c), the City shall have the right to remove or relocate such pipelines and appurtenances or repair such damage to the streets and Grantee shall reimburse City for all reasonable costs or expenses incurred by the City in connection with such removal, relocation or repair promptly after the receipt of a bill therefore. (e) If the Grantee shall fail, neglect or refuse to comply with any of [the][other] provisions or conditions hereof, and shall not, within [ten (10)] days after written demand for compliance, begin the work of compliance, or after such beginning shall not prosecute the same with due diligence to completion, then the City Council, may declare this Franchise forfeited as provided herein, and the City may thereafter sue in its own name for the forfeiture of this Franchise. (f) Within thirty (30) days after the adoption of this Franchise, Grantee shall provide to the City Clerk a faithful performance bond in the sum of not less than $100,000.00 LA1:1043816.1 9 payable to the City executed by a corporate surety licensed to transact business as a surety in the State of California. Such bond shall be condition upon the faithful performance by the Grantee of the terms and conditions of this Franchise and shall provide that, in the case of any material breach of any condition of this Franchise, the penal sum therein shall be recoverable. SECTION TWELVE NOTICES Any notices under this Section Twelve shall be in writing and be delivered by courier service or by certified mail, return receipt requested, to the other party at the address shown below or at such other address as the party may designate by written notice delivered in the manner provided for herein: City of Temple City 9701 Las Tunas Temple City Ca 91780 Golden State Water Company 630 E Foothill Ave San Dimas, Ca, 91773 Attn.: District Manager Alice Shiozawa SECTION THIRTEEN CONDITIONS TO EFFECTIVENESS This ordinance shall take effect thirty (30) days after its adoption, provided that Grantee has filed written acceptance thereof as provided in Section Three (a). The City Clerk shall certify to the adoption of this ordinance and shall cause the same to be published as required by law. Attest: 100/6-e, ity Clerk I\M-r APPROVED AS TO FO City Attorney I do hereby certify that the foregoing ordinance, being Ordinance No. 06 -908, was introduced at a regular meeting of the City Council of the City of Temple City held on the 18th day of July, 2006, and was duly passed, approved, and adopted by said Council, approved and signed by the Mayor and attested by the City Clerk, at a regular meeting of said City Council held on the 15th day of August, 2006, by the following vote: LA1:1043816.1 10 1 1 1 1 1 AYES: NOES: ABSENT: ABSTAIN: Councilmember - Arrighi, Gillanders, Wong, Wilson, Capra Councilmember -None Councilmember -None Councilmember -None LA1:1043816.1 11