This chapter shall be known and cited as "Pipeline Franchise Ordinance."
(2319-10/78)
Every franchise hereafter granted by the City to lay, construct, maintain, operate, renew, repair, change the size of, remove or abandon in place pipes and pipelines for the collection, transportation or distribution of oil, gas, gasoline, petroleum, wet gas, hydrocarbon substances, or other substances, together with all manholes, valves, appurtenances and service connections necessary or convenient for the operation of said pipes or pipelines including conduits, cathodic protection devices, wires, cables and other appurtenances necessary or convenient for the exercise of the franchisee's business, in, under, along or across any and all streets within the City of Huntington Beach except as otherwise provided in the particular franchise agreement, shall be granted upon and be subject to the rules, regulations, restrictions and terms and conditions of this chapter, in addition to those rules, regulations, restrictions, terms and provisions set forth in the particular franchise agreement.
(2319-10/78, 3889-9/10)
It is unlawful for any person, firm or corporation to exercise any privilege or franchise to lay or maintain any pipes or conduits in or under any public street, or alley in the City, for the transmission of gas, water, heat, steam, or other substance or to exercise any franchise or privilege for the erection or maintenance, in or upon any public street or alley in the City, of any telephone, telegraph, electric light or power poles, wires, or system, or for the erection of any pole or wire for the purpose of transmitting electrical energy or current, without first having procured a franchise to do so unless such person, firm or corporation is entitled to do so by direct and unlimited authority of the Constitution of the state or the Constitution of the laws of the United States.
(3850-1/10)
Nothing in this chapter or in any franchise agreement granting such a franchise shall be construed to permit the grantee to construct new poles or other facilities aboveground.
(2319-10/78)
For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein:
shall mean City Council of the City of Huntington Beach.
shall mean the Huntington Beach Municipal Code.
shall mean the Public Works Department of the City of Huntington Beach.
shall mean the Public Works Director of the City of Huntington Beach.
shall mean the person to whom the franchise is granted, and any person to whom it is lawfully assigned.
shall mean all property owned or used by the franchisee, in connection with the franchise, including but not limited to, pipelines, pump stations, and service connection with the franchisee's facilities, whether installed by the franchisee as named or originally granted under this franchise or its predecessors or assignors, erected, constructed, laid, operated or maintained in, upon, over, under, along or across any street pursuant to any right or privilege granted by the franchise.
shall mean the time period between the effective date of the franchise agreement granting the franchise and December 31st of the same calendar year, and each calendar year thereafter, during the life of the franchise.
in all cases shall mean the time period between the effective date of the franchise agreement granting the franchise through and including December 31st of that calendar year, and each calendar year thereafter, during the life of the franchise.
shall mean any public highway, freeway (except a state freeway), street, road, alley, lane or court or other public easement, and above and below the same, which now exists or which may hereafter exist in the City of Huntington Beach.
shall mean any pipeline or conduit laid in, along or approximately parallel with any street for the collection, transmission or distribution of any hydrocarbon substances.
shall mean any street or portion thereof designated as a major secondary highway in the circulation element of the Huntington Beach General Plan.
shall mean all streets in the City other than those designated as "major" or "secondary highways" in the circulation element of the Huntington Beach General Plan.
shall mean any individual, person, firm, partnership or corporation.
shall mean a section of the Huntington Beach Municipal Code, unless some other code or statute is mentioned.
shall mean the wire, pipes, or conduits connecting the building or place where the service or hydrocarbons supplied by the franchisee is used or delivered, or is made available for use or delivery, with the supply line or supply main in the highway or with such supply line or supply main on private property.
is mandatory; "may" is permissive.
(2319-10/78, 3889-9/10)
Unless the franchise agreement granting the franchise provides otherwise, the term of the franchise shall be 15 years.
(2319-10/78, 3889-9/10)
The franchisee shall enter into a written agreement with the City of Huntington Beach which grants the franchise and sets forth the terms and provisions therein. The franchisee shall, within 30 days after the passage of the ordinance granting the franchise, file with the City Clerk of the City of Huntington Beach a written acceptance of the terms and conditions of said ordinance. The franchise shall be null and void if the written acceptance is not filed within the prescribed time.
(2319-10/78, 3889-9/10)
The granting of the franchise shall not be construed to prevent the City from granting identical or similar franchise to any person other than the franchisee. Nothing herein contained shall ever be construed so as to exempt the franchisee from compliance with all ordinances, rules or regulations of the City now in effect or which may be hereafter adopted which are not inconsistent with the terms of the franchise.
(2319-10/78, 3889-9/10)
Within 90 days following the date on which any facilities or appurtenances have been laid, removed or abandoned under the franchise, the franchisee shall file a map or maps with the department showing the accurate "as built" location, depth, and size of the facilities or appurtenances so laid, removed or abandoned.
(2319-10/78, 3889-9/10)
The policy of liability insurance required by this chapter shall be issued to franchisee and name the City and its officers, agents, and employees as additional insureds. It shall further indemnify for all liability for personal and bodily injury, death and damage to property arising from activities conducted pursuant to the franchise by providing coverage thereof, including, but not limited to:
A.
Negligent acts or omissions of franchisee and the agents, servants and employees thereof, committed in the conduct of franchise operations.
B.
Provide a combined single limit liability insurance in the amount of $5,000,000.00.
C.
Be noncancellable without 30 days' written notice thereof directed to the City of Huntington Beach.
(2319-10/78, 3889-9/10)
The policy of environmental impairment liability insurance or other environmental insurance policy as approved at the sole discretion of the City as required by this chapter shall ensure liability for environmental impairment including cleanup cost endorsed for "sudden and accidental" contamination or pollution. Such coverage shall be in an amount and form to meet all applicable state and federal requirements but in no event less than $5,000,000.00 per occurrence.
A.
If written with an annual aggregate limit, the policy limit should be three times the above-required occurrence limit.
B.
If written on a claims made form, such insurance shall be endorsed to provide an extended reporting period of not less than two years following termination or cancellation of this franchise.
(3889-9/10)
The policy of workers' compensation insurance, required by this chapter, shall:
A.
Have been previously approved as to substance and form by the California Insurance Commissioner.
B.
Cover all employees of franchisee who in the course and scope of their employment to conduct or do work pursuant to the franchise operations.
C.
Provide for every benefit and payment presently or hereinafter conferred by Division 4 of the Labor Code of the State of California upon an injured employee, including vocational rehabilitation and death benefits.
D.
Be noncancellable without 30 days' written notice thereof directed to the City of Huntington Beach.
(2319-10/78, 3889-9/10)
Franchisee shall file with the City Clerk prior to commencement of any franchise operations either certified copies of said policies, or a certificate of self-insurance coverage subject to the approval of the City Attorney and Risk Manager, or a certificate of insurance for each of the required policies executed by the company issuing the policy, certifying that the policy is in force and providing the following information:
A.
The policy number.
B.
The date upon which the policy will become effective and the date upon which it will expire.
C.
The names of the insured and any additional insureds.
D.
Subject of the insurance.
E.
The type of coverage provided by the insurance.
F.
Amount of limit of coverage provided by the insurance.
G.
A description of all endorsements that form a part of the policy.
H.
In addition to the insurance requirements in this section the insured shall also agree to defend, indemnify and hold harmless the City of Huntington Beach against loss, damage or expense by reason of any suits, claims, demands, and/or judgments caused by insured in the performance of the franchise as provided in Section 3.44.220.
Any franchise operation shall not commence until franchisee has complied with the aforementioned provisions of this section, and any such operation shall be suspended during any period that franchisee fails to maintain said policies in full force and effect. |
(2319-10/78, 3889-9/10, 4034-1/15)
On or before the effective date of the franchise agreement granting the franchise, franchisee shall file and thereafter at all times during the life of the franchise keep on file with the City Treasurer a corporate surety bond approved by the City Attorney running to the City in the penal sum of $100,000.00. In the event that said bond, after it has been so filed, shall at any time during the life of the franchise become insufficient, in the sole opinion of the City Council, the franchisee agrees to renew said bond within 10 days after written notice to do so from the City Treasurer. At such time, the bond shall be increased by a rate set forth by City Council, with a surety to be approved by the City Attorney, conditioned that franchisee shall well and truly observe, fulfill and perform each condition of the franchise and that in case of any breach of condition of the bond the whole amount of the penal sum shall be deemed to be liquidated damages and shall be recoverable from the principal and sureties of the bond. If said bond is not filed prior to the effective date of the ordinance granting the franchise, the award of the franchise may be set aside and the ordinance granting the franchise repealed at any time prior to the filing of said bond and any money paid in consideration for said award of franchise shall be deemed forfeited. In the event that said bond, after it has been so filed, shall at any time during the life of the franchise become insufficient, franchisee agrees to renew said bond, subject to the approval of the City Attorney, within 10 days after written notice to do so from the Director.
(2319-10/78, 3889-9/10)
The franchise is granted and shall be held and enjoined upon each and every condition contained in the franchise agreement, including such conditions contained herein as are incorporated by reference in said franchise agreement, and shall be strictly construed against the grantee. Any neglect, failure or refusal to comply with any of the terms and provisions of the franchise agreement shall constitute grounds for the suspension or forfeiture of the franchise, shall give to the grantee not less than 30 days' notice in writing of any default thereunder. If the grantee does not, within the noticed period, begin the work of compliance or after such beginning does not prosecute the work with due diligence to completion, the Council may hold a hearing, at which the grantee shall have the right to appear and be heard, and thereupon the Council may determine whether such conditions are material and essential to the franchise and whether the grantee is in default with respect thereto and may declare the franchise suspended or forfeited. Notice of said hearing shall be given to the grantee by certified mail not less than five days before said hearing.
(2319-10/78)
The grantee of any franchise awarded to a public utility, by accepting the terms and conditions thereof, stipulates and agrees that in any proceeding for the purpose of adjusting the rates of the grantee, no greater value shall be placed upon the franchise than the actual cash paid therefor by the grantee.
(2319-10/78)
If any street or portion thereof becomes a state highway, except for the right to continue to collect franchise payments in such other rights as by law remain with the City, the state shall succeed to all rights reserved to the City by the franchise.
(2319-10/78, 3889-9/10)
No franchise granted by the City shall in any way impair or affect the right of the City or any successor in authority to acquire the property of the grantee by purchase or condemnation, and nothing contained in such a franchise shall be construed to contract away, modify or abridge either for a term or in perpetuity the City's right of eminent domain in respect to any public utility.
(2319-10/78, 3889-9/10)
The grantee shall pay to the City within 30 days after receiving a statement therefor, all advertising and publishing costs, including the cost of publishing the granting of the franchise, if necessary.
(2319-10/78, 3889-9/10)
The grantee shall not directly or indirectly sell, transfer, assign or lease the franchise or any part thereof, or allow any other person or entity to operate any pipeline or related facility subject to the franchise, except with the written approval of the Council which may be withheld at its sole and absolute discretion. Such sale, transfer, assignment, or lease shall be made only by filing with the Council a copy of the duly executed instrument of such sale, transfer, assignment or lease and a written request for the consent of the Council to such sale, transfer, assignment or lease. If such duly executed instrument and such written request is not filed with the Council before the expiration of 30 days after the effective date of such sale, transfer, assignment or lease, then, upon the expiration of said 30 days, the franchise shall be subject to forfeiture and the Council may, without notice, revoke the franchise. As a condition to the granting of consent to such sale, transfer, assignment or lease, the Council may impose such additional terms and conditions upon the franchisee and upon the grantee or assignee, which the Council may deem to be in the public interest. Such additional terms and conditions shall be expressed by Council resolution. Nothing herein contained shall be construed to grant to the grantee the right to sell, transfer, assign or lease the franchise, or any part thereof, except in the manner aforesaid. This section applies to any assignment, whether by operation of law, by a voluntary act of the grantee or otherwise and includes a transfer of more than 50% of the voting stock of any corporate grantee or the change in identity of any general partner of a franchisee which is a partnership, whether to a third party or to any subsidiary, parent, or affiliated agency of franchisee.
(2319-10/78, 3889-9/10)
A.
The grantee shall be responsible to the City and shall defend, indemnify and hold harmless the City and its officers and employees from all damages or liability arising from the use, operation or maintenance of the facilities erected, constructed, laid, operated or maintained thereunder.
B.
Franchisee hereby agrees to protect, defend, indemnify and hold harmless City, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands defense costs, and consequential damage or liability of any kind or nature, however caused, including those resulting from death or injury to franchisee's employees and damage to franchisee's property, arising directly or indirectly out of the obligations or operations herein undertaken by franchisee, caused in whole or in part by any negligent act or omission of the franchisee, any subfranchisees, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, including but not limited to concurrent active or passive negligence, except where caused by the active negligence, sole negligence, or willful misconduct of the City. Franchisee shall conduct all defense at its sole cost and expense and the City shall approve selection of franchisee's counsel. The City shall be reimbursed for all costs and attorney's fees incurred by the City in enforcing this obligation. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by franchisee.
(2319-10/78, 3889-9/10)
All facilities erected, constructed, laid, operated or maintained under the provisions of the franchise shall be erected, constructed, laid, operated or maintained in accordance with and conforming to all the ordinances, codes, rules and regulations now or hereafter adopted by or prescribed by the Council.
(2319-10/78)
If the City or any other public entity constructs or maintains any storm drain, sewer structure, or other facility or improvement under or across any facility of the grantee maintained pursuant to the ordinance, the grantee shall provide at no expense to the City or other public entity such support as shall be reasonably required to support, maintain and protect grantee's facility.
(3889-9/10)
If any portion of any street shall be damaged by reason of defective facilities laid or constructed under the franchise, the grantee shall, at its own expense, repair any such defect and put such street in as good condition as it was before such damage was incurred, to the satisfaction of the City. If the grantee, within 10 days after receipt of written notice from the City, instructing it to repair such damage, shall fail to commence to comply with such instructions, or, thereafter, shall fail diligently to prosecute such work to completion, then the City immediately may do whatever work is necessary to carry out said instructions at the cost and expense of the grantee, which cost and expense, by the acceptance of the franchise, the grantee agrees to pay upon demand. If such damage constitutes an immediate danger to the public health or safety requiring the immediate repair thereof, the City without notice may repair such damage and the grantee agrees to pay the reasonable cost thereof upon demand.
(2319-10/78, 3889-9/10)
Prior to the issuance of any excavation permit for the construction or installation of any pipeline for the transmission of flammable liquids or gases, written approval shall be obtained from the Director. Said approval may be withheld at the sole and absolute discretion of the Director. Said approval may be based on the determination that no undue fire hazard will be created to life or property in the areas through which the proposed pipeline will be located. To make such determination, consideration shall be given to:
A.
Type of hydrocarbon to be transmitted.
B.
Density of population or structural development in the area through which the pipeline will be located.
C.
Adequacy of water supplies for fire control purposes.
D.
Extent of available public fire protection facilities.
E.
Number and location of shutoff valves in line.
(2319-10/78, 3889-9/10)
Any damage done directly or indirectly to any public property by 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 section, shall be promptly repaired by grantee at its sole cost and expense to as good a condition as it was before such damage was incurred, and to the satisfaction of the Director. If the franchisee, within 10 days after receipt of written notice from the City, instructing it to repair such damage, shall fail to commence to comply with such instructions, or thereafter, shall fail to diligently prosecute such work to completion, the City immediately may do work necessary to carry out said instructions and the cost and expense of the franchisee, which cost and expense, by the acceptance of the franchise, the franchisee agrees to pay upon demand. If such damage constitutes an immediate danger to the public health or safety requiring the immediate repair thereof, the City without notice may repair such damage and the franchisee shall pay all costs incurred.
(3889-9/10)