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HomeMy WebLinkAbout91-10 CC OrdinanceORDINANCE NO. 91-10 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA GRANTING TO SOUTHERN CALIFORNIA EDISON COMPANY, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO USE AND TO CONSTRUCT AND USE, FOR TRANSMITTING AND DISTRIBUTING ELECTRICITY FOR ANY AND ALL PURPOSES, POLES, WIRES, CONDUITS AND APPURTENANCES, INCLUDING COMMUNICATION CIRCUITS NECESSARY OR PROPER THEREFOR, IN, ALONG, ACROSS, UPON, OVER AND UNDER THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES WITHIN THE CITY OF TEMECULA. THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Whenever in this Ordinance the words or phrases defined in this section 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 Southern California Edison Company and its lawful successors or assigns; B. The word "City" shall mean the City of Temecula, 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 as the same now or may hereafter exist within the City; D. The phrase "poles, wires, conduits and appurtenances" shall mean poles, towers, supports, wires, conductors cables, guys, stubs, platforms, cross arms, braces, transformers, insulators, conduits, ducts, vaults, manholes, meters, cut-outs, switches, communication circuits, appliances, attachments, appurtenances and any other property located or to be located in, along, across, upon, over or under the streets of the City, and used or useful, directly or indirectly for the purpose of transmitting or distributing electricity; E. The phrase "construct and use" shall mean to lay, construct, excavate, encroach, erect, install, operate' maintain, use, repair, replace, relocate, or remove; ORDS 91-10 1 F. The word "franchise" shall mean and include any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to construct 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. Any authorization, in whatever terms granted, shall be in lieu of any business license tax or permit based upon gross receipts or number of employees, but no other license, tax or permit. SECTION 2. The franchise to use and to construct and use, for transmitting and distributing electricity for any and all purposes, poles, wires, conduits and appurtenances, including communication circuits, necessary or proper therefor, in, along, across, upon, over and under the streets within the City of Temecula, is hereby granted to Southern California Edison Company, its lawful successors and assigns, under and in accordance with the provisions of the Franchise Act of 1937. SECTION 3. Said franchise shall be indeterminate, that is to say, said franchise shall endure in full force and effect until, with the consent of the Public Utilities Commission of the State of California, the same shall be voluntarily surrendered or abandoned by the grantee, or until the State or some municipal or public corporation thereunder 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 said franchise and situate within the territorial limits of the state, municipal or public corporation purchasing or condemning such property, or until said franchise shall be forfeited for noncompliance with its terms by the grantee. SECTION 4. The grantee of said franchise, during the life thereof, shall pay to the City two percent (2%) of the gross annual receipts of said grantee arising from the use, operation or possession of said franchise; provided, however, that such payment shall in no event be less than one percent (1%) of the gross annual receipts derived by grantee from the sale of electricity within the limits of the City. It is understood that any administrative, legislative, or judicial modification of said franchise fee or the basis of calculating said fee pursuant to Public Utilities Code, Article 2, Section 6231(c) shall be cause for review and renegotiation of only the amount of this franchise fee at any time within the term of this franchise. SECTION 5. A. On or before the 15th day of March of each calendar year during the term of this franchise and forty-five (45) days after the expiration of the term of this franchise, grantee shall file with the City Clerk of the City, the original, and with the Finance Officer of the City, one copy of a statement showing the gross receipts during the preceding calendar year or fractional calendar year. ORDS 91-10 2 B. On or before the 31st day of March, grantee shall pay to the City Treasurer the money herein required to be paid by grantee to the City upon the basis of the data set forth in said statement. C. Thereafter, no later than the 31st day of the end of each quarter (June, September, and December) of the City fiscal year during the term of this franchise, grantee shall pay to the City Treasurer one-fourth (1/4) of the money herein required to be paid by grantee to the City upon the basis of the data set forth in the statement required by Section 5(a) hereof. By this method of payment, it is contemplated and understood that grantee is in effect paying the money herein required to be paid by grantee to the City under this subsection on the basis of gross receipts for the preceding calendar year and that an adjustment shall be made, as more fully set forth in Section 5(d) hereof. D. On or before the 31 st day of March, grantee shall pay to the City Treasurer, or receive as a refund from the City, as the case may be, a sum of money equal to the difference between the sum of the payments of money made in accordance with Section 5(c) hereof and the annual payment of money herein required to be paid by grantee to the City upon the basis of the data set forth in said statement. E. In the event grantee fails to make any of the payments provided for in this franchise on or before the dates due as herein provided, grantee shall pay as additional consideration both of the following amounts: 1). A sum of money equal to two percent (2%) of the amount due. This amount is required in order to defray those additional expenses and costs incurred by City by reason of the delinquent payment including, but not limited to, the cost of administering, accounting and collecting said delinquent payment and the cost to City of postponing services and projects necessitated by the delay in receiving revenue. 2). A sum of money equal to one percent (1%) of the amount due per month as interest and for loss of use of the money due. SECTION 6. The City Treasurer, or any qualified person designated by the City, at any reasonable time during regular business hours, may make examination at grantee's office or offices, of its books and records, germane to and for the purpose of verifying the data set forth in the statement required by Section 5(a) hereof. All books and records subject to examination by the City Treasurer, or qualified person designated by the City, shall be kept within the grantee's office in the County of Los Angeles. In the event that it becomes necessary for said City Treasurer, or other representative designated by the City, to make such examination at any place other than within said County, then, in that event, all increased costs and expenses to the City necessary or ORD$ 91-10 3 incident to such examination and resulting from such books and records not being available within said County, shall be paid to the City by grantee on demand. SECTION 7. A. Grantee shall remove or relocate without expense to the City any facilities installed, used, and maintained under the franchise if and when made necessary by any lawful change of grade, alignment, or width of any public street, way, alley, or place, including the construction of any subway or viaduct by the City. B. The term "City" as used in this section shall mean the same as the term "municipality" contained in Section 6297 of the Public Utilities Code. C. Notwithstanding the foregoing, City shall be afforded the benefit of all legal interpretations in nature and in scope of the term "municipality" whenever referenced in the Franchise Act of 1937 as cited in Chapter 2, Sections 6201 e,&a~. of the Public Utilities Code. D. When such removal or relocation is required, Grantee shall begin physical field work on the removal or relocation within a reasonable time after written notice from the City Manager, or his designee. If despite its best efforts, Grantee is unable to begin removal or relocation within a reasonable time, Grantee shall give written notice to the City Manager of the reason or reasons for the delay and the date removal or relocation is expected to begin. Grantee shall proceed promptly to complete such required work. SECTION 8. Grantee of the franchise granted hereby shall indemnify, save, defend and hold harmless the City and any duly established City redevelopment agency and the respective officers and employees thereof from all liability for damages proximately resulting from any operations under the franchise. SECTION 9. Grantee shall pay to City on demand the cost of all repairs to City property made necessary by any of the operations of grantee under the franchise granted hereby, provided however that grantee may make repairs to streets, sidewalks, curbs and gutters itself at its own cost in accordance with City specifications if the same can be done without undue inconvenience to the public use of the streets. SECTION 10. This franchise is granted upon each and every condition herein contained, and shall be strictly construed against grantee. Nothing shall pass by the franchise granted hereby to grantee unless it be granted in plain and unambiguous terms. Each of said conditions is a material and essential condition to the granting of the franchise. If grantee shall fail, neglect or refuse to comply with any of the conditions of the franchise granted hereby, and if such failure, neglect or refusal shall continue for more than thirty (30) days after written ORDS 91-10 4 demand by the City Manager for compliance therewith, then City, by the City Council, in addition to all rights, and remedies allowed by law, thereupon may terminate the right, privilege and franchise granted in and by this Ordinance, and all the rights, privileges and the franchise of grantee granted hereby shall thereupon be at an end. Thereupon and immediately, grantee shall surrender all rights and privileges in and to the franchise granted hereby. No provision herein made for the purpose of securing the enforcement of the terms and conditions of the franchise granted hereby shall be deemed an exclusive remedy or to afford the exclusive procedure for the enforcement of said terms and conditions, but the remedies and procedure outlines herein or provided, including forfeiture, shall be deemed to be cumulative. SECTION 11. This franchise is granted in lieu of all other rights and electric franchises owned by and/or granted to Grantee within the limits of the City, as said limits now or may hereafter exist, except any franchise derived under Section 19, Article XI, of the Constitution, as that section existed prior to the amendment thereof adopted October 10, 1911, and the acceptance of this franchise shall operate as an abandonment and extinguishment of all such rights and franchises within the limits of the City, as such limits now or may hereafter exist. When Grantee's acceptance is filed, it shall constitute a continuing agreement of Grantee that if and when the City shall thereafter annex, or consolidate with, additional territory, any and all similar rights and franchises owned by and/or granted to Grantee in such area annexed to, or consolidated with, the City shall likewise be deemed to be abandoned and extinguished. SECTION 12. Grantee shall file with the City Council, within thirty (30) days after any sale, transfer, assignment, or lease of the franchise or any part thereof, or any of the rights or privileges granted thereby, written evidence of the transaction certified to by the grantee or its duly authorized officers. SECTION 13. Nothing in this Ordinance or in the franchise granted hereby shall be construed as in any way impairing City's rights to acquire property of Grantee through the exercise of City's power of eminent domain or through voluntary agreement between City and Grantee. SECTION 14. Grantee shall not sell, transfer, assign or lease this franchise or the rights and privileges granted hereby without filing written evidence of any such sale, transfer, assignment or lease, as provided by Public Utilities Code Section 6298. SECTION 15. The grantee of this franchise shall pay to the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of this franchise; said payment to be made within thirty (30) days after the City shall have furnished said grantee with a written statement of such expenses. SECTION 16. The franchise granted hereby shall not become effective until written acceptance thereof shall have been filed by the grantee with the City Clerk of the City. ORDS 91-10 5 SECTION 17. SEVERABIlITY. The City Council hereby declares that the provisions of this Ordinance are severable and if for any reason a court of competent jurisdiction shall hold any sentence, paragraph, or section of this Ordinance to be invalid, such decision shall not affect the validity of the remaining parts of this Ordinance. SECTION 18. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be posted as required by law. SECTION 19. This Ordinance shall be in full force and effect thirty days after its passage. A summary of this Ordinance shall be published in a newspaper published and circulated in said City at least five (5) days prior to the City Council meeting at which the proposed Ordinance is to be adopted. A certified copy of the full text of the proposed Ordinance shall be posted at City Hall. Within fifteen (15) days after adoption of the Ordinance, the summary with the names of those City Council members voting for and against the Ordinance shall be published again, and the City Clerk shall post a certified copy of the full text of such adopted Ordinance. PASSED, APPROVED AND ADOPTED this 9th day of April, 1991. Ronald J. Parks, Mayor ATTEST: [SEAL] ORDS 91-10 6 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) SS CITY OF TEMECULA ) I, June S. Greek, City Clerk of the City of Temecula, do hereby certify that the foregoing Ordinance No. 91-10 was duly introduced and placed upon its first reading at a regular meeting of the City Council on the 26th day of March, 1991, and that thereafter, said Ordinance was duly adopted and passed at a regular meeting of the City Council on the 9th day of April 9, 1991, by the following vote, to wit: AYES: 5 COUNCILMEMBERS: Birdsall, Lindemans, Moore, Mufioz, Parks NOES: 0 COUNCILMEMBERS: None ABSENT: 0 COUNCILMEMBERS: None k, Cit~ ORDS 91-10 7