Loading...
HomeMy WebLinkAboutORD 12 (1989)ORDINANCE NO. 29_12 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR GRANTING TO SOUTHERN CALIFORNIA EDISON COMPANY, A CALIFORNIA CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO INSTALL, MAINTAIN AND USE POLES, WIRES, CONDUITS, AND APPURTENANCES, INCLUDING COMMUNICATION CIRCUITS NECESSARY OR PROPER THEREFOR, FOR TRANSMITTING AND DISTRIBUTING ELECTRICITY FOR ANY AND ALL PURPOSES IN, ALONG, ACROSS, UPON, OVER AND UNDER THE PUBLIC STREETS, HIGHWAYS, ROADS, ALLEYS AND PLACES, AS THE SAME NOW OR MAY HEREAFTER EXIST, WITHIN THE CITY OF DIAMOND BAR. A. Recitals. (i) On May 16, 1989, the City Council of the City of Diamond Bar adopted its Resolution No. 89-_-.3.3 setting forth said Council's intention to grant a franchise under and pursuant to the provisions of Chapter 2 of Division 3 of the California Public Utilities Code, commencing at Section 6201, and set the date of June 6, 1989, at the hour of 7:00 p.m., as the time for a public hearing wherein any and all persons having an objection to the granting of such franchise could be heard. (ii) On June 6, 1989, the City Council of the City of Diamond Bar conducted a duly noticed public hearing with regard to the granting of such franchise and concluded such hearing prior to the adoption of this Ordinance. (iii) All legal prerequisites to the enactment of this Ordinance have occurred. .1—. 1 B. ordinance. THE CITY COUNCIL OF THE CITY OF DIAMOND BAR DOES ORDAIN AS FOLLOWS: section 1. In all respects as set forth in the Recitals, Part A, of this Ordinance. Section 2. Whenever in this Ordinance the following words or phrases in this section are used, they shall have the respective meanings ascribed to them in the following definitions, unless, in the given instance, the context clearly imports a different meaning: a. The word "Grantee" shall mean SOUTHERN CALIFORNIA EDISON COMPANY, a California Corporation, and its lawful successors or assigns; b. The word "City" shall mean the City of Diamond Bar, a municipal corporation, in its present incorporated form or in any later reorganized, consolidated or reincorporated form; C. The word "streets" shall mean the public streets, highways, roads, alleys and places as the same may now or hereafter exist within the City; d. The word "Engineer" shall mean the City Engineer of the City; e. The phrase "poles, wires, conduits and appurtenances" shall mean poles, towers, supports, wires, conductors, cables, guys, stubs, platforms, crossarms, braces, F '� transformers, insulators, conduits, ducts, manholes, meters, gauges, regulators, cut-outs, switches, communication circuits, appliances, attachments, appurtenances and any other property located or to be located in or under the Streets of the City, and used or useful in the transmission and distribution of electricity; f. The phrase "construct and use" shall mean to lay, construct, excavate, encroach, erect, install, reinstall, operate, maintain, use, repair, modify; -replace, relocate or remove. g. The word "franchise" shall mean and include any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to constuct and use poles, wires, conduits and appurtenances, including communication circuits, for transmitting and distributing electricity for any and all purposes in, along, across, upon, over, and under Streets within the City. The franchise granted hereunder, and the franchise fee required to be paid to City hereunder, shall be in lieu of any other license or entitlement for the privilege of transacting and carrying on the business of Grantee within the City with respect to the distribution, transmission and sale of electricity. Ssation 3. The right, privilege and franchise, subject to each and all of the terms and conditions contained in this Ordinance, and I -- pursuant to the provisions of Chapter 2 of Division 3, of the 3 Public Utilities Code of the State of California, be and the same hereby is granted to Grantee, its successors and assigns, to construct and use poles, wires, conduits and appurtenances for transmitting and distributing electricity for any and all purposes along, across, upon, under, in, along, across, upon, over and in the streets of the City. Section 4. The term or period of this franchise shall be indeterminate from and after the effective date hereof and shall endure in full force and effect until the same, with the consent of the Public Utilities Commission of the State of California, is voluntarily surrendered or abandoned by its possessor, or until the State of California or some municipal or public corporation authorized b law shall y purchase by voluntary agreement or condemn under the power of eminent domain, all property actually used and useful in the exercise of this franchise, or until this franchise shall be forfeited for non-compliance with its terms by the possessor thereof. soction 5. The 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 said franchise; provided that such payment shall not be less than one percent (1%) of the gross annual receipts derived from the sale of electricity within the City of Diamond Bar. 4 section 6. The Grantee shall file with the City Manager of the City, within three (3) months after the expiration of the calendar year, or fractional calendar year, following the date of the grant of this franchise, and within three (3) months after the expiration of each calendar year thereafter, a duly verified statement showing in detail the total gross receipts of the Grantee, its successors or assigns, during the preceding calendar year, or such fractional calendar year, arising from the use, operation or possession of this franchise and sale of electricity hereunder. It shall be the duty of the Grantee to pay to the City within fifteen (15) days after the time for filing such statement the specified percentage of its gross r-, receipts for the calendar year, or such fractional calendar year, covered by such statement. Any neglect, omission or refusal by said Grantee to file such verified statement, or to pay said percentage, at the time or in the manner herein provided, shall be grounds for a declaration of a forfeiture of this franchise and of all rights hereunder. SeCtion 7. This franchise is granted in lieu of all other franchises owned by the Grantee, or by any successor or assign of the Grantee, to any rights under this franchise for transmitting and distributing electricity within the limits of the City, as said limits now or may hereafter exist, and the acceptance of the franchise hereby granted shall operate as an abandonment of all 5 such franchises within the limits of City, as such limits now or may hereafter exist, in lieu of which this franchise is granted except as to any franchise derived under Section 19, Article XI of the Constitution as that section existed prior to the amendment thereof adopted October 10, 1911. section S. The franchise granted hereunder shall not become effective until written acceptance thereof shall have been filed by the Grantee with the City Clerk of the City. 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 the Grantee therein shall likewise be deemed to be abandoned within the limits of such territory, and the terms of this franchise shall apply to such territory. section 9. 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 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, either for a term or in perpetuity, the City's right of eminent domain with respect to the 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 in �- excess of the cost to the Grantee of the necessary publication 6 and any other sum paid by it to the City at the time of the acquisition thereof. section 10. The Grantee shall: (a) construct, install and maintain all poles, wires, conduits and appurtenances in accordance and in conformity with all and any of the ordinances, rules and regulations heretofore, or hereafter, adopted by the City Council of City in the exercise of its police powers and not in conflict with the paramount authority of the State, and, as to State highways, subject to the provisions of general laws relating to the location and maintenance of such facilities; (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, including, but not limited to, City's reasonable overhead expenses; (c) indemnify and hold City and its elected and appointed officials, officers, agents and employees free and harmless from all claims for damage or injuries to persons or property by reason of Grantee's negligence or Grantee's acts or those of Grantee's officers, agents or employees in connection with Grantee's operations under this franchise. Grantee shall be liable to City for all damages proximately resulting from the failure of Grantee to well and faithfully observe and perform each and every provision of this franchise and each and every provision of Chapter 2 of Division 3 of the Public Utilities Code 7 11 of the State of California, including, but not limited to, court costs assessed by a court of competent jurisdiction; (d) remove or relocate, at the request of the City and without expense to the City, any poles, wires, conduits and appurtenances installed, used or maintained under this franchise if and when made necessary by any change of grade, alignment or width of any Streets, including the construction of any subway or viaduct by the City; 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 developer or other third party; (e) file with the City Council of the City at least thirty (30) days prior to 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. section 11. Grantee shall, at all times during the term of this franchise, maintain on a twenty-four (24) hour -a -day basis adequate emergency equipment and properly trained emergency crew for the purpose of shutting off the transmission of electricity through such poles, wires, conduits and appurtenances, in whole or in part, in the event of an emergency resulting from an earthquake, act of war, civil disturbance, flood or other cause. 8 section 12. i 1 11 The Engineer shall have power to give the Grantee such directions subject to the paramount authority of the State for the location of any poles, wires, conduits and appurtenances as may be reasonably necessary in the opinion of the Engineer to avoid sewers, water pipes, conduits or other structures in or under the streets. Prior to the commencement of any work to construct any poles, wires, conduits and appurtenances, the Grantee shall file with the Engineer plans showing the location thereof, which shall be subject to the approval of said Engineer and such construction shall be subject to the inspection of said Engineer and done to his satisfaction and in compliance with all and any City rules, regulations, ordinances, standards and/or specifications. All street coverings or openings of traps, vaults, and manholes shall at all times be kept 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 when said vents are located in parkways, between the curb and the property line subject to the approval of the Engineer. Section 13. Where it is necessary to lay any underground lines or conduits in or under any portion of a paved or macadamized street, the same, where practicable and economically reasonable, shall be done by a tunnel or bore, so as not to disturb the foundation of such paved or macadamized street. In the event 0 that the same cannot be so done, such work shall be done under a permit to be granted by the Engineer upon application therefor and subject to all and any City rules, regulations, ordinances, standards and/or specifications. Section 14. If any portion of any street or other public property shall be damaged by reason of breaks, leaks or defects in any of the poles, wires, conduits and appurtenances maintained or constructed under this franchise, or by reason of any other cause arising from the operation or existence of any poles, wires, conduits and appurtenances constructed or maintained under this franchise, Grantee shall, at its own cost and expense, immediately repair any such damage and restore such street, or portion of street, or other such public property, to as good a condition as existed before such defect or other cause of damage occurred, with such work to be done under the direction of the Engineer and in accordance with all and any rules, regulations, ordinances, standards and specifications of the City. section I&. If the Grantee or its successors or assigns shall fail, neglect or refuse to comply with any of the provisions of 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 may declare this franchise forfeit and commence and/or complete any such work. Grantee 10 shall be liable to City for any and all costs and expenses incurred by City in connection with any such work including, but not limited to, reasonable overhead expenses. Section 16. Upon expiration, revocation or termination of this franchise, or the permanent discontinuance of use of the pipes and appurtenances or any portion thereof, Grantee shall, within twenty (20) days thereafter, make written application to the Engineer for authority to either (1) abandon all, or a portion, of such poles, wires, conduits and appurtenances in place, or (2) remove all, or a portion, of such poles, wires, conduits and appurtenances. Such application shall describe the location of the poles, wires, conduits and appurtenances desired to be abandoned or removed, and the relative physical condition of such poles, wires, conduits and appurtenances. The Engineer shall determine whether such abandonment or removal may be effected without detriment to the public interest and under what conditions and terms the proposed abandonment or removal may be safely effected and shall then notify the Grantee of such requirements. Grantee shall, within ninety (90) days thereafter, either remove all or such portion of such poles, wires, conduits and appurtenances or abandon in place all or a portion of such poles, wires, conduits and appurtenances, as directed by the Engineer. If any poles, wires, conduits and appurtenances to be abandoned in place subject to prescribed conditions are not 11 abandoned in accordance with all such conditions, the Engineer may make additional orders including, if deemed desirable, an order that the Grantee remove all such poles, wires, conduits and appurtenances in accordance with applicable requirements. In the event Grantee fails to remove any poles, wires, conduits and appurtenances in accordance with such applicable requirements within the time prescribed by the Engineer, then City may remove such poles, wires, conduits and appurtenances and Grantee shall thereafter pay to City the actual cost thereof, plus City's reasonable overhead expenses. Any decision of the Engineer with respect to conditions, interpretations of plans, specifications, rules, regulations and/or standards shall be final. .� Section 17• The City may sue in its own name for the forfeiture of this franchise in the event of noncompliance by the Grantee, its successors or assigns, with any of the conditions thereof. In the event of any such suit or other legal proceeding, the prevailing party shall be entitled to attorneys' fees. Sectio a ig. Not later than ten (10) days after the posting of this ordinance, the Grantee shall file with the City Clerk of the City a written acceptance of the franchise hereby granted and an agreement to comply with the terms and conditions hereof. section 19. Grantee shall, at Grantee's sole cost and expense, keep or cause to be kept in full force and effect, for the mutual 12 benefit of City and Grantee, a comprehensive form of general public liability insurance against claims and liability for personal injury, death, bodily injury or property damage arising from the use, construction, or maintenance of this franchise in a combined single -limit amount of not less than $1 million for any one incident or occurrence. All such insurance required by the express provisions of this ordinance shall be carried only with responsible insurance companies and may be in the form of insurance, self-insurance or self-insured retention. For any insurance, as required herein, maintained by self-insurance or a self-insured retention, Grantee hereby expressly agrees to waive the right of subrogation against the City and against City's agents and representatives. Any insurance policies maintained pursuant to the terms of this Ordinance, other than self-insurance or self-insured retention, shall, to the extent obtainable, contain language to the effect that (1) the insurer waives the right of subrogation against the City and against City's agents and representatives, (2) the insurance is primary and noncontributing with any insurance that may be carried by the City, and (3) it cannot be canceled or materially changed except after thirty (30) days' notice by the insurer to the City. Grantee shall furnish City with copies of all such policies, or certificates evidencing the insurance, as set forth in this section. Grantee may effect for its own account any insurance not required under this Ordinance. 13 Grantee shall deliver to City, in the manner provided for notices, copies or certificates of all insurance required by this Ordinance, together with evidence satisfactory to City of payment required for procurement and/or maintenance of the insurance. If Grantee fails or refuses to procure or maintain insurance as required by this Ordinance, or fails or refuses to furnish City with required proof that the insurance has been procured and is in force, City shall have the right at City's election and on thirty (30) days' notice, to declare this franchise forfeit. section 20. Any notice may be served as follows: Upon the City, by serving the City Manager or the City Clerk personally, or by addressing a written notice to the City Manager of the City of Diamond Bar, 21660 E. Copley Drive, Suite 330, Diamond Bar, California 91765, and depositing such notice in the United States mail, postage prepaid. Upon the Grantee, by addressing a written notice to Grantee addressed to General Counsel, Southern California Edison Company, 2244 Walnut Grove Avenue, P.O. Box 800, Rosemead, California 91770 and depositing said notice in the United States mail postage prepaid. Any change of address shall be given as provided for herein for notices. 14 Section 21. The City Council declares that, should any provision, section, paragraph, sentence or word of this Ordinance be rendered or declared invalid as between City and Grantee by any final court action in a court of competent jurisdiction, or by the California Public Utilities Commission, the remaining provisions, sections, paragraphs, sentences, and words of this Ordinance shall remain in full force and effect. Section 22. This Ordinance shall take effect thirty (30) days after its adoption and upon Grantee's filing acceptance of this franchise. 882tiOn 23. The City Clerk of the City of Diamond Bar shall certify to the passage of this Ordinance and shall post this Ordinance in three public places within the City of Diamond Bar within fifteen (15) days after its passage in the manner prescribed by Resolution No. 89-6. 1989. ADOPTED AND APPROVED this ;f ,h day of P , I,RORFRT L. VAN NOR,T City Clerk of the City of Diamond Bar, do hereby certify that the foregoing ordinance was introduced at a regular meeting of the City Council of the City C\1012\ORDSCE\DB 17.4 15 of Diamond Bar on the 6th of June , 1989, and was finally passed at a regular meeting of the City Council of the City of Diamond Bar held on the 20th day of June 1989, by the following vote: AYES: COUNCIL MEMBERS:FORBING, Mayor Pro Tem HORCHER, and Mayor PAPEN NOES: COUNCIL MEMBERS: NONE ABSENT: COUNCIL MEMBERS: MILLER and WERNER_. ABSTAINED: COUNCIL MEMBERS: NO k ATTEST: ty Ciet City of Diapc4id-"Bar-- 16