Chapter 13.14
CALIFORNIA-AMERICAN WATER COMPANY FRANCHISE
Sections:
13.14.030 Duration and effectiveness of grant.
13.14.050 Removal and relocation of facilities.
13.14.070 Faithful performance bond.
13.14.080 Indemnification to city.
13.14.090 Location of franchise properties.
13.14.100 Abandonment of franchise property.
13.14.110 Rights reserved to city.
13.14.120 Surrender of other franchises.
13.14.130 Enforcement remedies.
13.14.150 Publication expenses.
13.14.010 Definitions.
For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meanings given in this chapter. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Provisions of this chapter shall be construed in accordance with the laws of the state of California.
“Franchise property” means all property retained by the grantee in a street under authority of the franchise.
“Freeway” means a highway in respect to which the owners of abutting lands have no right or easement of access to or from their abutting lands or in respect to which such owners have only limited or restricted right or easement of access.
“Grantee” means the person to whom the franchise is granted by the council, and the lawful successor or assignee thereof, and who or which has filed with the city an acceptance and bond, referred to in SMC 13.14.070.
“Person” means any individual, association, copartnership or corporation.
“Streets” means the surface of, and the space above and below, any public street, road, highway, freeway, lane, alley, court, sidewalk, parkway or drive, now or hereafter existing as such within the city. (Ord. 317, 1967; prior code § 2-211)
13.14.020 Franchise granted.
A franchise be and the same is granted to California-American Water Company to lay, construct, install, operate, alter, repair, replace, reconstruct, maintain and use a system of water pipes and pipelines, mains, tubes, conduits and all appliances, attachments, facilities and appurtenances for the purpose of distributing water for domestic, commercial, industrial and irrigation purposes, and for any and all purposes, for which water can be used on, along, in, under, over and/or across any street within the boundaries of the city as the same shall now or hereafter exist. (Ord. 317, 1967; prior code § 2-212)
13.14.030 Duration and effectiveness of grant.
The franchise shall become effective upon written acceptance thereof filed by the grantee with the city clerk accompanied by the performance bond and insurance policy required by SMC 13.14.070 and 13.14.080, provided such written acceptance shall have been filed within thirty days after the ordinance codified in this chapter granting the franchise becomes effective unless the time is extended by the council. (Ord. 1044 § 2 (Att. C), 2017; Ord. 317, 1967; prior code § 2-213)
13.14.040 Franchise payments.
A. The grantee shall, during the life of the franchise, pay to the city a sum annually which shall be equivalent to two percent of the gross annual receipts of grantee arising from the use, operation or possession of the franchise; provided, however, that such payment shall in no event be less than one percent of the gross annual receipts of the grantee derived from the sale of water within the limits of the city under the franchise.
B. Such payments shall be made annually on or before the last day of March of each year for the preceding calendar year and shall be accompanied by a verified statement showing in detail the basis of computation thereof.
C. Such franchise payments shall further, during the initial year of the franchise, be based upon the operations of grantee for the entire calendar year during which the franchise codified in this chapter shall become effective.
D. The city shall have the right to inspect, audit and copy such of the grantee’s books, records and maps as may be pertinent in connection with the operations of the grantee under the franchise. (Ord. 317, 1967; prior code § 2-214)
13.14.050 Removal and relocation of facilities.
The grantee of the franchise shall:
A. Construct, install and maintain all pipes and appurtenances in accordance with and in conformity with all of the ordinances, rules and regulations heretofore or hereafter adopted by the legislative body of the city in the exercise of its police powers and not in conflict with the paramount 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;
B. Pay to the city, on demand, the cost of all repairs to public property made necessary by any operations of the grantee under the franchise;
C. Indemnify and hold harmless the city and its officers from any and all liability for damages proximately resulting from any operations under the franchise, and be liable to the city for all damages proximately resulting from the failure of the grantee well and faithfully to observe and perform each and every provision of Division 3, Chapter 2 of the Public Utilities Code of the state of California;
D. 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, and including the construction, location or relocation of sewers within the limits of the city by either the city or a sanitation district operating within the city; and
E. File with the legislative body of the city within thirty days after any sale, transfer, assignment or lease of the 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. (Ord. 317, 1967; prior code § 2-215)
13.14.060 Forfeiture.
Any neglect, omission or refusal by the grantee to file such verified statements or to pay such percentage of its gross annual receipts at the times and in the manner hereinabove provided, and the continuance of such neglect, omission or refusal for a period of ten days after written notice thereof to the grantee, shall ipso facto work a forfeiture of the franchise and of all rights under this chapter to the city. (Ord. 317, 1967; prior code § 2-216)
13.14.070 Faithful performance bond.
A. The grantee shall, concurrently with the filing of an acceptance of award of the franchise, file with the council, and at all times thereafter maintain in full force and effect for the term of the franchise at its expense, a corporate surety bond, in a company approved by the finance officer and in a form satisfactory to the city attorney, in duplicate, in the amount of ten thousand dollars, and conditioned upon the faithful performance of grantee and that in the event the grantee shall fail to comply with any one or more of the provisions of the franchise, then there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the city as a result thereof, including the full amount of any compensation, indemnification or cost of removal or abandonment of property as prescribed by this chapter which may be in default, plus a reasonable allowance for attorneys’ fees and costs, up to the full amount of the bond; such condition to be a continuing obligation for the duration of the franchise and thereafter until the grantee has liquidated all of its obligations with the city that may have arisen from the acceptance of the franchise by the grantee or from its exercise of any privilege granted in this chapter. The bond shall provide that thirty days’ prior written notice of intention not to renew, cancellation or material change be given to the city.
B. Neither the provisions of this section, any bond accepted by the city pursuant thereto, nor any damages recovered by the city thereunder shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under the franchise or for damages, either to the full amount of the bond or otherwise.
C. The bond provided for in subsection A of this section shall be in lieu of and not in addition to any bond heretofore required by the city for encroachment permits. (Ord. 317, 1967; prior code § 2-217)
13.14.080 Indemnification to city.
A. The grantee agrees that at all times during the existence of the franchise, it will maintain in force, furnish to the city and file with the council, at its own expense, a general comprehensive liability insurance policy, in protection of city, its boards, commissions, officers, agents and employees, in a company approved by the finance officer and in form satisfactory to the city attorney, protecting the city and such persons against liability for loss or damages for personal injury, death and property damage occasioned by the operations of grantee under the franchise, with minimum liability limits of one hundred thousand dollars for personal injury or death to any one person and two hundred thousand dollars for personal injury or death of two or more persons in any one occurrence, and ten thousand dollars for damage to property resulting from any one occurrence.
B. A general public liability policy of grantee containing limits equal to or in excess of sums above set forth shall be sufficient for the purposes of this section and grantee shall furnish to city a certificate of insurance as to the same. (Ord. 317, 1967; prior code § 2-218)
13.14.090 Location of franchise properties.
Franchise property shall be constructed or installed in the streets within the city only at such locations and in such manner as may be approved by the city engineer acting in the exercise of reasonable discretion. Construction or installation of franchise property in all other public places within the city shall be subject to the approval of and regulation by the council. (Ord. 317, 1967; prior code § 2-219)
13.14.100 Abandonment of franchise property.
A. In the event that the use of any franchise property is discontinued for any reason for a continuous period of twelve months or that franchise property has been installed in any street without complying with the requirements of the franchise, the grantee may remove all such property from the street, and in the event of any such removal the grantee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the city engineer.
B. In the event franchise property to be abandoned be not so removed it shall be deemed to be abandoned in place. Upon permanent abandonment of any franchise property in place, such property shall automatically become property of the city. (Ord. 317, 1967; prior code § 2-220)
13.14.110 Rights reserved to city.
A. There is reserved to the city every right and power which is required to be reserved in this chapter or provided by any ordinance of the city, and the grantee by its acceptance of the franchise agrees to be bound thereby and to comply with any action or requirement to the city in its exercise of any such right or power, heretofore or hereafter enacted or established.
B. Neither the granting of the franchise nor any of the provisions contained in this chapter shall be construed to prevent the city from granting any identical, or similar, franchise to any person or corporation other than the grantee.
C. If, at any time during the existence of the franchise, city shall exercise its right to acquire the property of grantee to the extent that such acquisition is authorized or permitted by law, in fixing the price to be paid by the city for the acquisition of grantee’s property, no allowance shall be made for the value of the franchise granted by this chapter, or for increased value of right-of-way, if any, resulting therefrom. (Ord. 317, 1967; prior code § 2-221)
13.14.120 Surrender of other franchises.
This grant is made in lieu of all other franchises, rights or privileges owned by the grantee, or by any successor of the grantee, to any rights under the franchise, for transmitting and distributing water within the limits of the city, as such limits now or may hereafter exist, and the acceptance of the franchise granted shall operate as an abandonment of all such franchises, rights and privileges within the limits of this city, as such limits now or may hereafter exist, in lieu of which this franchise is granted. (Ord. 317, 1967; prior code § 2-222)
13.14.130 Enforcement remedies.
A. If grantee shall fail or refuse to comply with any of the provisions, conditions, obligations or duties set out in the franchise, city may notify grantee in writing to perform such obligations or duties. In the event that grantee shall fail to comply with such notice within thirty days, the city may, at its option, proceed to perform the duties or obligations itself; provided, however, that in cases of emergency, the city may proceed without giving notice to grantee to perform the duties and obligations. All costs incurred by the city thereby shall charge against the grantee. If grantee fails or refuses to pay the amount of such costs within thirty days from the date that such costs are submitted to the grantee in writing, the city may proceed to collect such costs by an action at law.
B. As a separate and alternate remedy, if the grantee shall consistently fail or refuse to comply with any of the provisions set out in the franchise, the city may declare a forfeiture, and/or may sue such persons for damages for such noncompliance, and/or may exercise any other rights or remedies provided by law. (Ord. 317, 1967; prior code § 2-223)
13.14.140 Severability.
If any section, subsection, sentence, clause or phrase of this chapter is for any reason held illegal, invalid or unconstitutional, such invalidity shall not affect the validity of this chapter or any of the remaining portions thereof. The invalidity of any portion of this chapter shall not abate, reduce or otherwise affect any consideration or other obligation required of the grantee by the franchise. (Ord. 317, 1967; prior code § 2-224)
13.14.150 Publication expenses.
The grantee 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 the franchise, and such payment shall be a condition precedent to the vesting of the franchise in the grantee. (Ord. 317, 1967; prior code § 2-225)