5931ORDINANCE NO. 5931
AN ORDINANCE OF THE CITY OF ANAHEIM GRANTING TO
SOUTHERN CALIFORNIA EDISON COMPANY, ITS SUCCESSORS AND
ASSIGNS, A NON-EXCLUSIVE FRANCHISE TO USE AND TO
CONSTRUCT AND USE, SOLELY FOR TRANSMITTING ELECTRICITY
THROUGH THE CITY OF ANAHEIM (EXCEPT IN CASES OF
SUBSEQUENT ANNEXATIONS AND OF CUSTOMERS SERVED UNDER
FRINGE AGREEMENTS), POLES, WIRES, CONDUITS AND/OR
APPURTENANCES, IN, ALONG, ACROSS, UPON, OVER AND UNDER
THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES, AS THE SAME
NOW OR MAY HEREAFTER EXIST, WITHIN SAID MUNICIPALITY.
WHEREAS, Section 1400 of Article XIV of the Charter of the City of Anaheim (the
"Charter Section") authorizes the City Council to grant franchises for the use of public streets,
ways, alleys or places for the transmitting or conveying of electricity and power through the
City; and
WHEREAS, Southern California Edison Company has submitted an application for a
franchise pursuant to said Charter Section and Chapter 1.03 of the Anaheim Municipal Code.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES
ORDAIN AS FOLLOWS:
SECTION ONE
Whenever the words or phrases defined in this section are used in this ordinance, 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) "Grantee" shall mean the Southern California Edison Company, and its lawful
successors or assigns;
(b) "City" shall mean the City of Anaheim, a municipal corporation of the State of
California, in its present incorporated form or in any later reorganized, consolidated, enlarged or
reincorporated form, inclusive of all subdivisions and departments thereof;
(c) `City Council" shall mean the City Council of the City;
(d) "Construct and use' or 'constructed and used" shall mean to lay, construct,
excavate, erect, install, operate, maintain. use, repair, modify, replace, relocate or remove
provided that there shall be no increase in either the size or number of SCE facilities, unless
required for Grantee to comply with applicable statutory or regulatory requirements;
(e) "Finance Director" shall mean the Director of Finance of the City;
City; (0 "Engineer" shall mean the City Engineer and Director of Public Works of the
(g) "Franchise" shall mean this Ordinance, granted by the City, and accepted by
Grantee;
(h) "General Manager" shall mean the Public Utilities General Manager of the City;
(i) "Operations" shall include, but not be limited to, (i) the use, maintenance, repair,
inspection, operation, and construction and use of Poles. Wires, and/or Appurtenances, and (ii)
all acts, errors or omissions in Grantee's exercise of its rights under this Franchise.
0) "Poles, wires, conduits and/or appurtenances" shall mean poles, towers, supports,
wires, conductors, cables, guys, stubs, platforms, crossarms, braces, transformers, insulators,
conduits. ducts, vaults, manholes, meters, cut-outs, switches, communication circuits, appliances,
attachments, appurtenances and/or any other property located or to be located in, along, across,
upon, over or under the streets of said City, and used or useful, directly or indirectly, for the
purpose of transmitting electricity through the City; and
(k) "Streets" shall mean the public streets, ways, alleys and places as the same now or
may hereafter exist within said City. The word "streets" shall not include public utility
easements or other easements, licenses, or entitlements of the City, which are not located within
public streets, ways, alleys, and places.
SECTION TWO
(a) This non-exclusive Franchise is hereby granted to the Southern California Edison
Company, its lawful successors and assigns, under and in accordance with the provisions of
Article XIV of the City Charter of the City of Anaheim, and its implementing ordinances. Said
Franchise authorizes Grantee to use and construct and use, solely for transmitting electricity
through the City (except in cases of subsequent annexations and of customers served under
fringe agreements), poles, wires, conduits and/or appurtenances, necessary or proper therefor, in,
along, across, upon, over, and under the streets within the City. This Franchise shall not permit
such poles, wires, conduits and/or appurtenances, or any other property, to be used to distribute,
through any means, to any person or entity other than Grantee, any video, audio, radio, voice, or
data signal, for any purpose other than the transmitting of electricity through the City except as is
permitted by state and federal law. Furthermore, Grantee shall continue to lease excess capacity
in fiber optic cable installed pursuant to this Franchise or the State Telecommunications
Franchise. This Franchise shall only permit Grantee to maintain or remove its facilities existing
as of the effective date of this franchise or which may be added during the term of this Franchise
as is necessary for Grantee to comply with applicable statutory or regulatory requirements.
(b) This Franchise shall be for a term of 30 years, expiring on
31, 2034. This Franchise shall continue in full force and effect unless, with the
approval of the Public Utilities Commission of the State of California, Grantee shall surrender or
abandon the Franchise, or in the event of termination under subsection (c) below.
(c) City shall have the right to terminate this Franchise by ordinance, at any time,
should any of the following events occur: (i) the Grantee fails to comply with any material
provision hereof within ninety (90) days following notice from City, (ii) any material provision
hereof becomes invalid or unenforceable, or, (iii) the City purchases (through its power of
eminent domain or otherwise) all of the franchise property of Grantee. The Grantee shall be
given thirty (30) days written notice prior to the beginning of any termination proceeding. This
remedy of termination shall be in addition to any other legal rights, remedies, or causes of action
the City may have to enforce the provisions of this Franchise.
(d) It is understood and agreed that in accordance with Article XIV of the City
Charter and Anaheim Municipal Code § 1.02.010, unless otherwise agreed by City and Grantee,
Grantee may not distribute electricity or otherwise engage in any retail sale of electricity within
the City without first obtaining a separate franchise from City for such purpose (in addition to the
Franchise granted herein) from City for such specific purpose. It is further understood and
agreed that a franchise is required by the City Charter even though Grantee is physically capable
of serving a customer within the City by poles, wires, conduits, and/or appurtenances of Grantee
that are not located in, on, under, above, or across any streets. This subsection (d) shall be
deemed to be a "material provision" for purposes of SECTION TWO (c) (i) above.
(e) This grant is made in lieu of all other franchises, licenses, permits or other rights
(including but not limited to contractual, statutory, administrative or common law rights), held
by Grantee, or by any successor of the Grantee to any rights under this Franchise, for
transmitting or 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 such franchises, licenses, permits, or other rights, within the limits of this
City, as such limits now or may hereafter exist, in lieu of which this Franchise is granted, with
the exception of County of Orange Franchise Ordinance No. 2226.
SECTION THREE
(a) Grantee shall pay to the City during the life of this Franchise a Franchise Fee
which shall be equal to two percent (2%) of the gross annual receipts of Grantee arising from the
use, operation, or possession of said Franchise.
(b) This SECTION THREE shall be deemed to be a "material provision" for purposes
of SECTION TWO (c)(i) above.
SECTION FOUR
(a) On or before the 3151 day of March of each calendar year during the term of this
Franchise. Grantee shall file with the City Clerk of the City, the original. and with the Director of
Finance of the City, one copy, of a statement showing the following:
(i) The method (and supporting calculations) used to calculate the franchise fees
which are payable to the City in accordance with this Franchise.
(ii) Such other data or information as City may reasonably request to calculate or
determine the amounts which Grantee is obligated to pay City pursuant to
SECTION THREE, provided that the City shall request such data and information
from Grantee in writing and shall deliver said request no less than 60 days prior to
the due date of the above-described statement.
Said statement shall be verified by an authorized agent or authorized officer of Grantee,
and shall be in such form and detail as from time to time shall be reasonably prescribed by the
Director of Finance.
(c) Within fifteen (15) days after the filing of said statement, the Grantee shall pay to
City, via check or wire transfer, at the office of the City Treasurer, in lawful money of the United
States, the sums of money required to be paid by Grantee to City under SECTION THREE for
the calendar year, or fractional calendar year, covered by the statement.
(d) Any neglect, omission or refusal by Grantee to file the verified statement required
under subsection (a) above, or to make any required payment at the time and in the manner
specified shall be deemed a failure to comply with a "material provision" under SECTION TWO
(c)(i) above, provided that Grantee shall not have cured said neglect, omission, or refusal to file
or pay within ninety (90) days following written notice from the City of such failure to file or
pay. The prevailing party in any action to collect or enforce SECTIONS THREE and/or FOUR,
shall be entitled to reasonable attorney's fees.
(e) The City Treasurer, or any certified public accountant, or qualified person
designated by the City, at any reasonable time during business hours, may make examination at
Grantee's offices of its books, accounts, and records, germane to and for the purpose of verifying
the data set forth in the statement required by SECTION FOUR hereof.
SECTION FIVE
Any notices under this Franchise shall be in writing, and may be delivered in person, by
courier service, or by certified mail, return receipt requested, to the other party at the address
shown below, or at such other address as the party may designate by written notice delivered in
the manner provided for herein:
City of Anaheim
Civic Center
Attn: City Manager
200 South Anaheim Boulevard
Anaheim, CA 92805
with a copy to: City Attorney
City of Anaheim
200 South Anaheim Blvd.
Anaheim. CA 92805
with a copy to: City Clerk
Civic Center
200 South Anaheim Blvd.
Anaheim, CA 92805
Southern California Edison Company
P.O. Box 800
2244 Walnut Grove Avenue
Rosemead, CA 91770
Attn: Paul Alcala
with a copy to: Southern California Edison Company
Region Manager
1851 W. Valencia Drive
Fullerton, CA 92833
Attn: Steven K. Nelson
SECTION SIX
(a) The Franchise granted hereunder shall not become effective until written
acceptance thereof shall have been filed by the Grantee with the Clerk of the City. When so
filed, such acceptance shall constitute a continuing agreement of Grantee that if and when the
City shall thereafter annex or consolidate additional territory, any and all franchise rights and
privileges owned by Grantee therein shall likewise be deemed to be abandoned within the limits
of such territory.
(b) This Franchise may not be transferred (voluntarily, involuntarily, or by operation
of law), leased or assigned by Grantee except by consent in writing of the City Council, and
unless the transferee or assignees thereof shall covenant and agree to perform and be bound by
each and all of the terms hereof. Grantee shall file with the City Clerk and City Manager of the
City within thirty (30) days after any sale, transfer, assignment of lease of this Franchise, or any
part hereof, or of any of the rights or privileges granted hereby, written evidence of the same,
certified thereto by the Grantee or its duly authorized officers. In addition to the provisions of
this subsection, Grantee shall further comply with any City ordinance that applies to the transfer
of franchises.
(c) In the event the use of any franchise property is discontinued or
abandoned, Grantee shall promptly notify the Engineer and shall, at the
option of the City, either abandon such property in place in accordance
with the requirements of the City Engineer or remove such property and
restore the previous location thereof to a condition acceptable to the
Engineer within 180 days. If such property is abandoned and if requested
to do so by the Engineer, Grantee shall submit to the Engineer an
instrument, approved by the City Attorney, transferring to the City the
ownership of such abandoned franchise property.
SECTION SEVEN
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 Grantee hereof 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 in respect to Grantee; 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
Grantee of the necessary publication and any other sum paid by it to the City therefor at the time
of the acquisition thereof.
SECTION EIGHT
(a) At City's option, if any portion of any street (surface or subsurface) shall be
damaged by reason of any cause arising from Grantee's operation or construction and use of
Grantee's poles, wires, conduits and/or appurtenances under this grant, Grantee shall, at its own
cost and expense, immediately repair any such damage and restore such portion of street (surface
or subsurface), to as good condition as is practicable., Such repair work shall be done under the
direction of the Engineer, and in compliance with the Engineer's adopted details and
specifications, as the same may be amended from time to time.
(b) Grantee shall indemnify, defend and hold harmless the City, its officers, agents,
employees, representatives and volunteers, from all liability for damages proximately resulting
from any Operations under the Franchise. This subsection (b) shall survive the termination or
expiration of this Franchise and shall continue for so long as franchise property of Grantee is
located within the City.
(c) City shall have the right to change the grade, width or location of any street, or
improve any street in any manner, including but not limited to the laying of any sewer, storm
drain, conduit, water or other pipe, or construction and installation of any pedestrian tunnel,
traffic signal, street lighting facility or other public improvement. If, in the opinion of the
Engineer, such work shall require a change in the position or location of any of Grantee's
facilities or equipment, Grantee, at its sole expense, on a mutually agreed upon schedule, but in
any event within one year after written notice from the Engineer, shall commence the work of
doing any and all things to effect such change in position or location in conformity with the
Engineer's written instructions; provided, however, that Grantee shall not be required to bear the
expense of such work done at the request of the City if and to the extent that such request is on
behalf, or for the benefit, of any private developer or other non-govemmental entity so long as no
expense, direct or indirect, results to the City.
(d) Each provision of this SECTION EIGHT shall be deemed to be a "material
provision" for purposes of SECTION TWO (c)(i) above.
SECTION NINE
Grantee agrees that it shall require any future licensee or other user of its property within
City's boundaries and current licensees upon renewal of current licenses to comply with the
provisions of Title 18 of the Anaheim Municipal Code. Grantee further agrees that it will require
that any such licensee or other user of its property within City's boundaries comply with the
standards set forth in this SECTION NINE. In the event of a conflict between the provisions of
Title 18 and the provisions of this Franchise, the provisions of this Franchise shall control.
Grantee and its Licensees shall comply with the following:
(a) Interior areas of Grantee's property that are visible from the public right of way
shall be kept free of weeds higher than three feet (3') and any and all debris shall be promptly
removed from such areas.
(b) All landscaping, shrubbery, groundeover, vines and other vegetation or living
material required by this SECTION NINE shall be maintained in a healthy condition and
reasonably pruned, trimmed and otherwise given appropriate care and any and all debris shall be
promptly removed from the licensed area(s).
(c) In areas visible from the public right of way, chainlink fencing of existing
licensees or tenants shall either be removed or screened with landscaping upon expiration,
termination or renewal of existing licenses or leases. In such areas, no new barbed wire fencing
shall be installed and existing barbed wire shall be removed from all portions of Grantee's
property in such areas upon expiration, termination or renewal of existing licenses or leases.
SECTION TEN
(a) This Franchise does not relieve the Grantee of any requirement of the City
Charter or of any ordinance, rule, regulation or specification of the City, including, but not
limited to, any requirement relating to street work, street excavation permits, landscaping, or the
use, removal or relocation of property in streets, except as specifically prescribed herein.
(b) Grantee shall construct and use all poles, wires, conduits and/or appurtenances in
accordance with all of the ordinances, rules and regulations heretofore, or hereafter adopted by
the legislative body of this 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.
(C Grantee agrees that any new future distribution or other electrical related facilities
within the City will be undergrounded at the time of installation at Grantee's sole cost and
expense.
(d) Before the work of constructing any poles, wires, conduits, and/or appurtenances
is commenced by Grantee, Grantee shall file with the Engineer plans showing the location
thereof. which shall be subject to the approval of such Engineer; and all such construction shall
be subject to the inspection of said Engineer and done to his or her reasonable satisfaction. All
street coverings or openings of traps. vaults, and manholes shall at all times be kept flush with
the surface of the streets.
(e) The installation and location of any franchise property of Grantee in a street area
shall be subject to the approval of the Engineer. The Engineer shall have the right to give
Grantee such directions for the location of any poles, wires, conduits and/or appurtenances: (i)
as may be reasonably necessary to avoid other utility facilities and structures lawfully in, under,
above or across the streets; or, (ii) when the proposed location of any poles, wires, conduits
and/or appurtenances is otherwise contrary to the public welfare.
(f) Grantee has 47.94 miles of overhead lines within the City. Grantee agrees to
remove at Grantee's expense approximately 15 percent, but in no event less than 7.2 miles, of
these lines within 60 months of execution of the new Franchise . Grantee will begin removal of
approximately 4.55 miles of line associated with a sub -transmission line referred to as the "O"
line, at Grantee's expense, within six months of the execution of the new franchise. Grantee
agrees to remove the balance [7.2 — 4.551 thereafter in conjunction with the City's Five Year
Undergrounding Plan at Grantee's expense. Any additional lines the City requests to have
removed or undergrounded will be done at City expense.
(g) Grantee agrees to grant to the City licenses, subject to CPUC approval, for the use
by the City of a ten foot (10') wide area along the frontage of each of Grantee's rights of way
with frontage along public rights of way for use by the City as landscaped areas. Grantee shall
grant such licenses to the City upon expiration, termination or renewal of existing licenses or
leases for such areas. Grantee further agrees that it shall require future licensees of any adjacent
rights of way and current licensees of any adjacent rights of way at the time of renewal of current
licenses, to relocate any existing fencing or walls to accommodate the City's use of such areas, at
no cost to the City. City shall pay any requested relocation costs with respect to existing
licensees. The City agrees that it shall be responsible for installation and maintenance of
landscaping in such areas at the City's expense as of the effective date of such licenses from
Grantee.
(h) Each provision of this SECTION TEN shall be deemed to be a "material
provision" for purposes of SECTION TWO (c)(i) above.
(i) Grantee and City have an ongoing relationship which may result during the term
of this Franchise in additional terms and/or agreements which may or not be deemed "material
provisions" for purposes of SECTION TWO (c)(i) above and any such documents shall note
their relationship to and the applicability of this Franchise.
SECTION ELEVEN
Grantee agrees to obtain the City's approval, which approval shall not be unreasonably
withheld, of any future development or use of Grantee's properties within the City's boundaries.
M
SECTION TWELVE
Grantee agrees to cooperate, to the fullest extent possible, with the City to construct,
operate and maintain a second point of delivery of electrical energy to the City at a mutually
agreeable location within the eastern portion of the City.
SECTION THIRTEEN
If Grantee shall fail, neglect or refuse to comply with any of the provisions or conditions
hereof, and shall not, within ninety (90) 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, by its legislative body, may declare this Franchise forfeited.
SECTION FOURTEEN
(a) 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 this Franchise; such
payment to be made within ninety (90) days after the City shall furnish Grantee with a written
statement of such expenses.
(b) Not later than thirty (30) days after the publication of this Ordinance, Grantee
shall file with the City Clerk a written acceptance of the Franchise hereby granted, and an
agreement to comply with the terms and conditions hereof.
(c) This Ordinance shall take effect thirty (30) days after its adoption, and shall be
deemed effective as of . The City Clerk shall certify to the adoption of this
Ordinance and the same shall be published once in the Anaheim Bulletin newspaper.
SECTION FIFTEEN
The City Council of the City of Anaheim hereby declares that should any section,
subsection, paragraph, sentence or word of this Ordinance be declared for any reason to be
invalid, it is the intent of the City Council that it would have passed all other portions of this
ordinance independent of the elimination herefrom of any such portion as may be declared
invalid.
SECTION SIXTEEN
Neither the adoption of this Ordinance nor the repeal or suspension of any other
Ordinance of this City shall in any manner affect the prosecution for violations of ordinances
which violations were committed prior to the effective date hereof, nor be construed as a waiver
of anti license or penalty or the penal provisions applicable to any violation thereof. The
provisions of this Ordinance, insofar as they are substantially the same as ordinance provisions
previously adopted by the City relating to the same subject matter, shall be construed as
restatements and continuations and not as new enactments.
THE FOREGOING ORDINANCE is approved and adopted by the City Council of the
City of Anaheim this 27th day of July 2004.
MAYOR pro tem J
A I'TEST:
CIT LERK OF THE CITY OF ANAHEIM
CERTIFICATION
State of California )
County of Orange )
City of Anaheim )
1, 5heryt > e hro d r , City Clerk of the City of Anaheim, California
("City") do hereby certify that the foregoing is a true and correct copy of
Ordingm,p 5931 which was adopted at a regular meeting of the City Council of the
City, held on Jul,27 2oo4 , by the following vote:
AYES: Mayor pro tem Chavez, Council Members McCracken, Hernandez
NOES: none
ABSTENTIONS: Council Member Tait
ABSENT: Mayor Pringle
51761.1
AFFIDAVIT OF PUBLICATION
STATE OF CALIFORNIA, )
) ss.
County of Orange )
I am a citizen of the United States and a resident
of the County aforesaid; l am over the age of
eighteen years, and not a party to or interested in
the above -entitled matter. I am the principal
clerk of the Anaheim Bulletin, a newspaper that
has been adjudged to be a newspaper of general
circulation by the Superior Court of the County
of Orange, State of California, on December 28,
1951, Case No. A-21021 in and for the City of
Anaheim, County of Orange, State of California;
that the notice, of which the annexed is a true
printed copy, has been published in each regular
and entire issue of said newspaper and not in any
supplement thereof on the following dates, to
wit'
August 5, 2004
`I certify (or declare) under the penalty of
perjury under the laws of the State of California
that the foregoing is true and correct".
Executed at Santa Ana, Orange County,
California, on
Date: August 5, 2004
t 7[
Signature
i�
Anaheim Bulletin
625 N. Grand Ave.
Santa Ana, CA 92701
(714) 796-2209
PROOF OF PUBLICATION
This space is for the County Clerk's Filuig,Stamp
Proof of Publication of
SIJMMi1AYs118t AM
ORDIN= NO. 5Wt
TO ORDINANCE
T EOF CALW F#UA DISOON OOAiVAOF MW,, ITS SIUC
CESBORS AND A33tON6 A NON -V
TO USE AM TO ANDOWPRALLY FOR
ZT�tn IN � M ; CRY OF
TIONS ANPOF COST
AGMEMENTS), IN, AL NG, S, UPON, AND
UNDER THE PUBLIC STREETS, WAYS, ALLEY AND
PLACCES, AS THE SAME NOW OR MAY HEREAFTER EX-
IST, WITHIN SAID MUNICIPALITY.
This ordinance will grant to Southam California Edison Com-
pany, its suc08eeors and assigns, a thirty-year, non-
exclusive franchise to use and to construct and use, Solely
for trenamitting electricity through the City of Aryhteim
(except in cases of subsequent annexations and of cu(rtbm_
ers served under fringe agreements), poles, wires, conduits
and/or appurtenances, in, alonngg acxoss, upon, over and un-
der the public streets, ways, alleys and places, as the same
now or may hereafter exist, within said municiality and pro-
viding compensation to the City of Anaheim In annual pey-
mante of two percent (2%) of gross revenues earned by
grantee from use of the franchise, removal of certain over-
heard electrical facilities owned by grantee in the City of
Anaheim, and used by City of certain of grantee's lands for
landscaping purposes.
I, Sheryl] Schroeder, City Clerk of the City of Anaheim, do
hereby cert. y that the foregoing rs a summary of Ordinance
No. 5831 which ordinance was kttroduced at a regular meet-
ing of the City Council of the City of Anaheim on the 13th
day of July, 2004 and was duly passed and adopted at a
Wmeetinngg of said Council on the 27th day of July,
20D4 by the fogowing roll call vote of the members thereof:
AYES: Council Members: McCracken, Chavez,
Hernandez, Tait
NOES: None
ABSENT: Mayor Pringle
The above summary is a brief description of the SU
ct mat-
ter contained in the text of Ordinance No. 5831, w9ich has
been prepared pursuant to Section 512 of the Charter of the
City of Anaheim. This summery does not include or de-
scribe every provision of the ordinance and should not be
relied on as a substitute for the full text of the ordinance.
To obtain a copy of the full text of the ordinance, please con-
tact the Office of the City Clerk, (714) 765-5166, between
8:00 AM and 5:00 PM, Monday through Friday. There is no
charge for the copy.
Publish: Anaheim Bulletin
August 5, 2004
25-794 _,. 6301387