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CC - Item 3C - Staff Report Ord. NO. 794 /E M E O jS ` .,., i stat teport TO: HONORABLE MAYOR AND MEMBERS ROSEMEAD CITY COUNCIL FROM: FRANK G. TRIPEPI, CITY MANAGEROZ DATE: JUNE 14, 1999 RE: ORDINANCE NO. 794—AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA, GRANTING TO SOUTHERN CALIFORNIA WATER COMPANY, A FRANCHISE TO LAY AND USE, FOR TRANSMITTING AND DISTRIBUTING WATER FOR ANY AND ALL PURPOSES, PIPELINES AND OTHER FACILITIES, IN, ALONG, ACROSS, UPON AND UNDER THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES WITHIN THE CITY OF ROSEMEAD—ADOPT Attached is Ordinance No. 794, granting Southern California Water Company a franchise to lay and use, for transmitting and distributing water for any and all purposes, pipelines and other facilities, in, along, across, upon and under the public streets, ways, alleys and places within the City. At the June 8, 1999 City Council meeting, the ordinance was introduced and a public hearing conducted. No public comments were heard. Pursuant to City Council direction, the term of the franchise has been reduced to ten years, and will now expire on May 22, 2009. RECOMMENDATION It is recommended that the Rosemead City Council adopt Ordinance No. 794. Attachment COUNCIL AGENDA 1999rsmd/staff rpticity JUN 221999 ITEM No. J7L •C ) ORDINANCE NO. 794 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA, GRANTING TO SOUTHERN CALIFORNIA WATER COMPANY, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO LAY AND USE, FOR TRANSMITTING AND DISTRIBUTING WATER FOR ANY AND ALL PURPOSES, PIPELINES AND OTHER FACILITIES, IN, ALONG, ACROSS, UPON AND UNDER THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES WITHIN THE CITY OF ROSEMEAD. The City Council of the City of Rosemead, 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 word "Grantee" shall mean the corporation to which the franchise contemplated in this ordinance is granted and its lawful successors or assigns; (b) The word "City shall mean the City of Rosemead, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form; (c) The word "streets' shall mean the public streets, ways, alleys, and places, except state freeways, as the same no or may hereafter exist within said City; Ordinance No. 794 (d) The phrase"pipes and appurtenances"shall mean pipes, pipelines and distribution and transmission systems consisting of mains,distribution and transmission pipes and other properties and facilities, together with services, traps,manholes and other necessary or appropriate appurtenances,forthe purpose of transmitting and distributing water; (e) The phrase 'to use or to lay and use" shall mean to lay, construct, erect, install, operate, maintain, use, repair, replace, relocate or renew. (f) The word "Franchise" shall mean and include any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to lay and use pipes and appurtenances for transmitting or 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 and upon the terms and conditions of Division 3, Chapter 2 of the Public Utilities Code of the State of California, be and the same is hereby granted to SOUTHERN CALIFORNIA 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 -2- Ordinance No. 794 appurtenances for transmitting and distributing water for any and all purposes, under, along, across, or upon streets. Section 3. The term of this franchise shall be from May 23, 1999 to May 22, 2009, that is to say, 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 Grantee, or until the State 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 situate 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 orfractional calendar year of the life of this franchise, Grantee shall pay to the City at the times hereinafter specified, in lawful money of the United States, 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 Grantee derived from the sale of water within the limits of City. -3- Ordinance No. 794 Section 5. Grantee shall file withe the Clerk of 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 of Grantee arising from the use, operation or possession of this franchise and the total gross receipts of Grantee derived from the sale of water within the City. Grantee shall pay to the City within fifteen (15) days after the time for filing said statement, in lawful money of the United States, the above required percentage of its gross receipts for the calendar year, or fractional calendar year, covered by said statement. Any neglect, omission or refusal by said Grantee to file said verified statement, or to pay said percentage, at the times or in the manner hereinbefore provided, shall be grounds for the declaration of a forfeiture of this franchise and of all rights of Grantee hereunder. Section 6. 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 Grantee to lay and use pipes and appurtenances in the streets of City for transmitting and distributing water and the acceptance of the franchise hereby granted shall operate as (i) an abandonment within the limits of -4- Ordinance No. 794 City of all such other franchises, rights and privileges that have been granted by the State or 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 Grantee thereof with the Clerk of City. When so filed, such acceptance shall constitute a continuing agreement of Grantee that if and when the City shall thereafter annex or consolidate with, additional territory, any and all franchises, rights and privileges owned by the Grantee therein shall likewise be deemed to be abandoned as to all streets within the limits of such territory. Section8. The franchise granted hereunder shall not in any way or to any extent impair or affect the right of City to acquire the property of 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 abridge, either for a term or in perpetuity, City's right of eminent domain in respect to Grantee or any public utility; nor shall this franchise ever be given any value before any court or other public authority in any proceeding of any character or in the event of the purchase by City of assets or property of Grantee, in excess of cost to Grantee of the necessary publication and any other sum paid by it to City therefor at the time of acquisition. -5- Ordinance No. 794 Section 9. City reserves the right to improve any street or portion thereof over and within the area for which said franchise is granted, including change of grade, relocation of right-of-way, realignment of right-of-way, change in width, construction or reconstruction of any such street, or any portion thereof. Within sixty (60) days after receipt by Grantee of a notice in writing from 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, Grantee shall do all things necessary to protect its franchise property during the progress of such work and if ordered by the City Council, 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 generally recognized engineering and construction methods, and to permit the maintenance, operation and use of the street as so improved. All of such things shall be done and the work shall be performed by Grantee at its sole cost and expense. In the event that City shall hereafter construct, install, reconstruct or repair any bridge or artificial support in or underlying any street in which any pipes or appurtenances of 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 -6- Ordinance No. 794 artificial support covers or underlies, then Grantee shall pay to 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 Grantee, in exercising directly or indirectly any right, power or privilege under this franchise, or in performing any duty under or pursuant to the provisions of this franchise, shall be promptly repaired by Grantee, at its sole cost and expense. Section 10. Grantee shall: (a) Construct, install and maintain all pipes and appurtenances in accordance and in conformity with all of the applicable ordinances and rules and regulations heretofore or hereafter adopted by the City Council in the exercise of its police powers and not in 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 Grantee shall make and backfill all excavations in such manner and way as to leave the surface of the public street, alley, highway, or public place in as 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 City 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 -7- Ordinance No. 794 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; (b) Pay to City, on demand, the cost of all repairs to public property made necessary by any operations of Grantee under this franchise; (c) Indemnify and hold harmless City and its officers from any and all liability for damage proximately resulting from any operations under this franchise, and be liable to City for all damages proximately resulting from the failure of said Grantee well and faithfully to observe and perform each and every provision of this franchise and each and every applicable provisions of Division 3, Chapter 2 of the Public Utilities Code of the State of California. Nothing contained in the foregoing indemnity provisions 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) Remove or relocate,without expense to City, any facilities installed, used and maintained under this franchise if and when made necessary by any lawful change of 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 City. This franchise shall not constitute an agreement or -8- Ordinance No. 794 undertaking by City, nor impose upon City any obligation, to pay any part of the costs of removal or relocation of any of the pipes and appurtenances when required in order to accommodate construction of any state freeway; provided, however,that 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-governmental third party; (e) File with the City Council within thirty(30)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 or its duly authorized officers; and (f) Promptly repair, at the sole cost and expense of Grantee and to the complete satisfaction of City, any damage to any street or public improvement caused directly or indirectly be 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 11. (a) If Grantee shall fail, neglect or refuse to comply with any of the provisions or conditions hereof, and shall not, within ten (10) days after written demand for compliance, begin the work of compliance, or after such beginning shall not prosecute the same with due diligence to completion,then the City Council may declare this franchise forfeited. -9- Ordinance No. 794 (b) The City may sue in its own name for the forfeiture of this franchise in the event of noncompliance by Grantee, its successors or assigns,with any of the conditions hereof. Section 12. Grantee shall pay to 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 13. The City Clerk shall certify to the adoption of this ordinance and shall cause the same to be published at least once in the Rosemead newspaper of general circulation, which circulated in the City of Rosemead. Section 14. No sale, transfer, assignment or lease of this franchise, or any part thereof, or of any rights or privileges granted thereby, shall be valid or effective until the provisions of Sec. 10(e) hereof shall have been complied with and the purchaser, transferee, assignee or lessee shall have filed with the City Council of City its within assumption of all obligations hereof in a form satisfactory to said City Council. Section 15. The franchise herein provided for shall not become effective for any purpose until Grantee shall file a written acceptance of all terms and provisions hereof with the City Clerk of City. -10- Ordinance No. 794 APPROVED and ADOPTED this day of 1999. JOE VASQUEZ, MAYOR ATTEST: NANCY VALDERRAMA - CITY CLERK -11-