HomeMy WebLinkAboutORD 794 (1979) ORDINANCE NO. 794
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
i OF TUSTIN. CALIFORNIA, GRANTING TO TUSTIN
WATER WORKS, ITS SUCCESSORS AND ASSIGNS, A
2 FRANCHISE TO LAY AND USE, FOR TRANSMITTING
AND DISTRIBUTING WATER FOR ANY AND ALL PUR-
~ POSES, PIPELINES, AND OTHER FACILITIES IN, A-
LONG, ACROSS. UPON AND UNDER THE PUBLIC
4 STREETS, WAYS', ALLEYS AND PLACES WITHIN THE
5 CITY OF TUSTIN.
The City Council of [he City of Tustin does ordain as follows:
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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
8 meanings assigned to them in the following definitions (unIess, in the given
9 instance, the context wherein they are used shall clearly import a different
meaning):
:tO
( 3.3. (a) The word "Grantee" shall mean the corporation to which the franchise
contemplated in this ordinance is granted and its lawful successors or
12 assigns~
13 (b) The word "City" shall mean the City of Tustin, a municipal corporation
of the SLate of California, in its present incorporated form or in any
3.4 later reorganized, consolidated, enlarged or reincorporated form;
!5 (c) The word "streets" shall mean the public streets, ways:, alleys and~
places as the same now or hereafter exist within the City~
i (d) The phrase "pipes and appurtenances" shall rnean pipes, pipelines and
3.? distribution and transmission systems consisting of mains, distribution
,i and transmission pipes and other properties and facilities, together with
3.8 services, traps, manholes and other necessary or appropriate appur-
tenances, for the purpose of transmitting and distributing water;
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(e) The phrase "lay and use" shall mean to lay, construct, erect, install,
~O operate, maintain, use, repair, replace, relocate or remove.
SeCtion 2: The non-exclusive right, privilege and franchise, subject to each
and all of the terms' and conditions of Division ~, Chapter 2, of the Public UtilitZe~.
Code of the State of California, is hereby granted to TUS'TIN WATER WORKS, a
corporation organized and existing under and by virtue of the laws of the State of
California, to lay and use pipes and appurtenances for transmitting and distributing
water for any and all purposes, under, along, across or upon the streets and
highways within the City of Tustin.
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Section :~: The term of this franchise shall be for five (5) years from and
after January 15, 1976, or until such sooner time that with the consent of the
Public Utilities Commission of the State of California, it is voluntarily surrenderec
or abandoned by the Grantee, or until the State of some municipal or public.
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corporation thereunto duly authorized by law shaIl purchase by voluntary agree-
~0 merit or shall condemn and take under the power of eminent domain, all prope.~ty
31 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
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condemning such property, or until this franchise is forfeited for noncompliance
with its terms by the Grantee.
I Section A: For each full or fractional calendar year of the life of franchise,
2~ the Grantee shall pay to the City at the times hereinafter specified, in lawful
money of the United States, a SLim annually which shall be equivalent to two
percent (2%) of the gross annual receipts of Grantee arising from the use,
4~ operation or' possession of this frar~chise; provided, however, that suci~ payment
5 shall in no event be less than one percent (lt)~) of the gross annual receipts of the
Grantee derived from the sale of viatar within the limits of the City.
6 il Grantee shall, at all times during the term of this franchise, keep or
? !! cause to be kept, true and complete books., records, and accounts of all financial
8 transactions in the operation of air business activities, of whatever nature, con-
ducted in pursuant of the rights granted herein. The records must be supported by
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source documents, such as sales slips, cash register tapes, purchase invoices, or
:10 other pertinent documents.
( ll All of grantee's books of account and records related to this franchise
or to business operations arising from the use, operation or possession of the
franchise shall be kept and made available to the City of Tustin. Tustin shall,
15 through its duly authorized agents or representatives, have the right to examine-
l& and audit said books of accounts and records at any and all reasonable times for the
,.-.. 15 purpose of tierefraining t'ne accuracy thereof, The cost of said audit shall be born
by the City unless the audit reveals a discrepancy of more than five percent (5%)
i6 H between franchise fees due as reported by grantee-in accordance with this
I? franchise and the franchise fees due as determined by said audit. In the event of a
:18 greater discrepancy, the full cost of the audit, as determined by the City, shall be
paid by Grantee.
19 Section 5: The Grantee shall 'file with the Clerk of the City, within three (3)
20 months after the expiration of the calendar year, or fractional calendar year,
2! following the date of the granting of this franchise, and within three C})months
after the expiration of each subsequent calendar year or fraction thereof during
22 which this franchise is in effect, a verified statement showing in detail ~or the
~5 term of the franchise in such calendar or fractional year, as the case may be, the
~4 total gross receipts of the Grantee arising from the use, operation or possession of
this franchise and the total gross receipts of the Grantee derived from the sale of
25 water within the Ciby. The Grantee shall pay to the City within fifteen (15) days
26 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
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~ calendar year, covered by said statement- Any neglect, omission or refusal by said
, ~8 Grantee to file said verified statement, or to pay said percentage, at the tbnes or
~9 in the manner hereinbefore provided, shall constitute grounds for the declaration of
a forfeiture of this franchise and of all rights of Grantee hereunder.
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Section 6: This grant is made in lieu of nil other franchises, rights or
,5! privileges owned by the Grantee to lay and use pipes and appurtenances in the
~.~ streets of the City for transmitting and distributing water and the acceptance of
the franchise hereby granted shall'operate as (i) an abandonment within the limits
of the City of all such other franchises, rights and privileges in lieu of which. this
1 franchise is granted, and (ii) an agreement to comply with the terms and conditions
hereof.
1 ~Section 7: The franchise granted hereunder shall not become effective until
, ;5 written acceptance thereof shall have been filed by the Grantee thereof with the
I Clerk of the City. When so filed, such acceptance shall constitute a continuing:
' agreement of the Grantee that if and when the City shall thereafar annex
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l consolidate with, additional territory, any and all franchises, rights and privileges
i 6 owned by the Grantee therein shall likewise be deemed Lo be abandoned as to all
7 streets within the limits of such territory.
! Section 8: The franchise granted hereunder shall not in any way or to any
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extent impair or affect the right of the City to acquire the property of the Grantee
9 hereof either by purchase or through the exercise of the right of eminent domain,
10 and nothng heroin contained shall be construed to contract a;vay er to modify or
abridge, either for a term or in perpetuity, the City's right of eminent domain in
( 11
respect to the Grantee or any public utility. Nor shall this franchise ever be given
any value before the court or other public authority in any proceeding of any
1;5 character in excess of the cost to the Grantee of the necessary publication and any
other sum paid by it to ti~e City therefor at the time of the acquisition thereof.
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Section 9: The City reserves the right to improve any street or portion
15 thereof over and within the area for which said franchise is granted, including the
!6 change of grade, teloration of right-of-way, realignment of right-of-way, change ir
width, constm~ction or reconstruction of any such street, or any portion thereof.
Within thirty (:~0) days after receipt by Grantee of a notice of writing from the
!8 City of the fact that work is to be done pursuant to any such reserved right and
19 specifying the general nature of the work and the area in which the same is to be
performed, the Grantee shall do all things necessary to protect its franchise
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property during the progress of such work, and if ordered by the City Council the
E! Grantee shall disconnect, remove, or relocate its pipe and appurtenances within
~ street Lo such exLent, in such manner, and for such period as shaU be necessary Lo
permit the performance of such work in an economical manner, and-in accordance
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with generally recognized engineering and construction methods, and to permit the
~ maintenance, operation and use of such public improvement of the street as so
25 improved. All of such things shall be done and the work shall be performed by the
Grantee at its sole cost and expense. In the event that the City shall hereafter
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construct, install, reconstruct or repair any bridge or artificial support in or
~7 underlying any street in which any pipes or appurtenances of the Grantee are
28 located, and in the event that the cost thereof will be increased in order to provide.'~
for the installation, maintenance or operation of any such pipes or appurtenances
or on the street area which said bridge or other artificial support covers or
~0 underlies, then the Grantee shall pay to the City the full amount of such increase
31 of cost, upon completion of such construction, installation or repair. Any damage
done directly or indirectly to any such public improvment by the 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 said Grantee, at its sole cost and expense.
5ectibn 10. The Grantee of this franchise shall:
(a) Construct, install and maintain all pipes ano appurtenances in
accordance and in conformity with all of the applicable ordinances, rules and
regulations heretofore or hereafter adopted by the City Council in the exercise of
its police powers and not in conflict witit the paramount authority of the State of
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California; and as to State hLghways, subject to the provisions of general laws
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relating to the location and maintenance of such facilities therein; in constructing,
installing and maintaining the pipes and appurtenances the Grantee shall make and
backfill all excavations in such manner and way as to leave the surface of the
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public s~.reet, alley, highway, or public place in as good conditi3n as it was prior to
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said excavation, as well as to conform to the statutes of the State of California
1-0 and the ordinance of the City of Tustin as they now exist or may hereafter be
amended with respect to the securing of permits for excavations, filling and
( obstruction of City and State high,rays; every pipeline laid or maintained under this
franchise shall be laid not less t~,.an thirty inches underground, and unless the City
1;5 Council of the City of Tustin shall otherwise direct shall be laid along the sides of
'1 ~ the highways and shah be within fifteen (15) feet from tl~e property line in all
highways sixty (60) feet or less in width, and within five (P) feet of the curb line in
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all other streets.
i ].6 (b) Insure ~ha~ aH the pipes and pipelines to be iaid and maintained
].? under this franchise, shall be pipe of good material and workmanship and of
sufficient size to supply all persor~s residing along the lines of said pipes and
pipeZincs who may desire to use the same with an adequate supply of water for
't9 domestic purposes, and the water to be furnished and distributed through said pipes
~0 and pipelir}es shall be of good $.-:jality, free from all injurious ingredients, and of
sufficient purity to be suitab',.e for domestic use, and that the grantee of said
franchise, his or its successors or assigns, shall, upon request from any person
~8 ~esiding along the line of any of said pipes or pipelines, and upon paynnent of t~is, its
2~ or their reasonable charges for making the connection, and for furnishing water,
furnish to such person an adequate supply of said water for domestic use;
(c) Pay to the City, on demand, the cost of all repairs to public
~5 property made necessary by any operations of the Grantee under this franchise;
26 (d) Indemnify and hold harmless the City and its officers from any
and all da~ages resulting from (i) any operations under this franchise by the
Grantee, and (ii) the failure of the Grantee well and truly to observe and perform
~ 28 each and every provision of ti~is franchise and each and every applicable provision
29 of Division }, Chapter 2, of the Public Utilities Code of the State of California,
and (iii) any litigation arising from any of the foregoing matters or from the
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granting of this franchise. The term "damages" as used in this subparagraph (d)
5Z1 shatl include any final judgment entered against the City in any such litigation, and
~2~ all costs and expenses, including reasonable attorney's fees, incurred by the City in
connection with any such matters or litigation;
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(e) Remove or relocate, without expense Lo the City, any facilities
installed used and maintained under this franchise if and when made necessary by
1 any lawful change or grade, alignment or width o-f any street, or the consLrucction
therein or thereunder of any subway, viaduct, sewer, storm drain, pipeline or other
improvement, made by the City, nor impose upon the City any obligation, to pay
:~ any part of the costs of removal or relocation of any of the pipes and appur-__.
~: tenances when required in order tc~ accommodate construction of any State
freeway.
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(f) File with the City Council within thirty (E~0) days after any sale,
6 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 oc its duly authorized officersl provided however, that no
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sdch sale, transfer, assignment oc lease shall De made without the prior approval by
9 Resolution of the City Council; and, provided, further, that. the foregoing pro-
].0 visions of this sueparagraph (f) shall not apply to any mortgage, transfer in trust or
other hypothecation, to secure an indebtedness of the Grantee; and
( ].'l (g) Promptly repair, at the sole cost and expense of the Grantee and
].2 to the complete satisfaction of the City, any damage to any street or public
].;5 improvement caused directly or indirectly by the 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. All work of laying
~ '15 or repairing of any water pipe shall De conducted with the least possible hindrance
"!6 to the use of the streets for purposes of travel, and as soon as the laying or
repairing of any pipe is completed, el! portions of the street or highway v.:hich have
been excavated or otherwise injurea thereby snail be placed in as good condition as
].8
~ the same were in before the laying of such pipe, ~o the satisfaction of the City
Cot;nci[ of the City of Tustin. Any damage or injury suffered by any person by
reason of any excavation being improperly guarded during said work, shall be borne
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by the grantee of this franchise and his or its successors or assigns.
2]. Section [~. Subject to the provisions of this Section ~Z, the City sha~i durir~g
.j. ~8 the life of this franchise have the right and privilege to take and use water
,,I
the pipelines of the Grantee for fire fighting, training, testing, and protection
purposes without payment by the City of any charge, based on the volume of water
so taken or used or on any other basis. Such water shall be so taken through fire
25 !~ydrants attached at the time of such taking to any of said pipelines as then
located within the area covered by this franchise. No rental shall be payable by
the City on account of any fire hydrants. All presently existing hydrants shall be
maintained by the Grantee. Each fire hydrant hereafter attached to any of such
pipelines sicall be installed at such point on any Such then existing pipelines shall
installed at such point on any such then existing pipeline as shall be designated to~
the Grantee in a written request of the City; it being hereby expressly provided
that the Grantee sha~l not be required for tha~ purpose to extend any of its then
existing pipelines. Except as to fire hydrants installed through the use of funds
furnished by the subdividers or others, the City shall, upon written dora. and of the
Grantee, reimburse the Grantee for its direct cost, as determined by its applicable
records, of installing each new fire hydrant whict~ pursuant to such request of the
:1 City is (i) herealter originally attached to any of such pipelines, (ii) except as
otherwise provided in subparagraph (el of Section lO hereof, reinstailed or
telorated at a new location pursuant.to any such request of the City. All fire
hydrants heroin referred to shah be and remain the property of the Grantee and
shall be maintained at its expense, and, notwithstanding anything to the contrary
5 contained in this Section 11, the Grantee shall at its sole expense replace any fire
hydrant which shall have become unserviceable because of wear and tear, o'r
6 because of destruction oc damage resulting from any casualty not caused by the
City or any of its employees. The Grantee shall not be required to supply water for
8 fire fighting or protection purposes at a pressure higher than that which is
available from time to time as the .result of the Grantee's nor¢nal operation of its
9
water system. If for any reason water service for such purposes is at any time to
:10 be interrupted or diminished, in whole or in part, the Grantee shall give the Fire
ll Chief, or other official of the City responsible for fire protection, notice of such
fact and of the estimated duration thereof, and upon restoration of normal service
the Grantee shall so noLift the Fire Ct~ief or other such City official. During the
:1;3 time of any threatonce or actual water shortage the Grantee may apportion its
:14 available water supply among the users thereof as directed by the Public Utilities
Commission of the State o~ California or other go~'ernmental authority having
15
jurisdiction in the pro,raises, and, in the absence of any such direction, the Grantee
may make such apportionment of the available supply of water in the manner
i7 deemed by it to be equitable under the circunn.%ances then prevailing, and with due
re,'] -d to punlie health ann safety.
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Section i2.
19 {a] If the Grantee sh.._nH fai!, neglect oc refuse to comply witi~ any of
~0 ti~e provisions or conditions hereof, and shah not, within ten (10) days after written
demand lot compliance, beg~n the work of compliance, or after such beg[nn-:.ng shall
not prosecute the same with due diligence to completion, then the City Council
~ may declare this franchise forfeited; and said Grantee, and his or its successo~'s o.~
~3 assigns, shall thereupon and immediately surrender all rights in and to the same,
and said franchise shall be deerned and shall remain nail., vo;,d, and of no. effect.
24
CD) The City may sue in its own name for the forfeiture of this
~5 franchise, in the event of non-co~p[iance by the Grantee, its successors or assigns,
26 with any of the conditions thereof.
Section i:~. The Grantee shah pay to the City, a sum of money sufficient to
reimburse it fo~ all publication and posting expenses incurred by it in connection
~8 with the granting of this franchise; such payment to be made within thirty C~0) days
~9 after the City shah furnish such Grantee with a written staten~ent of such expense.
Section 14. The City Clerk Shall certify to the adoption of this Ordinance
~0
and shall cause the same to be published at least once viithin fifteen (15) days of its
~51 final passage in the TUSTIN NEWS, a newspaper of general circulation published
;5~ within the City of Tusti n. This Ordinance shall take effect thirty (1}0) days after
its adoption-
1 PASSED, APPROVED AND ADOPTED by the City Council of the City of Tustin,
California, at a regular meeting of said City Council held on this 16th day of April, 1979.
MAYOR/
6 ATTEST:
8 , ~
10 RLL: se :D: 11/9/78
RLL: se: R: 11/30/78
JGR: se: R: 1/2/79
11 T/0r/~W D.-6
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STATE OF CALIFORNIA)
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
RUTH C. POE, City Clerk and ex-officio Clerk of the City Council
of the City of Tustin, California, does hereby certify that the
whole number of members of the City Council of the City of Tustin
is five; that the above and foregoing Ordinance No. 794
was. duly and regularly introduced and read at a regular meeting
of the City Council held on the 2nd day of April ,
1979 and was given its second reading and duly passed and adopted
at a regular meeting held on the 16th day of April
1979, by the following vote:
AYES: COUNCIL~N: Schuster, Saltarelli, SharD, Kennedy~.
NOES: COUNCII2,rRN: None
ABSENT: COUNCIL.~SN: None
Publish Tustin News
April 26, 1979