HomeMy WebLinkAboutOrdinance #3654 ORDINANCE NO. 3654
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH GRANTING AN OIL PIPELINE
FRANCHISE TO PACIFIC TERMINALS LLC
WHEREAS, on April 7, 1958 by adoption of Ordinance No. 687, the City Council of the
City of Huntington Beach granted to the Southern California Edison Company ("Edison") a
pipeline franchise (the "1958 Franchise"); and
On March 22, 2002, Edison and Pacific Terminals LLC, a California limited liability
company ("Pacific Terminals," "Pacific" or "Franchisee") filed an Application ("A. 02-03-035")
before the California Public Utilities Commission("CPUC")requesting the CPUC to approve the
sale of certain assets from Edison to Pacific; and
The assets subject to the sale include the 1958 Franchise; and
On July 10, 2003, the CPUC approved with conditions A.02-03-035; and
Pacific Terminals has applied to the Director of Public Works of the City of Huntington
Beach for City consent to the transfer of the 1958 Franchise to Pacific; and
The CityCouncil hereby consents to the transfer b way of this new Franchise to Pacific
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Terminals. By accepting this Franchise, Pacific Terminals hereby relinquishes any interest in the
1958 Franchise. By granting this Franchise, City does not release Edison from any claims the
City presently has or may have in the future against Edison or any entity owned or controlled by
Edison.
NOW, THEREFORE, the City Council of the City of Huntington Beach does ordain as
follows:
Part One
General Provisions
Section 1.0 Grant of Franchise. Pursuant to Chapter 3.44 of the Municipal Code of the
City of Huntington Beach, the City hereby grants a non-exclusive oil pipeline franchise (the
"Franchise") to Pacific Terminals LLC to lay, operate, maintain, use, renew, repair, replace,
move, change the size and number of and remove or abandon in place a system of pipelines,
together with such valves, fittings, manholes, vaults, pumps and other appliances, appurtenances,
attachments or equipment as the Franchisee may deem necessary or convenient for the purpose
of conducting, transporting, conveying and carrying oil and petroleum, extending generally
along the following route: (1) southerly along Bolsa Chica Street from and including the
intersection of Bolsa Chica Street and Westminster Avenue to Warner Avenue; (2) easterly along
Warner Avenue to and including the intersection of Warner Avenue and Edwards Street; (3)
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Ordinance No. 3654
southerly along Edwards Street to and including the intersection of Edwards Street and Garfield
Avenue; (4) easterly along Garfield Avenue to and including the intersection of Garfield Avenue
and Newland Street; (5) southerly along Newland Street from the intersection of Newland Street
and Garfield Avenue to Pacific Coast Highway, all as more particularly depicted as Exhibit A
attached hereto.
In the event that the provisions of Chapter 3.44 and this Franchise conflict, the provisions
of this Franchise shall apply.
This Franchise only authorizes the transportation of oil and petroleum; the Franchise does
not authorize the transportation of any other hazardous or non-hazardous substance, including
but not limited to natural gas and water.
As of the Effective Date, the diameter of the existing pipeline is 12" inches with a length
of 42,830.22 and 20" with a length of 1,463.75 feet . This size shall be used for purposes of
calculating the Franchise Fee pursuant to Section 3.1(a). Franchisee shall give the City ninety
(90) days notice of any change in the size of the pipeline.
Section 1.1 Definitions. For the purpose of this Franchise, the following terms, phrases,
words and their derivations shall have the meaning given herein. 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. "Shall" is
mandatory and "may" is permissive.
(a) "Applicable Law" shall mean all present or future Federal, State, City, or other local
laws, rules, regulations, franchises, codes, orders, permit requirements, judgments, injunctions,
or decrees, or any judgment or order or decree by a court applicable to the Franchisee or any of
Franchisee's Facilities or activities. Applicable Law includes all Municipal Code requirements
for pipeline franchises, encroachment permits, excavation permits, and any other permit or
agreement as required by the Code for any construction performed within the public right-of-way
or within the public utility easements or public service easements located on private property,
including but not limited to Chapters 3.44 and 12.13 of the Municipal Code.
(b) "City" shall mean the City of Huntington Beach, a municipal corporation.
(c) "City Clerk" shall mean the City Clerk of the City of Huntington Beach.
(d) "City Council" shall mean City Council of the City of Huntington Beach.
(e) "City Property" shall mean the property or facilities owned by the City of Huntington
Beach or property owned by any of the City's affiliated agencies.
(f) "Claims" shall mean all claims, losses, liabilities, causes of action, demands,
damages, suits, judgments, debts, costs, contribution or indemnity, expenses (including but not
limited to attorney's fees and costs) fines, penalties, judgments, orders, injunctions and liens of
every kind and nature, including, but not limited to, claims relating to any Environmental
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Ordinance No. 3654
Condition or any Release of any Contaminant, claims for personal or bodily injury, wrongful
death, injury to real or personal property, natural resources damages, and including claims based
on active or passive negligence, gross negligence, contractual, statutory or strict liability, or
otherwise, and any claims seeking judicial or administrative relief, or relating to any
administrative proceedings by any governmental agency, whether or not any such claim is
ultimately defeated.
(h) "Contaminant" shall mean any material, substance or constituent originating from
Franchisee's facilities or activities, whether solid, liquid, semisolid, or gaseous in nature,
including any hazardous substance or waste, hazardous material, chemical compound, petroleum
(or fraction thereof), or any hydrocarbon substance, pollutant or contaminant, as those terms are
defined by any federal, state or local law, rule, regulation or order.
(i) "Day" shall mean calendar day unless otherwise provided.
"Department" shall mean the Public Works Department of the City of Huntington
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Beach.
(k) Director shall mean the Director of the Department of Public Works of the City of
Huntington Beach, or his written designee.
(1) "Effective Date" is July 31, 2003, the date that Pacific Terminals closed escrow on
the acquisition of the Facilities from Edison.
(m) "Environmental Condition" shall mean the presence or evidence of the likely
presence of any Contaminant originating from Franchisee's Facility (s) or from Franchisee's
activities, in surface water, ground water drinking water supply, soil, land surface, subsurface
strata or the air.
(n) "Facility" or "Facilities" shall mean a system of pipelines, together with such valves,
fittings, manholes, vaults, pumps and other appliances, appurtenances, attachments or equipment
as the Franchisee may deem necessary or convenient for the purpose of conducting, transporting,
conveying and carrying oil and petroleum under and across the public streets, ways, alleys and
places within the City of Huntington Beach.
(o) "Fire Chief' shall mean the Chief of the Huntington Beach Fire Department.
(p) "Franchise" shall mean this Ordinance granting a Franchise to Pacific Terminals
LLC, unless some other franchise is specified.
(q) "Franchisee" shall mean Pacific Terminals LLC and its successors and assigns.
(r) "Franchise Payment Period" shall mean the time period between the Effective Date of
this Franchise and December 31 of the same year, and each calendar year thereafter, during the
life of the Franchise.
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(s) "Franchise Report Period" in all cases shall mean the time period between the
Effective Date of this Franchise through and including December 31 of that year, and each
calendar year thereafter, during the life of the Franchise.
(t) "Municipal Code" shall mean the Municipal Code of the City of Huntington Beach.
(u) "Person" shall mean any individual,person, firm,partnership or corporation.
(v) "Release" shall mean any release (as that term is defined in Section 101(22) of the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42
U.S.C. §9601(22)3), or disposal (as that term is defined in Section 1004(3) of the Resource
Conservation and Recovery Act (RCRA) (42 U.S.C. §6903(3)1), or any discharge, active or
passive migration, deposit, storage, burial, emplacement, seepage, filtration or disposal of a
Contaminant into the environment originating from any Facility or from Franchisee's activities.
(w) "Remediation Costs" shall mean all costs and expenses, including the City's current
rate of overhead, incurred by the City in performing and monitoring any Remedial Work.
(x) "Remedial Work" means all "Remedial Action", as that term is defined in Section
101(24) of CERCLA [42 U.S.C. §9601], and all other actions as are necessary or required to
remediate a Release of any Contaminant or an Environmental Condition to a condition which
would allow unimpaired and unrestricted use and development and would comply with
Applicable Law, and including but not limited to all actions necessary to Respond to, Remove, or
Remedy, as those terms are defined in Sections 101(23), 101(24) and 101(25) of CERCLA [42
U.S.C. §9601], a Release of a Contaminant or Environmental Condition.
(y) "Street" shall mean any street, road, highway, alley, lane or court or other public
easement, which now exists or may hereafter exist in the City of Huntington Beach and in which
the City has the authority to grant a Franchise.
Section 1.2 Facilities, Encroachment Permits. Franchisee may not perform any work
on the Facilities without obtaining an encroachment permit from the Director pursuant to
Chapter 12.13 of the Municipal Code. Franchisee further acknowledges that Section 3.44.380
of the Municipal Code does not authorize installation of above-ground appurtenances pursuant to
this Franchise. Notwithstanding Section 3.44.380, Franchisee may apply for an encroachment
permit to install above-ground appurtenances, which the Director may grant in his reasonable
discretion.
Section 1.3 Term. The Franchise Term shall begin on the Effective Date and terminate
fifteen(15) years after the Effective Date, on July 31, 2018. The Director is hereby authorized to
enter into a memorandum of understanding with Pacific Terminals memorializing the Effective
Date and termination date of this Franchise, which memorandum shall be filed with the City
Clerk. No later than 120 days before expiration of the term of this Franchise, Franchisee may
apply in writing to the Director for a five-year extension of the Franchise. If the Director finds
that, throughout the term of this Franchise, Pacific has been in substantial and material
compliance with all the terms of this Franchise, he shall extend the Franchise without further
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Ordinance No. 3654
City Council approval. The Director's decision to extend or not extend the Franchise may be
appealed to the City Council by any person within fourteen (14) days of the Director's decision.
A second five-year extension of this Franchise may be granted pursuant to the above procedures.
Section 1.4 Acceptance of Franchise. The Franchisee shall, within thirty (30) days after
the passage of this Ordinance, file with the City Clerk of the City of Huntington Beach written
acceptance of the terms and conditions of this Franchise in the form set forth in Exhibit B,
attached hereto. The Franchisee shall accept the Franchise within the designated time. The
Franchise shall be null and void if the written acceptance is not filed within the prescribed time.
Section 1.5 Nonexclusive Franchise. The granting of this Franchise shall not prevent the
City from granting any identical or similar franchise to any Person other than the Franchisee.
Section 1.6 Change in Status. If the Franchisee no longer qualifies before the Public
Utilities Commission of the State of California as a common carrier, the Franchisee shall then
have no right to continue to operate hereunder after the date of such disqualification, except with
the consent of the Council granted upon such additional terms and conditions as the Council may
deem proper. Such additional terms and conditions shall be expressed by Ordinance.
Section 1.7 Forfeiture. The Franchise is granted and shall be held and enjoyed upon each
and every condition contained in this Franchise and shall be strictly construed against the
Franchisee. The Franchise shall grant only those rights that are stated in plain and unambiguous
terms. Failure or refusal to comply with any of the conditions of the Franchise, including the
failure to comply with any Applicable Law, shall constitute grounds for the suspension or
forfeiture of the Franchise in accordance with the terms and procedures specified in Part Five.
Section 1.8 Eminent Domain. The Franchise granted hereunder shall not in any way to
any extent impair or affect the right of the City or any successor to acquire the property of the
Franchisee 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 abridge, either for a
term or in perpetuity, the City's rights of eminent domain before any court or other public
authority in any proceeding of any character.
Section 1.9 AssiS gnment. The Franchisee shall not directly or indirectly sell, transfer,
assign or lease the Franchise or any part thereof, or allow another Person or entity to operate any
pipeline or related Facility subject to the Franchise, except with the consent of the Council,
which consent shall not be unreasonably withheld. Such sale, transfer, assignment lease or
agreement shall be made only by filing with the Council a copy of the duly executed instrument
of such sale, transfer, assignment lease or agreement and a written request for the consent of the
Council to such sale, transfer, assignment, lease or agreement. If such duly executed instrument
and such written request is not filed with the Council before the expiration of sixty (60) days
after the effective date of such sale, transfer, assignment or lease, then, upon the expiration of
said sixty (60) days, the Franchise shall be subject to forfeiture and the Council may, without
notice, by Ordinance, repeal the Franchise. As a condition to the granting of consent to such sale,
transfer, assignment, lease or agreement, the Council may impose such reasonable additional
terms and conditions upon the Franchise and upon the Franchisee or assignee, which the Council
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Ordinance No. 3654
may deem to be in the public interest. Such additional terms and conditions shall be expressed by
Ordinance. The Franchisee shall have no 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 Franchisee or otherwise, and includes a transfer of
more than fifty percent (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.
Section 1.10 Prior Franchises. All Facilities erected, constructed, laid, operated or
maintained by the Franchisee in the streets, whether installed by the Franchisee or not, prior to
the Effective Date of this Franchise shall become subject to all the terms and conditions of this
Franchise upon such Effective Date.
Section 1.11 City Officers. Any right or power conferred, or duty imposed upon any
officer, employee or Department of the City shall be subject to transfer to any other officer,
employee, or Department of the City.
Section 1.12 Severability. If any part of this Franchise or the application thereof to any
Person or circumstances is for any reason held invalid by a court of competent jurisdiction, the
validity of the remainder of the Franchise or the application of such provision to other Persons or
circumstances shall not be affected.
Section 1.13 Release of Products or Contaminants. Notwithstanding any other provision
herein, in the event of Release of a Contaminant by Franchisee or from any Facility of
Franchisee or the discovery of an Environmental Condition caused by Franchisee or any Facility
of Franchisee, Franchisee shall immediately conduct such Remedial Work and pay all
Remediation Costs, at its sole expense, as is necessary to fully mitigate and remediate the same
in accordance with all Applicable Law, and as directed by the City except to the extent that City
direction conflicts with Applicable Law. In the event that Franchisee fails to perform necessary
remediation work, City may impose liquidated damages and/or Franchise termination pursuant to
Part 5 of this Franchise, or take any other legal action the City deems appropriate in the
circumstances.
Section 1.14 Compliance With Applicable Law. Until such time as (i) the Franchise
terminates; and (ii) the Franchisee removes all of its Facilities; and (iii) completes any necessary
Remedial Work, Franchisee will comply with all Applicable Law.
Section 1.15 Notices and Records. Upon request, Franchisee will transmit to City
copies of all notices, orders or statements, other than those relating to taxes, sent to or received
from any governmental agency concerning any Facility or any operations conducted by
Franchisee in the City pursuant to the Franchise. Upon request, Franchisee shall send to the City
copies of requested documents concerning any Facility or any operations conducted by
Franchisee pursuant to the Franchise sent to any other governmental agency concurrently with
sending them to the other agency and shall send to City documents received by Franchisee
within five days of receipt by Franchisee unless providing documents to City would conflict with
Applicable Law.
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Ordinance No. 3654
Section 1.16 Access to Records and Property. Upon request,the Franchisee shall permit
the City or its duly authorized representative to examine all of Franchisee's Facilities, together
with any appurtenant property of the Franchisee, and to examine and transcribe any and all
books, accounts, papers, maps, and other records kept or maintained by the Franchisee or under
its control which concern the operations, affairs, transactions or property of the Franchisee with
respect thereto. Said records shall be made available to the City at a location in either the
County of Orange or the County of Los Angeles.
Section 1.17 Removal or Abandonment of Facilities. Subject to Applicable Law, at the
time of the expiration (unless extended), revocation, or termination of this Franchise, or the
permanent discontinuance of the use of its Facilities, or any portion thereof, the Franchisee shall,
within thirty (30) days thereafter make written application to the Director and to the City Fire
Chief for authority to either abandon all or a portion of such Facilities in place or to remove all
or a portion of such Facilities. Thereupon the Director and the Fire Chief jointly and
unanimously shall determine whether any abandonment or removal which is thereby proposed
may be effected without detriment to the public interest or under what conditions such proposal
of abandonment or removal may be safely affected and shall then notify the Franchisee
according to such requirements as shall be specified in the Director's order. In order to make
their determination, the Director and the Fire Chief may require the Franchisee to pressure test
the Facilities, to complete a sample testing program requiring borings and physical examination
of the integrity of the Facilities, and such other steps as they deem reasonable. The Franchisee
shall pay to the City the cost of all tests required to determine whether the Facilities shall be
abandoned or removed.
Within ninety (90) days after receipt of the Director's and Chief s order, Franchisee shall,
pursuant to such order, remediate the soil surrounding the Facilities pursuant to the standards of
Applicable Law, and either (a) remove all or a portion of such Facilities; or (b) abandon in place
all or a portion of such Facilities in accordance with all conditions prescribed. If any Facilities to
be abandoned in place, subject to prescribed conditions, shall not be abandoned in accordance
with all of such conditions, then the Director may make additional appropriate orders, including
if deemed appropriate, an order that the Franchisee shall remove all such Facilities.
If the Director and Fire Chief approve abandonment in place of all or part of the
Facilities, the Franchisee shall pay to the City a fee in the amount the Director reasonably
determines to be equal to one-half of the cost of removal of the Facilities
Section 1.18 Appeal. Any decision made by the Director pursuant to authority delegated
in this Franchise may be appealed by any person to the City Council. For purposes of seeking
judicial review, the decision of the City Council shall be final when notice of the decision is
mailed by first class mail to the Franchisee.
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Ordinance No. 3654
Part Two
Liability, Indemnification and Insurance
Section 2.1 Liabilit . The Franchisee shall be liable to the City for damage to City
property, including but not limited to any street, or any other cost incurred by the City caused by
Franchisee, any of Franchisee's Facilities or by any Person acting on Franchisee's behalf. The
Franchisee shall be held to a standard of strict liability to City for any activity conducted
pursuant to or in connection with the Franchise. The Franchisee's strict liability shall extend to
any consequential damages incurred by the City, and to any costs, including Remediation Costs,
incurred by the City for control or abatement of any Environmental Condition, Release of
Contaminants, Remedial Work or resulting from any activity conducted by or on behalf of
Franchisee pursuant to the Franchise.
Section 2.2 Damage to City Property. Any damage done to City property by Franchisee
in exercising 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 Franchisee at its
sole cost and expense to as good a condition as it was before such damage was incurred, to the
satisfaction of the Director. If the Franchisee, within ten (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 work necessary to carry out said instructions at 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 agrees to pay all costs incurred.
Section 2.3 Indemnification. The Franchisee shall indemnify to the fullest extent
permitted by law, and defend and hold the City, and its Council members, employees,
remediation consultants, environmental consultants, agents and attorneys free and harmless from
and against all Claims arising from or in any way related to the Franchise or activities conducted
by or on behalf of Franchisee. The City and the other parties indemnified herein shall have the
right to approve the attorneys selected by Franchisee to represent them. In the event Franchisee
does not provide attorneys acceptable to the indemnified parties, the indemnified parties may
select attorneys of their choice, so long as the attorney's rates do not exceed the lesser of the rates
the indemnified parties or the Franchisee pays for other legal services. The indemnity provided
herein shall survive the expiration or other termination of the Franchise.
Section 2.4 Insurance. Franchisee shall for the duration of this Franchise, at
Franchisee's sole cost and expense, keep or cause to be kept in full force and effect, for the
mutual benefit of City, its officers, elected or appointed officials, employees, agents and
volunteers, and Franchisee, the following insurance coverages:
(a) A comprehensive form of commercial general liability insurance, including but
not limited to coverage for liability arising from premises, operations,
independent contractors, products-completed operations, personal injury and
advertising injury, and protecting against claims, liability and defense costs
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Ordinance No. 3654
arising from Franchisee's exercise of the rights granted by this Franchise,
including the use, construction, and/or maintenance of the Facilities authorized by
this Franchise, of at least three million dollars ($3,000,000)per occurrence.
(b) Pollution legal liability coverage applicable to bodily injury, property damage,
cleanup costs, and defense, including costs and expenses incurred in the
investigation, defense, or settlement of claims, all in connection with any
pollution loss arising from the Facilities. Coverage shall be maintained in an
amount of at least two million dollars ($2,000,000) per loss, with an annual
aggregate of at least ten million dollars ($10,000,000).
(c) Business auto insurance covering Franchisee's owned, non-owned and hired
vehicles, with limits of not less than three million dollars ($3,000,000) each
accident.
(d) Workers' compensation and employer's liability coverage as required by statute.
All insurance required by provisions of this Franchise shall be carried only in responsible
insurance companies licensed to do business in the state of California and having a Best rating of
no less than AXII. All such policies shall contain endorsements to the effect that (a)the insurer
waives the right of subrogation against the City, including its elected officials, officers,
employees and agents; (b) the policies are primary and noncontributing with any insurance that
may be carried by the City; (c) they cannot be cancelled or materially changed except after
providing no less than thirty days prior written notice to the City; and (d) the City, its elected
officials, officers and employees are named additional insureds under the commercial general
liability and pollution legal liability policies. Franchisee shall furnish City with copies of all
such policies promptly upon receipt of them, or certificates with endorsements evidencing the
insurance, prior to exercising any of the rights granted by this Franchise. Thereafter, Franchisee
shall provide evidence of renewal or replacement of a policy already in existence and required by
this Franchise, no less than twenty days' prior to expiration or other termination of such policy.
The liability policies required by this Section may provide for deductibles or retentions of
up to Ten Thousand Dollars ($10,000.00)per claim.
Notwithstanding the foregoing, if the Franchisee submits appropriate assurances, and
with the joint approval of the City's Director of Public Works, Risk Manager and City Attorney,
which may be denied in their reasonable discretion, the deductible may be increased up to Two
Million Dollars ($2,000,000.00).
The Franchisee shall file with the City Clerk endorsement and certificates 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 with respect to said policy:
(a) The policy number;
(b) The date upon which the policy will become effective and the date upon which it
will expire;
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Ordinance No. 3654
(c) The names of the named insured and any additional insured;
(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.
The Franchisee shall not commence operations until Franchisee has complied with this
Section. The Franchisee shall cease operations if the Franchisee fails to maintain said policies in
full force and effect. In the event any policy is cancelled or reduced in amount or scope or
coverage, the Franchisee shall provide the City, not later than fifteen (15) days prior to the
effective date of the cancellation or reduction in coverage, a certificate of insurance showing that
the Franchisee will have replacement insurance in full force and effect after the effective date of
the cancellation or reduction in coverage and shall provide a certified copy of such replacement
insurance meeting the requirements of this section.
Not more frequently than once every two (2) years, if, in the sole opinion of City, the
amount and/or scope of the above insurance is not adequate, Franchisee shall adjust the
insurance coverage required under this Section as reasonably required by City.
Section 2.5 Faithful Performance; Letter of Credit.
(1) Letter of Credit. The Franchise shall establish a letter of credit in the sum of Twenty
Thousand Dollars ($20,000.00) within forty-five (45) days after the Effective Date of this
Franchise. The letter of credit shall be in a form consistent with Exhibit C, attached hereto. The
City may draw on the letter of credit any amounts assessed as liquidated damages pursuant to
Part Five. The Franchisee shall restore to the letter of credit any amount the City withdraws as
liquidated damages, within thirty(30) days after the City withdraws the money.
The Franchisee may provide cash or a cash equivalent in substitution of the letter of
credit including without limitation a certificate of deposit or savings account, the rights of which
have been signed over to the City. Any interest accrued on such cash or cash equivalent security
shall be paid over annually to the Franchisee.
Franchisee's recourse, in the event Franchisee believes any taking of funds from the
Letter of Credit is improper, shall be through legal action, after the Letter of Credit has been
drawn upon.
(2) Surety Bond_. As an alternative to establishing a Letter of Credit securing the
payment of liquidated damages as set forth in Part Five, the Franchisee may obtain a surety bond
acceptable to the City, to guarantee the sum of Fifty Thousand Dollars ($50,000.00). The Surety
Bond shall be in a form acceptable to the City and shall be submitted within forty-five (45) days
after the Effective Date of this Franchise Agreement. The form of the Surety Bond shall contain,
at a minimum:
(a) That the surety is licensed in California and maintains a Best's Financial Size
Category of IX.
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Ordinance No. 3654
(b) That the surety holds a Certificate of Authority from the United States
Department of the Treasury as an acceptable reinsuring company pursuant to
Department Circular 570 as published in the Federal Register.
(c) The surety shall have a Best's insurance rating of not less than A.
(d) The principal amount of the obligation shall be Fifty Thousand Dollars
($50,000.00).
(e) The obligation by the surety to pay the principal amount to the City is
unconditional pursuant to Civil Code Section 2806.
(f) The liability of the surety for the payment of the principal amount accrues
immediately upon the default of the Franchisee, and without demand or notice
pursuant to Civil Code Section 2807.
(g) The surety shall waive any defense based on or arising out of any defense of the
Franchisee other than payment in full of the principal amount including, without
limitation, a defense based on or arising out of the disability of the Franchisee, the
unenforceability of the principal obligation, or any part thereof, or any change,
renewal or acceleration of the terms of the principal obligation. Further, said
surety shall waive any right to require the City to proceed against the Franchisee
or pursue any other remedy in the City's power. Further, said surety shall have no
right of subrogation and shall waive all presentments, demands for performance,
notices of protest, notices of dishonor and notices of the acceptance of the Surety
Agreement.
(h) The surety shall also undertake to pay reasonable attorneys' fees and other costs
incurred by the City in enforcing the Surety Bond.
(i) Franchisee shall require said surety to submit to the City documentation
evidencing the above requirements and any documentation required of the
Franchisee by the surety for the purpose of ascertaining Franchisee's financial
condition.
Part Three
Compensation
Section 3.1 Rates. As consideration for the Franchise granted, the Franchisee shall pay
to the City in lawful money of the United States the following:
(a) Annual Franchise Fee. Pursuant to City Code § 3.44.260, the Franchisee, as
consideration for the Franchise, shall, within sixty (60) days after the end of each
calendar year during the life of the Franchise, including the year of granting the
g/04 ord/pacific terminals/4/8/04 1 1
Ordinance No. 3654
Franchise, pay to the City a fee based on the formula set forth in Public Utilities
(P.U.) Code § 6231.5. For pipelines with an internal diameter not listed in P.U.
Code § 6231.5, the fees shall be in the same proportion to the fees of a 12-inch-
diameter pipe as the diameter of the unlisted pipe is to 12 inches.
As of the Effective Date of that Franchise, the Franchise Fee shall be $ 0.26 per
linear foot of 12"pipeline and $ 0.44 per linear foot of 20"pipeline, multiplied by
the applicable Consumer Price Index. Consequently, the Franchise Fee for the
prorated period from the Effective Date through December 31, 2003 shall be
$7,095.88. This amount shall be paid within sixty (60) days after the end of
calendar year 2003 or passage of this Ordinance, whichever occurs later. The
Franchise Fee for the prorated period from January 1, 2004 through December 31,
2004 shall be $17,571.70.
(b) Base Construction Fee. In addition to the Annual Franchise Fee, any fees
imposed by Applicable Law and any fees or conditions on any encroachment
permit issued for street work, pursuant to Municipal Code Section 3.44.280, the
Franchisee shall pay at the time of installation, relocation, or replacement of any
pipeline or other Facility covered by the Franchise, a Base Construction Fee of
One Dollar ($1.00) for each foot of pipeline or fractional part thereof installed,
replaced or relocated in, on or under streets or other rights-of-way within the City.
The Base Construction Fee shall be escalated in accordance with the provisions of
Section 3.44.290 of the Code, with the base year being January 1, 2003 through
December 31, 2003. This fee shall not be applicable to work performed pursuant
to Section 4.13.
(c) Publication and Administrative Issuance Costs. The Franchisee shall pay to the
City within thirty (30) days after receiving a statement therefor, all reasonable
administrative and other costs, including attorneys fees, incurred by the City in
processing the application for a Franchise, including but not limited to the
preparation of any reports, statements or studies pursuant to the California
Environmental Quality Act ("CEQA") (Public Resources Code §§ 21000, et seq.)
and any similar Federal statute, or any successor statute, and for all reasonable
advertising and publishing costs, including the cost of publishing the Franchise, if
necessary, incurred in connection with the granting of the Franchise. In the event
that environmental studies or reports are not required, such costs shall not exceed
ten thousand dollars ($10,000).
Section 3.2 Late Franchise Fee Payments.
(a) Fees and rates due from the Franchisee are delinquent if not received by the City
Treasurer on or before the due date during normal business hours. Should the due
date occur on a weekend or legal holiday, the return must be received by the
Treasurer during normal business hours on the first regular working day following
the weekend or legal holiday. A direct deposit, including electronic fund transfers
and other similar methods of electronically exchanging monies between financial
g/04 ord/pacific terminals/4/8/04 12
Ordinance No. 3654
accounts, made by the Franchisee in satisfaction of its obligations under this
Section shall be considered timely if the transfer is initiated on or before the due
date, and the transfer settles into the City's account on the following business day.
(b) If the Franchisee fails to remit any fee or rate on or before the due date, the
Franchisee shall pay a penalty for such delinquencies at the rate of ten percent
(10%) of the total that is delinquent in the remittance.
(c) If the fee or rate is not received by the Treasurer within thirty (30) days following
the date on which it first became delinquent, the Franchisee shall pay a second
delinquency penalty of ten percent (10%) of the amount of fee or rate in addition
to the amount of the fee or rate and the penalty first imposed.
(d) The City Treasurer shall have the power to impose additional penalties upon the
Franchisee for fraud or gross negligence in reporting or remitting at the rate of
twenty-five percent (25%) of the amount of the fee or rate required to be remitted.
(e) In addition to any other penalties imposed by this Section, the Franchisee shall
pay interest at the rate of one and one-half percent (1-1/2%) per month, or any
fraction thereof, on the amount of the fee or rate, exclusive of penalties, from the
date on which the fee or rate first became delinquent,until paid.
(f) For collection purposes only, every penalty imposed and such interest that is
accrued under the provisions of this section shall become a part of the fee or rate
herein required to be paid.
Section 3.3 Proration of Payments. In the event of abandonment of Facilities in
compliance with Section 1.19 or in the event of removal of such Facilities by the Franchisee,the
annual franchise fee required under Section 3.1 shall be prorated for the calendar year in which
such removal or abandonment occurs as of the end of the calendar month in which removed or
abandoned.
Section 3.4 Records. The Franchisee shall keep and preserve for a period of five (5)
years subsequent to the date of the most recent Franchise fee determination all the records
necessary to determine the amount of such Franchise fee.
Part Four
Construction
Section 4.1 Construction Requirements.
(1) Pipelines and all other Facilities shall be constructed and maintained in a good
workmanlike manner and in conformity with Applicable Law and in accordance with the latest
edition of Standard Specifications for Public Works Construction or other construction standards
per the approved encroachment or excavation permit(HBMC 12.10).
g/04 ord/pacific terminals/4/8/04 13
Ordinance No. 3654
(2) All construction shall be accomplished between the hours specified by the City in
the approved encroachment or excavation permit or Applicable Law.
(3) Prior to commencing any Street work, Franchisee shall submit to Director detailed
engineering and traffic control plans, including site-specific hours of construction, prepared
under the supervision of a professional civil engineer or traffic engineer licensed to practice in
the State of California. No construction related activities may be conducted in the Street without
a City- approved encroachment or excavation permit, engineering plans, and a traffic control
plan.
(4) Franchisee shall provide the City a telephone contact number, and staff it during
regular business hours, to enable the City to report any concerns regarding Street work. After
business hours such calls will be routed to an on-call supervisor. In the event that the City
reports any concerns to Franchisee, Franchisee shall respond in a timely manner. Unless the
Director grants an extension, which the Director shall not unreasonably deny, Franchisee shall
correct within twenty-four hours any adverse impact to the Streets caused by Franchisee's
Facilities.
(5) Every working day during construction, Franchisee shall notify the designated
City staff member of the location of the next day's construction activities. The number of
concurrent construction locations may be limited by the City.
i
Section 4_2 Automated Equipment. Within 5 years of the acceptance of the grant of
Franchise, Franchisee shall install such controls, valves and other appurtenances sufficient to
remotely monitor and control the operations of the pipeline and storage interface within the City
of Huntington Beach. Such controls and equipment shall include the capability of remotely
detecting leaks, spills or releases of petroleum products from Franchisee's facilities within the
City of Huntington Beach.
Section 4.3 New Installation or Replacement. New installation or replacement of
pipelines and all other Facilities necessary for the installation, operation, maintenance, and safety
of pipelines and conduits shall be laid and maintained pursuant to Applicable Law. All such
installations or replacements shall be reviewed by the Director as to the most desirable location
in the streets of the City and his or her decision shall be final and binding on the Franchisee
subject to appeal to the Council pursuant to Section 1.18.
Section 4.4 Permits. Where the provisions of any Applicable law, which shall be in
force at the time, require the issuance of an excavation, encroachment or other type of permit, the
Franchisee shall not commence any excavation or encroachment work under the Franchise until
it shall have obtained such permits, except in cases of emergency affecting public health, safety
or welfare or the preservation of life or property, in which case the Franchisee shall apply for
such permits not later than the next business day. The Franchisee's application for a permit
under Applicable Law shall show the length and proposed location of the pipeline and/or other
Facility intended to be installed, and such other facts as the Department may require. The
Franchisee shall pay any and all permit inspection fees to the Department.
g/04 ordlpeclfic Icminalsl4&04 14
Ordinance No. 3654
Section 4.5 Work on and Restoration of Streets. The work of constructing, laying,
replacing, maintaining, repairing or removing all pipelines and other Facilities authorized under
the provisions of this Franchise in, over, under, along or across any Street shall be conducted
pursuant to HBMC §§12.13.120 — 12.13.150 to minimize hindrance to the use of the Street for
purposes of travel, and as soon as such work is completed, all portions of the Street which have
been excavated or otherwise damaged thereby shall promptly and in a workerlike manner be
repaired, replaced or restored and placed in as good condition as the same was before the
commencement of such work. When repairing Street work, Franchisee shall grind and overlay
the full width of any lane or partial lane which has been excavated or otherwise damaged.
In the event that the Franchisee shall fail or neglect to make such Street repair,
replacement, or restoration work, then ten (10) days after notice therefor has been given
Franchisee by the Director,the City may repair, replace or restore said highway at the expense of
Franchisee. The Franchisee agrees to pay to the City the cost of performing such work. The
amount so chargeable shall be the direct cost of such work plus the current rate of overhead
being charged by the City for reimbursable work.
Section 4.6 Failure to Timely Come. Whenever the Franchisee fails to complete any
work required by the terms and conditions of the Franchise, and the permits issued thereunder,
within the time limits required thereby, the City may complete or cause to be completed said
work in compliance with Applicable Law at the expense of the Franchisee. The Franchisee
agrees to pay to the City the cost of performing such work. The amount so chargeable to
Franchisee shall be the reasonable direct cost of said work plus the current rate of overhead being
charged by the City for reimbursable work.
Section 4.7 Completion Statement. Upon the completion of the construction of any
pipelines or other Facilities constructed pursuant to this Franchise, the Franchisee shall submit a
statement to the Director, identifying the permit or permits issued by the Department, the total
length of pipeline, pipeline material, diameter of pipeline, the construction of which was
authorized under such permit or permits, the total length of pipeline or other Facility actually
laid, and as-built drawings.
Section 4.8 Shoring. The Franchisee will provide at its sole cost such shoring or other
support as shall be reasonably required to support, maintain, and protect Franchisee's facility in
connection with any storm drain or sewer constructed by the County of Orange or other duly-
constituted authority or in connection-with any facility constructed by City, or by any successor
agency of any of these agencies.
Section 4.9 Maps. Within ninety (90) days following the date in which any Facilities
have been laid, removed or abandoned under the Franchise, the Franchisee shall file a map or
maps in City-approved digital format with the Department showing the location, depth, and size
of the Facilities so laid,removed or abandoned.
Section 4.10 Facilities. The Franchisee shall have the right to construct, maintain and
repair such traps, manholes, conduits, valves, appliances, attachments and other Facilities as may
be necessary or convenient for the proper maintenance and operation of the pipelines under said
g/04 ord/pacific terminals/4/8/04 15
Ordinance No. 3654
Franchise, and said Facilities shall be kept flush with the surface of the street and so located as to
conform to any Franchise, rule or regulation of the City, or of any permit issued by the
Department in regard thereto and shall not interfere with the use of the street for travel. The
Franchisee shall have the right, subject to such Franchises,rules or regulations as are now or may
hereafter be in force, to make all necessary excavations in said streets for the construction,
maintenance and repair of said Facilities; provided, however, that the Franchisee shall first
obtain an excavation permit from the Department for doing any such work.
Section 4.11 Ordinary Repair. The Franchisee shall obtain an excavation permit from
the Department to perform repair work. In the event of a condition that could cause a threat to
public health or safety and requires emergency repair work, the Franchisee shall proceed with the
repairs and notify the Department as soon as possible,not later than the next business day.
Section 4.12 Breaks or Leaks. If any portion of the street shall be damaged by reason of
breaks or leaks in any pipe, conduit or appurtenance constructed or maintained under the
Franchise, the Franchisee shall, at its own expense, immediately following written or oral
notification thereof, promptly repair any such damage and put such street in as good condition as
it was in before such damage or leak, all to the satisfaction of the Director. The Franchisee shall
obtain an excavation permit from the City for doing any such work.
Section 4.13 Relocation. If, in the sole discretion of the Director, subject to appeal to
the Council pursuant to Section 1.20, the Franchisee's Facilities conflict in any way with the
construction, relocation or repair of any City or Redevelopment Agency facility or project, or
any storm drain or sewer owned by the County of Orange or other authority or any successor
agency of any of these entities, the Franchisee shall relocate its facility to the reasonably nearest
alternative location or other location mutually agreeable to the City and the Franchisee necessary
to accommodate the construction, relocation or repair of the storm drain, sewer or City facility,
either permanently or temporarily, as is determined by the Director to be required within the time
required by the Director. Said relocation shall be accomplished at the Franchisee's sole expense.
If the Franchisee fails to relocate its Facility within the required time, or fails to pave, surface,
grade, repave, resurface or regrade in a timely manner, the City, to the extent permitted by
Applicable Law, may cause the work to be done and shall keep an itemized account of the entire
cost thereof, and the Franchisee shall reimburse the City or other public entity for such cost
within thirty (30) days after presentation to said Franchisee of an itemized account of such costs.
The Franchisee shall hold harmless the City, its officers, departments and employees and the
other public agency, if any, from any liability which may arise or be claimed to arise from the
moving, cutting, or alteration of any of the Franchisee's Facilities, or the turning on or off of
water, oil, or other liquid, gas, or electricity required to be accomplished by City or any other
public agency as a result of the Franchisee's failure to relocate said facility by the date
established by the City or other public agency. The Franchisee shall also be liable for any
consequential damages incurred by the City or other public agency arising from the Franchisee's
failure to timely complete the work required by this section.
Section 4.14 Force Majeure; Franchisee's Inability to Perform. In the event
Franchisee's performance of any of the terms, conditions or obligations of the Franchise is
prevented by any cause beyond Franchisee's reasonable control, such inability to perform shall
g/04 ord/pacific tcrminals/4/8/04 16
Ordinance No. 3654
be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof,
provided Franchisee has notified City in writing within seven (7) days of its discovery of the
occurrence of such an event. In such an instance, Franchisee shall have reasonable time, under
the circumstances, to perform its Franchise obligations or to procure a substitute for such
obligation which is satisfactory to the City. For the purpose of this Section, causes or events not
within the control of the Franchisee shall include, but not be limited to acts of God, sabotage,
riots or civil disturbances, epidemic, freight embargoes, explosion, natural disasters such as
floods, earthquakes, landslides and fires, rationing, and power or communications failures, but
shall not include financial inability of the Franchisee to perform or failure of the Franchisee to
obtain any necessary permits or licenses from other governmental agencies or the right to use the
facilities of any public utility where such failure is materially due to the acts or omissions of the
Franchisee.
Part Five
Breaches of Franchise
Section 5.1 Liquidated Damages. The City finds, and the Franchisee, by its Acceptance,
agrees, that as of the time of the renewal of this Franchise, it is impractical, if not impossible to
reasonably ascertain the extent of damages which will be incurred by the City as a result of a
material breach by the Franchisee of its obligations under this Franchise.
Accordingly, the City, through its Director, Council or a hearing officer, may, in its
discretion assess liquidated damages in the following amounts:
q g g
(1) Up to two hundred dollars ($200.00) for each day of each material breach,
not to exceed six thousand dollars ($6,000.00) for each occurrence of
material breach;
(2) For a second material breach of the same nature occurring within 12
months where a fine or penalty was previously assessed, up to four
hundred dollars ($400.00) for each day of each material breach, not to
exceed twelve thousand dollars ($12,000.00) for each occurrence of the
material breach;
(3) For a third or further material breach of the same nature occurring
within those same 12 months, where a fine or penalty was previously
assessed, up to one thousand dollars ($1,000.00) for each material breach,
not to exceed thirty thousand dollars ($30,000.00) for each occurrence of
the material breach.
(4) Notwithstanding the above, in the event that the Franchisee fails to
complete the street restoration work within the time specified in the
encroachment or excavation permit,the City may require the Franchisee to
pay to the City one thousand dollars ($1,000.00) per day as liquidated
damages for each day construction extends beyond the time specified in
the permit, or any extension thereof.
g/04 ord/pacific terminals/4/8/04 17
Ordinance No. 3654
Prior to assessing any liquidated damages against the Franchisee, the City shall have
provided Franchisee with notice and opportunity to cure in accordance with the provisions of
Section 5.3.
The City finds, and the Franchisee, by its Acceptance, acknowledges and agrees that the
above-described liquidated damages provisions represent a reasonable sum in light of all of the
circumstances. Said liquidated damages sums shall be applicable to each calendar day of delay
following expiration of the 30-day notice period provided above during which Franchisee has
been found by the City Council to be in material default pursuant to this Section. The Franchisee
shall pay any liquidated damages assessed by the City Council within ten(10) days after they are
assessed. If they are not paid within the ten-day period, the City may withdraw them against the
letter of credit or similar security provided pursuant to this Franchise.
Section 5.2 Breach of Franchise; Grounds for Assessment of Penalties and Franchise
Termination. The City reserves the right to terminate the Franchise or assess damages or
penalties against the Franchisee in the event of a material breach of any of the Franchise terms,
or any material term of any applicable federal , state or local statute or regulation, which breach
is not cured following written notice and a reasonable opportunity to cure. Breaches which are
grounds for termination include,but are not limited to:
(1) If the Franchisee fails to comply with Applicable Law.
(2) If the Franchisee practices, or attempts to practice, any fraud or deceit
upon the City.
(3) If the Franchisee becomes insolvent, unable or unwilling to pay its debts,
or upon listing of an order for relief in favor of Franchisee in a bankruptcy
proceeding.
(4) If the Franchisee fails to provide or maintain in full force and effect, the
liability and indemnification insurance letter of credit or bonds as required
by the Franchise.
(5) If the Franchisee willfully fails to provide City with required information
and/or reports in a timely manner and upon City request, as provided in
the Franchise.
(6) If the Franchisee fails to pay the Franchise fee within 60 days after the fee
is due, then the City may terminate the Franchise or impose additional
penalties pursuant to this Section 5 in addition to the penalties and interest
authorized in Section 3.2.
(7) Any other willful act or omission by the Franchisee which materially
violates the terms, conditions or requirements of the Franchise or any
order, directive, rule or regulation issued thereunder and which is not
timely corrected or remedied pursuant to Section 5.3 of the Franchise.
g/04 ord/pacific terminals/4/8/04 18
Ordinance No. 3654
Section 5.3 Procedure For Adjudication of Breaches of The Franchise.
Prior to imposing any sanction or penalty, including termination of the Franchise upon
the Franchisee,the Director shall give the Franchisee notice of the breach and a reasonable
period to correct it.
The Director shall establish a reasonable notice of cure period. The notice to cure period
shall be a minimum of thirty(30) days in all cases (except in cases of emergency where a shorter
time may be prescribed consistent with the nature of the emergency). If the breach is not timely
cured, the Director shall cause to be noticed a public hearing before the City Council (or refer the
matter to a hearing officer, who shall make a recommendation to the City Council) on whether
there has been a material breach of the Franchise, and the appropriate penalty.
Section 5.4 Hearing Procedure.
(1) A full evidentiary public hearing shall be held to determine if the
Franchisee materially breached the Franchise, and what penalty
shall be imposed.
(2) The evidentiary hearing shall be conducted upon a minimum of fourteen
(14) days written notice duly given to the Franchisee and published notice
provided to the public. The Franchisee may present relevant and
appropriate evidence,orally and in documented form. Based on the
evidence presented at the hearing, a written determination shall be made
whether the Franchise should be revoked or the Franchisee should be
penalized. The hearing body may make any other determinations which
are reasonably related to the Franchise.
(3) Should the hearing body find that there has been a material breach of the
Franchise,but that revocation is inappropriate,then it may assess and levy
monetary penalties against the Franchisee as set forth in this Franchise.
(4) The Franchisee shall receive written notice of any action taken following
the hearing.
(5) Pursuant to Section 5.3 of the Franchise,the Director shall cause the
evidentiary hearing to be conducted by a hearing officer or the City
Council. If a hearing officer conducts the hearing, then the City Council
shall hold a subsequent public hearing to determine if the hearing officer's
recommendation should be affirmed, reversed or modified.
(6) The Franchisee shall be entitled to initiate an action in state court to
challenge the determination of the City Council pursuant to California
Code of Civil Procedure §1094.5 within not more than ninety(90) days of
receiving notice of the City Council's action.
g/04 ord/pacific terminals/4/8/04 19
Ordinance No. 3654
Section 6. This Ordinance shall take effect thirty days after its adoption.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the 21 s t day of June 2004.
44
Ma
ATTEST: APPROVED AS TO FORM:
c
City Cler ACiAtto y��
Ltl�loC
REVIEWED AND APPROVED: ITIATE AND APP ED:
��., /
City Ad nistrator Director of Public Works
INITIAT N APPROVED IATED AND APPROVED
Director Administrative Services Fire Chief
g/04 ord/pacific terminals/4/8/04 20
Ordinance No. 3654
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g/04 ord/pacific terminals/4/8/04 21
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Ordinance No. 3654
Y
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EXHIBIT "A"
DESCRIPTION FOR THE CITY OF HUNTINGTON BEACH
Those certain public streets in the City of Huntington Beach, County of Orange, State of
California, described as follows:
Along Bolsa Chica Street from a point in the North boundary of the City of Huntington
Beach near the intersection of Bolsa Chica Street and Rancho Road, South and
Southwesterly 7,204.54 feet of 12" pipeline to a point in the West line of Bolsa Chica
Street, being the West boundary of the City of Huntington Beach, that is North of the
Westminster Channel and Edinger Avenue.
Crossing Edinger Avenue and along Bolsa Chica Street from a point in the North line of
Edinger Avenue, being the West boundary of the City of Huntington Beach, Southerly
5,261.5 feet of 12"pipeline to a point in Warner Avenue.
Along Warner Avenue, South, West and North 4,018.22 feet of 12" pipeline to a point 30
feet North of the centerline of Warner Avenue and of the South line of the land conveyed
by Southern California Edison Company to Pacific Terminals LLC by a Grant Deed
dated July 28, 2003 and recorded August 4, 2003 as'lristrument No. 2003000931977 of
Official Records in the Office of the County Recorder of Orange County.
Along Warner Avenue from a point 30 feet North of the centerline of Warner Avenue
and of the South line of the above land conveyed to Pacific Terminals LLC, South and
West 328.8 feet of 12" pipeline to the Northwesterly right of way line of the East Garden
Grove Wintersburg Channel.
Along Warner Avenue from a point on the Southeasterly right of way line of the East
Garden Grove Wintersburg Channel West 3,408.49 feet of 12". pipeline to a point in
Edwards Street.
Along Edwards Street, South 5,289.12 feet of 12" pipeline to a point in the North line of
Section 34, Township 5 South, Range 11 West, in the Rancho La Bolsa Chica, also being
the centerline of Central Park Drive, that is 12 feet East of the centerline of Edwards
Street.
Along Edwards Street from a point in the centerline of Edwards Street that is 6.05 feet
North of the center of Section 34, Township 5 South, Range 11 West, in the Rancho La
Bolsa Chica, also being the intersection of the centerlines of Ellis Avenue and Edwards
Street, South and Southeasterly 2,640.03 feet of 12" pipeline to a point in Garfield
Avenue.
_ 1
Ordinance No. 3654
Along Garfield Avenue, East 7,857.95 feet of 12" pipeline to the West line of Beach
Boulevard, 132 feet wide, State Highway 39.
Along Garfield Avenue from a point in the East line of Beach-Boulevard, 132 feet wide,
State Highway 39, East and South 2,609.73 feet of 12" pipeline to a point in Newland
Street that is 20 feet South of the North line of Section 1, Township 6 South, Range 11
West, in the Rancho Las Bolsas, also being the centerline of Garfield Avenue.
Along Newland Street from a point 30 feet North of the South line of Section 12,
Township 6 South, Range 11 West, in the Rancho Las Bolsas, also being the centerline of
Atlanta Avenue, Southwesterly, South and East 4,131.84 feet of 12" pipeline to a point in
the East line of Newland Street that is South of the Huntington Beach Channel.
Along Newland Street from a point in the West line of Newland Street that is 35 feet
North of the Westerly prolongation of the centerline of Hamilton Avenue, East, South
and East 1,462.75 feet of 20 pipeline to a point in the East line of Newland Street that is
South of the Huntington Beach Channel.
CROSSINGS OF PUBLIC STREETS
Street Length of crossing Size of pipe
Adams Avenue 40 feet 12"
Indianapolis Avenue 40 feet 1271
OVERALL LENGTH OF 12" PIPELINE=42,830.22 FEET
OVERALL LENGTH OF 20" PIPELINE= 1,462.75 FEET
2
Ordinance No. 3654
Exhibit B ��C xff 15/T
Form of Acceptance of Franchise D/\)
Date
Ms. Joan Flynn, City Clerk
City of Huntington Beach
P.O. Box 190
2000 Main Street
Huntington Beach, CA 92648
Dear Ms. Flynn:
The undersigned, as a duly-authorized officer of Pacific Terminals LLC, hereby accepts the grant
of the oil pipeline Franchise awarded by Ordinance No. 3654 , enacted by the Huntington
Beach City Council on June 21, 2004 By accepting this Franchise, Pacific Terminals
hereby relinquishes any interest in the 1958 Franchise granted to Southern California Edison
pursuant to City Ordinance No. 687.
Dated: PACIFIC TERMINALS LLC,
a Delaware limited liability company,
By:
Irvin Toole, Jr.
President and Chief Executive
Officer
g/04 ord/pacific terminals/5/26/04 22
PACIFIC TERMINALS LLC
July 22, 2004
Ms. Joan Flynn
City Clerk
City of Huntington Beach
2000 North Main Street
Huntington Beach, CA 92648
Subject: Ordinance 3654
Dear Ms. Flynn:
The undersigned, as duly-authorized officer of Pacific Terminals LLC, hereby
accepts the grant of the oil pipeline Franchise awarded by Ordinance No. 3654,
enacted by the Huntington Beach City Council on June 21, 2004. By accepting
this Franchise, Pacific Terminals hereby relinquishes any interest in the 1958
Franchise granted to Southern California Edison pursuant to City Ordinance No.
687.
Dated: July 22, 2004 Pacific Terminals LLC,
A Delaware limited liability
Company,
Kz _
ri T. Wood
3 'Vice President
5900 CHERRY AVENUE,LONG BEACH,CALIFORNIA 90805-4408 (562)728-2800 FAX(562)728-2823
aR d�,va c E IVO . 3tos�
�Xtf161T
Bond No. 6214959
KNOW ALL MEN BY THESE PRESENTS:
That we, PACIFIC TERMINALS LLC; herein referred to as the Principal, and SAFECO
INSURANCE COMPANY OF AMERICA, a corporation organized and existing under the laws of
the State of WASHINGTON,as Surety, are held and firmly bound unto THE CITY OF
HUNTINGTON BEACH, CALIFORNIA hereinafter referred to as Obligee, in the sum of FIFTY
THOUSAND and 00/100 DOLLARS ($50,000.00) lawful money of the United States of America,
to the payment of which sum,well and truly to be made,we bind ourselves, our executors,
administrators, successors and assigns,firmly by these presents.
The Surety shall also undertake to pay reasonable attomeys' fees and other costs incurred by
the City in enforcing the Surety Bond.
THIS OBLIGATION IS SUCH, that whereas, the Principal has made application for a license or
permit to the Obligee for the purpose of, or to exercise the vocation of FRANCHISE
OPERATIONS IN ACCORDANCE WITH CITY ORDINANCE.
NOW,THEREFORE, if the Principal shall faithfully comply with all ordinances, rules and
regulations which have been or may hereafter be in force concerning said License or Permit,
and shall save and keep harmless the Obligee from all loss or damage which it may sustain or
for which it may become liable on account of the issuance of said license or permit to the
Principal, then this Obligation shall be void; otherwise, to remain in full force and effect.
THIS BOND WILL EXPIRE JULY 15, 2005, but may be continued by continuation certificate
signed by Principal and Surety. The Surety may at any time terminate its liability by giving thirty
(30)days notice to the Obligee, and the Surety shall not be liable for any default after such thirty
day notice period, except for defaults occurring prior thereto.
Surety is licensed in California and maintains a Best's Financial Size Category of IX. Surety
holds a Certificate of Authority from the United States Department of the Treasury as an
acceptable reinsuring company pursuant to Department of Circular 570 as published in the
Federal Register. The surety has a Best's insurance rating of not less than A.
The liability of the Surety for the payment of the principal amount accrues immediately upon the
default of the Principal, and without demand or notice pursuant to California Civil Code Section
2807.
Surety hereby waives any defense based on or arising out of any defense of the Principal other
than payment in full of the principal amount including, without limitation, a defense based on or
arising out of the disability of the Principal, the unenforceability of the principal obligation, or any
part thereof, or any change, renewal or acceleration of the terms of the principal obligation.
Further, said surety shall waive any right to require the Obligee to proceed against the Principal
or pursue any other remedy in the Obligee's power. Further, Surety shall have no right of
subrogation and shall waive all presentments, demands for performance, notices of protest,
notices of dishonor and notices of the acceptance of the Surety Agreement.
Ordinance No. 3654
Signed, sealed and dated this 15TH day of JULY, 2004.
PACIFIC TERMINALS LLC
(Principal)
By: l /
SAFECO INSURANCE COMPANY OF AMERICA
(Surety)
By. '
LI A T. SOLOVE, Attomey-in-Fact
As To F(MW
MCPRATH I
ORNEY tl2�
Ordinanc
POWER SAFECO INSURANCE COMPANY OF AMERICA
S A F E C O' GENERAL INSURANCE COMPANY OF AMERICA
OF ATTORNEY HOME OFFICE. SAFECO PLAZA
SEATTLE,WASHINGTON 98185
No. 5233
KNOW ALL BY THESE PRESENTS:
That SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA,each a Washington corporation, does each
hereby appoint
sr..+t.««ass**#**VIVIENNE DOUGLAS;KATHLEEN K.FREUND;LISA T.SOLOVE;KATALIN CHURCH;BRIDGET Y.HENRY;Denver Cotorado'"•t*s.
its true and lawful attomey(s)-in-fact, with full authority to execute on its behalf fidelity and surety bonds or undertakings and other documents of a similar
character issued in the course of its business,and to bind the respective company thereby.
IN WITNESS WHEREOF,SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA have each executed and
attested these presents
this 9th day of June 2004
CHRISTINE MEAD,SECRETARY MIKE MCGAVICK,PRESIDENT
CERTIFICATE
Extract from the By-Laws of SAFECO INSURANCE COMPANY OF AMERICA
and of GENERAL INSURANCE COMPANY OF AMERICA:
"Article V,Section 13.-FIDELITY AND SURETY BONDS...the President,any Vice President,the Secretary,and any Assistant Vice President appointed for that
purpose by the officer in charge of surety operations,shall each have authority to appoint individuals as attomeysAn-fact or under other appropriate titles with
authority to execute on behalf of the.company fidelity and surety bonds and other documents of similar character issued by the company in the course of its
business....On any instrument making or evidencing such appointment,the signatures may be affixed by facsimile. On any instrument conferring such authority
or on any bond or undertaking of the company,the seal, or a facsimile thereof,may,be impressed or affixed or-in any other manner reproduced; provided;
however,that the seal shall not be necessary to the validity of any such instrument or undertaking.."
Extract from a Resolution of the Board of Directors of SAFECO INSURANCE COMPANY OF AMERICA
and of GENERAL INSURANCE COMPANY OF AMERICA adopted July 28,1970.
"On any certificate executed by the Secretary or an assistant secretary of the Company setting out,
(1) The provisions of Article V,Section 13 of the By-Laws,and
(ii) A copy of the power-of-attomey appointment,executed pursuant thereto,and
(iii) Certifying that said power-of-attomey appointment is in full force and effect,
the signature of the certifying officer may be by facsimile,and the seal of the Company may be a facsimile thereof."
I,Christine Mead,Secretary of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA,do hereby certify
that the foregoing extracts of the By-Laws and of a Resolution of the Board of Directors of these corporations,and of a Power of Attorney issued pursuant thereto,
are true and correct,and that both the By-Laws,the Resolution and the Power of Attorney are still in full force and effect.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed the facsimile seal of said corporation
this day of '
COA1p,�o
SEAi. y SEAL a
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of V '�lCOf yVaS���� CHRISTINE MEAD,SECRETARY
S-09741SAEF 2101 ®A registered trademark of SAFECO Corporation
0610S0004 PDF
Ordilynce 1No 3654
Company Profile age of Z
Ca1�on�l�a
Company Profile I nslrance
SAFECO INSURANCE COMPANY OF
AMERICA
STATE FILINGS C-2 SAFECO PLAZA
SEATTLE, WA 98185
800-332-3226
Former Names for Company
Old Name: SELECTIVE AUTO &F INS CO AMER Effective Date: 11-02-1953
Agent for Service of Process
DAWN JEWORSKI, 120 VANTIS SUITE 130 ALISO VIEJO, CA 92656
Unable to Locate the Agent for Service of Process?
Reference Information_
NAIC#: 24740
NAIC Group#: 0163
California Company ID#: 1442-3
Date authorized in California: October 07, 1953
License Status: UNLIMITED-NORMAL
Company Type: Property & Casualty
State of Domicile: WASHINGTON
Lines of Insurance Authorized to Transact
The company is authorized to transact business within these lines of insurance. For an explanation of
any of these terms,please refer to the gloss .
AIRCRAFT
AUTOMOBILE
BOILER AND MACHINERY
BURGLARY
COMMON CARRIER LIABILITY
CREDIT
FIRE
tto://cdinswww.insurance.ca.gov/pls/wu co_prof/idb_co_prof utl.get_co_prof?p_EID=3361 9/3/2004
Ordinance No. 3654
IMPORTANT NOTICE TO SURETY BOND CUSTOMERS REGARDING
THE TERRORISM RISK INSURANCE ACT OF 2002
As a surety bond customer of one of the SAFECO insurance companies (SAFECO Insurance
Company of America, General Insurance Company of Americas, First National Insurance
Company, American States Insurance Company or American Economy Insurance Company), it is
our duty to notify you that the Terrorism Risk Insurance Act of 2002 extends to "surety insurance".
This means that under certain circumstances, we may be eligible for reimbursement of certain
surety bond losses by the :United States government under a formula established by'this Act.
Under this formula, the United States government pays 90% of losses caused by certified acts of
terrorism that exceed a statutorily established deductible to be paid by the insurance company
providing the bond. The Act also establishes a $100 billion cap for the total of all losses to be paid
by all insurers for certified acts of terrorism. Losses on some or all of your bonds may be subject to
this cap.
This notice does not modify any of the existing terms and conditions of this bond, the underlying
agreement guaranteed'by this bond, any statutes governing the terms of this bond, or any
generally applicable rules of law.
At this time,there is no premium charge resulting from this Act.
Ordinance No. 3654
SSE. f�E /0 0/--
Exhibit C 0Rb/nJ}-A)GE -- ..5u oesT y &IJA
/SS�cE,d U��-
IRREVOCABLE STANDBY LETTER OF CREDIT /nJ of
LE'7110e— OF-
[name of issuing bank]Bank
L/C No.
Place of Issuance:
Date of Issuance:
Applicant
Pacific Terminals LLC
Long Beach,CA
Advising Bank
[name]
[address]
[city, state,zip, country]
Reference No.
Beneficiary:
City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
Date and Place of Expiration: 2024 at Huntington Beach,CA
Amount: $20,000
Sir or Madam:
At the request of Pacific Terminals LLC, , Long Beach, CA we hereby establish our
Irrevocable Letter of Credit in your favor up to an aggregate amount of Twenty Thousand U.S. DOLLARS ($20,000),
to expire at our counters on ,2024.
This letter of credit is available for payment against your draft(s)at sight drawn on
[name of issuing bank], accompanied by this original
Standby Letter of Credit and the following documents:
A letter from the Director of Public Works of the City of Huntington Beach certifying that Applicant has failed to
perform as required under the Franchise Ordinance No. Between the City of Huntington Beach and
Pacific Terminals LLC.
We agree with you that all draft(s) drawn under and in compliance with this letter of credit will be honored on
presentation to us as specified in this letter.
g/04 ord/pacific terminals/4/8/04 23
Ordinance No. 3654
This credit is subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500. The number and the date of the credit and the name of our
bank must be quoted on all drafts required.
Please examine this instrument carefully. If you are unable to comply with the terms or conditions, please
communicate with your buyer to arrange for an amendment. This procedure will facilitate prompt handling when
documents are presented.
[signature]
Authorized signature
[signature]
Authorized countersignature
g/04 ord/pacific terminalsf4f8f04 24
Ord. No. 3654
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, JOAN L. FLYNN, the duly appointed, qualified City Clerk of the City of
Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby
certify that the whole number of members of the City Council of the City of Huntington
Beach is seven; that the foregoing ordinance was read to said City Council at a regular
meeting thereof held on the 7th day of June, 2004, and was again read to said City
Council at a re ular meeting thereof held on the 21st day of June, 2004, and was passed
and adopted by the affirmative vote of at least a majority of all the members of said City
Council.
AYES: Sullivan, Coerper, Hardy, Green, Boardman, Cook, Houchen
NOES: None
ABSENT: None
ABSTAIN: None
I,Joan L.Flynn,CITY CLERK of the City of Huntington
Beach and ex-officio Clerk of the City Council,do hereby
certify that a synopsis of this ordinance has been
published in the Huntington Beach Fountain Valley
Independent on July 1,2004.
In accordance with the City Charter of said City
Joan L. Flynn,City Clerk C(J Clerk and ex-officio erk
Deputy city Cie rk of the City Council of the City
of Huntington Beach, California