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HomeMy WebLinkAboutORD NO 4832ORDINANCE NO. 4 & 3 2 ORDINANCE GRANTING TO CALIFORNIA WATER SERVICE COMPANY, A CALIFORNIA CORPORATION, AND ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO CONSTRUCT, MAINTAIN, AND USE, PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING WATER FOR ANY AND ALL PURPOSES WITHIN THE CITY OF BAKERSFIELD. BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. The words or phrases below shall have the following definitions unless they are otherwise defined: A. "Grantee" means California Water Service Company, a corporation organized and existing under and by virtue of the laws of the State of California, and its lawful successors or assigns; B. "City" means the City of Bakersfield, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated or reincorporated form; C. "CPUC" means the California Public Utilities Commission; D. "Streets" means the dedicated right -of -way for public streets, ways, alleys and places within the City as they now or may hereafter exist including, but not limited to, state highways, now or hereafter established within City, and freeways now or hereafter owned by City; E. "Franchise" means and includes any authorization granted hereunder in terms of a non - exclusive franchise, privilege, permit, license, or otherwise to Lay and Use Pipes and Appurtenances for transmitting and distributing Water for all purposes under, along, across, or upon the Streets and will include and be in lieu of any existing or future City requirement to obtain a business license for the privilege of transacting and carrying on its business within the City; F. "Gross Annual Receipts" means all gross operating receipts received by Grantee from the sale of Water to Grantee's customers from the operation of all franchises within the limits of the City less uncollectible amounts and less any refunds or rebates made by Grantee to its customers pursuant to CPUC orders or decisions; a``OAKF r s — Page 1 of 7 Pages — m U O ORIOINRL G. "Pipes and Appurtenances" means pipes, pipelines, mains, services, traps, vents, vaults, manholes, meters, gauges, regulators, valves, appliances, attachments, ditch, flume, conduit and appurtenances, wired and wireless communication equipment, and other property of Grantee located or to be located in, upon, along, across, under or over the streets of City, and used or useful in transmitting and distributing water under this Franchise, including any below ground water facilities abandoned in place by Grantee; H. "Lay and Use" means to lay, construct, erect, install, operate, maintain, use, repair, replace, relocate or remove; I. "Public Property" means City Streets, rights -of -way, and improvements including, but not limited to, all public improvements associated with the Streets that may be affected by Grantee's activities including, but not limited to, landscaping, fire hydrant heads, irrigation systems, street lights, street furniture, sidewalks, sewer systems, storm drain collectors, water mains, traffic signals, traffic stops, and bus shelters. SECTION 2. City hereby grants the Franchise to Grantee subject to the terms, conditions, reservations, exceptions and provisions set forth in City's Charter and California Public Utilities Code Sections 6201, et. seq., commonly known and designated as the "Franchise Act of 1937." SECTION 3. Subject to the terms of this Ordinance, the Franchise will be for two years unless, with the consent of the CPUC, or other lawful authority having jurisdiction, the following occurs: (1) Grantee voluntarily surrenders or abandons it; (2) City purchases or, under eminent domain, condemns and acquires the Pipes and Appurtenances used or useful in the exercise of Grantee's Franchise rights hereunder that are situated within City's territorial limits; or (3) Grantee forfeits this Franchise by failing to comply with its terms. SECTION 4. During the life of this Franchise, Grantee must pay to City two percent of the Gross Annual Receipts received by applicant from the use, operation or possession of this Franchise, which sum shall not be less than one percent of the Gross Annual Receipts derived by applicant from the sale of water within City's limits under all franchises operated by applicant ( "Annual Payment "). If the compensation formula to be paid to a general law city as currently set forth in Public Utilities Code Section 6231(c) is modified, which if applied to the formula in this section would result in a higher annual fee to be imposed on Grantee -- Page 2 of 7 Pages -- FeAKF9 O N," a m U O ORIGINAL than provided for in this section, then Grantee must pay City the higher annual fee as of the effective date of the act modifying the compensation formula. SECTION 5. Grantee must file with the City Clerk within three months after the expiration of the calendar year following the date of the granting of this Franchise, and within three months after the expiration of each and every calendar year thereafter, a duly verified statement ( "Gross Annual Receipts Statement ") showing in detail the total Gross Annual Receipts received by Grantee during the preceding calendar year, or fractional calendar year, from the sale of Water within City. Grantee must pay to City the payments required in this Ordinance within fifteen days after filing its Gross Annual Receipts Statement for that calendar year, or fractional calendar year. If Grantee fails to file a Gross Annual Receipts Statement or make the payments required by this Ordinance, at the time and in the manner required, City may, subject to Section 6, below, declare that Grantee forfeited the Franchise and all of its related rights. SECTION 6. If Grantee fails, neglects or refuses to comply with any of the provisions or conditions prescribed in this Ordinance, and does not, within ten business days after written demand for compliance, begin the work of compliance, or after such beginning does not prosecute the same with due diligence to completion, then City may declare that Grantee forfeited this Franchise and all of its related rights. Said written demand shall specifically identify the provision of this Ordinance with which Grantee has failed to comply and what actions City contends must be taken to bring Grantee's actions into compliance with this Ordinance. City may sue in its own name for the forfeiture of this Franchise in the event of non - compliance by Grantee with any of the conditions hereof after complying with the requirements of this Section. SECTION 7. City has the right at reasonable times and upon reasonable notice, to have the City Clerk, City- designated accountant, or other appropriately qualified agent of City examine all of Grantee's books, vouchers, records and other papers pertinent to the exercise of the Franchise. If Grantee refuses to produce its books, vouchers, records, or other papers pertinent to the exercise of the Franchise at any reasonable time for examination by City at Grantee's office in the City, subject to Section 6, above, City may declare that Grantee forfeited the Franchise and all of its related rights. o``0AKF9N - Page 3 of 7 Pages - b U 9RIOIMdI SECTION 8. Before submitting an application for any type of rate increase in the City of Bakersfield with the CPUC, Grantee will give the City 30 days' notice and provide a presentation to the City Council that includes the justification for any proposed rate increase. SECTION 9. The Franchise does not in any way or to any extent impair City's right to acquire Grantee's property either by purchase or through the exercise of the right of eminent domain, and nothing in this Ordinance may be construed to contract away, modify or abridge City's right to exercise the power of eminent domain. The Franchise must never be given any value before any Court or other public authority in any proceeding of any character in excess of the cost to Grantee of the necessary publication. SECTION 10. By acceptance of this Franchise, Grantee covenants and agrees to perform and be bound by each and all of the terms and conditions imposed in this Ordinance and, as to this Franchise, further agrees to: A. Comply with all lawful ordinances, rules and regulations adopted by the City Council now in place or hereafter adopted governing the construction, maintenance and operation of its pipes, appurtenances, plants, works or equipment. B. Pay City on demand the cost of all repairs to Public Property made necessary by any of Grantee's operations under this Franchise. C. Indemnify, defend, and hold harmless City and City's officers, agents, and employees against any and all liability, claims, actions, causes of action, or demands whatsoever against them or any of them, before administrative or judicial tribunals of any kind whatsoever arising out of, connected with, or caused by Grantee or Grantee's employees, agents, independent contractors, companies, or subcontractors in the performance of, or in any way arising from, the terms and provisions of this Ordinance and the Franchise granted hereunder, whether or not caused in part by a party indemnified hereunder, except for City's active negligence or willful misconduct. Grantee must, on City's request, defend any action against City asserting a claim covered by this indemnity. Grantee shall engage legal counsel of its own choosing to jointly represent City and Grantee under this paragraph. If a conflict of interest exists between Grantee and City in said action, precluding joint representation of Grantee and City by the same legal gAKF9 -- Page 4 of 7 Pages -- OR sn s BgIL11NA6 counsel, Grantee shall choose its own legal counsel as well as City's separate legal counsel. In all such events, Grantee shall pay all judgments, legal fees and related litigation costs for both City and Grantee. City shall not settle any claim or lawsuit subject to this indemnity or defense obligation without the prior written consent of Grantee. D. Grantee agrees to remove and relocate in a timely manner and without expense to City, any Pipes and Appurtenances, and any other facilities or equipment installed, used and maintained under this Franchise, if and when made necessary by any lawful change of grade, alignment or width of any Streets by City or its agents including, but not limited to, the construction of any subway or viaduct, public sewer system, canal, or sump. Grantee's obligation to remove or relocate its facilities or equipment under this Franchise without expense to City also includes relocations made necessary by all public improvements that were previously within the ownership or control of the State of California or the County of Kern but which have subsequently been accepted and maintained by City. SECTION 11. Compliance with Local Laws. A. Grantee must construct, maintain and use all Pipes and Appurtenances in a good and workmanlike manner and in compliance with all lawful and applicable Federal, State and City laws, ordinances, resolutions, regulations, policies, rules, orders, plans and specifications now in effect or as amended or added from time to time during the term of this Franchise except to the extent State or Federal law or regulation preempts those City laws or regulations. B. Upon constructing, maintaining or using any Pipes and Appurtenances or any part thereof, Grantee must expeditiously at its own cost and expense restore to applicable lawful City standards all Public Property disturbed or altered as a result of Grantee's actions to a condition that is the same or substantially similar to their condition immediately prior to the start of that construction or maintenance. Grantee must comply with City's terms and conditions concerning the location within the public right -of -way of the proposed facilities, except to the extent State or Federal law or regulation preempts those terms and conditions. C. Grantee's activities and each restoration of Public Property under this Franchise must be performed in a good and workmanlike manner, and in accordance with the lawful standard plans, specifications, orders, rules and regulations of City and each of its applicable departments, and subject to all o``gAKF9� - Page 5 of 7 Pages - a '" '= sU enIQ�N� lawful fees and exactions, except to the extent State or Federal law or regulation preempts those plans, specifications, orders, rules and regulations. SECTION 12. This Ordinance will become effective thirty days after its passage. SECTION 13. Grantee must reimburse City for all publication expenses incurred by City in connection with the granting of this Franchise within thirty days after City provides Grantee with a written statement of such expenses. SECTION 14. This Franchise will not become effective until Grantee files written acceptance of the Franchise with the City Clerk; provided, however, that Grantee must accept this Franchise within thirty days after the adoption of this Ordinance by the City Council unless the timing for acceptance of the Franchise is otherwise extended by the City Council. When filed, Grantee's acceptance will constitute Grantee's continuing agreement that if and when City annexes property or consolidates additional territory into City limits, this Franchise will be deemed to apply within the limits of that annexation or consolidation. SECTION 15. Grantee may not transfer or assign the Franchise without prior written consent of the City Council evidenced by a duly adopted resolution approving the assignment or transfer and unless the transferee or assignees thereof covenant and agree to perform and be bound by each and all of the terms and conditions imposed in this Ordinance and by the City Charter. Consent to such transfer or assignment shall not be unreasonably withheld, conditioned or delayed. SECTION 16. If Grantee ceases distributing water to its customers through its Pipes and Appurtenances within Grantee's service territory located in the City limits for a period of sixty days the City Council may, by resolution, and subject to Section 6, above, declare this Franchise to be forfeited. The resolution may further provide, at the option of the City Council, and in compliance with all requirements of law, that all works, installations, and equipment of Grantee that have been placed in, on or over the Streets will become City property and all right, title, and interest to those works, installations, and equipment will vest in 0AK,9 -- Page 6 of 7 Pages — OR U � ORIGINAL City. Notwithstanding the foregoing, Grantee reserves all rights and claims available by law or otherwise, to contest and /or protest the adoption of the aforesaid resolution or the subsequent transfer of Grantee's works, installations, and equipment to City. Nothing in this Section 16 shall constitute a waiver of any rights by Grantee whatsoever relative to the transfer of its works, installations, and equipment as above provided. I HEREBY CERTIFY that the foregoing Ordinance was first read at a regular meeting of the City Council of the City on the 4th day of November, 2015, and was passed and adopted at a regular meeting of the City Council held on the 181h day of November, 2015, by the following vote: ✓ I ✓ ✓ ✓ ✓ AYES: COUNCIL MEMBER RIVERA, MAXWELL WEIR, SMITH,. - SULLIVAN, PARLIER COUNCIL MEMBER WlhV- A COUNCIL MEMBER Aj ABSENT: COUNCIL MEMBER A. ^ , CITY CLERK AND EX OFFICKxbf the APPROVFn NOV 18 1015 Council of the City of Bakersfield APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney By RICHARD IGER Deputy City Attorney RI:dil s �w�mru wm miw. npxy a wm we r,.w'. rxm,. �gAKF9 O m. — Page 7 of 7 Pages -- t m J S ORIGINAL AFFIDAVIT OF POSTING DOCUMENTS STATE OF CALIFORNIA) ) ss. County of Kern ) ROBERTA GAFFORD, being duly sworn, deposes and says: That she is the duly appointed, acting and qualified City Clerk of the City of Bakersfield; and that on the 24th day of November. 2015 she posted on the Bulletin Board at City Hall, a full, true and correct copy of the following: Ordinance No. 4832 passed by the Bakersfield City Council at a meeting held on the 18th day of November. 2015 and entitled: ORDINANCE GRANTING TO CALIFORNIA WATER SERVICE COMPANY, A CALIFORNIA CORPORATION, AND ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO CONSTRUCT, MAINTAIN, AND USE, PIPES AND APPURTENANCES FOR TRANSMITTING AND DISTRIBUTING WATER FOR ANY AND ALL PURPOSES WITHIN THE CITY OF BAKERSFIELD. ROBERTA GAFFORD City Clerk and Ex Officio of the Council of the City of Bakersfield By: aj, Ob DEPUTY City Olerk