HomeMy WebLinkAboutOrdinance #3889 ORDINANCE,NO. 3889
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
AMENDING CHAPTER 3.44 OF THE HUNTINGTON BEACH MUNICIPAL
CODE RELATING TO PIPELINE FRANCHISES
The City Council of the City of Huntington Beach does hereby ordain as follows:
SECTION 1. Chapter 3.44 of the Huntington Beach Municipal Code is hereby amended to
read as follows:
Chapter 3.44
PIPELINE FRANCHISES
(2319-10/78,2676-2/84,3850-1/10)
Sections:
I. GENERAL PROVISIONS AND DEFINITIONS
3.44.010 Short title
3.44.020 General provisions
3.44.025 Franchise required when
3.44.030 Pole lines
3.44.040 Definitions
3.44.050 Term
3.44.060 Franchise agreement
3.44.070 Nonexclusive franchise
3.44.080 Maps
3.44.090 Insurance
3.44.100 Liability insurance
3.44.105 Environmental Impairment Liability Insurance
3.44.110 Workers' compensation insurance
3.44.120 Insurance--Filing
3.44.130 Faithful performance bond
3.44.160 Forfeiture
3.44.170 Value of franchise
3.44.180 State highways
3.44.190 Eminent domain
3.44.200 Publication date
3.44.210 Assignment
3.44.220 Hold harmless
3.44.230 Standards
3.44.231 Conflicting Improvements
3.44.240 Defective facilities
1.44.250 Hazardous substances
3.44.251 Damage to Public Property Generally
II. COMPENSATION
3.44.252 Public Utility Not Transmitting Oil or Products Thereof
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3.44.253 Length
3.44.255 Public Utility Transmitting Oil or Products Thereof
3.44.256 Non-Public Utility Franchises
3.44.260 Basic granting fee
3.44.270 Base annual fee
3.44.271 Payments to City
3.44.280 Base construction charges
3.44.290 Adjustments--Base annual fee
3.44.300 Proration of payments
3.44.310 Records
III. CONSTRUCTION
3.44.320 Construction requirements
3.44.330 New installation or replacement
3.44.340 Permits
3.44.350 Work on and restoration of streets
3.44.360 Failure to comply timely
3.44.370 Completion statement
3.44.371 Responsibility
3.44.380 Facilities
3.44.386 Shoring
3.44.390 Ordinary repair
3.44.400 Breaks or leaks
3.44.410 Emergency equipment
3.44.420 Removal or abandonment of facilities
3.44.430 Failure to comply
3.44.440 Abandonment "in place" conditions
3.44.447 Operation after Franchise Expiration—Revocable License
IV. SPECIAL. PROVISIONS FOR OIL PIPELINES
3.44.450 Rights granted
3.44.460 Materials used
3.44.470 Approvals
3.44.480 Reports
3.44.490 Payments due
3.44.500 Cost of relocation
1. GENERAL PROVISIONS AND DEFINITIONS
3.44.010 Short title. This chapter shall be known and cited as "Pipeline Franchise
Ordinance." (2319-10/78)
3.44.020 General provisions. 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,
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in addition to those rules,regulations, restrictions, terms and provisions set forth in the
particular franchise agreement. (2319-10/78)
3.44.025 Franchise required when. 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)
3.44.030 Pole lines. 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)
3.44.040 Definitions. For the purpose of this chapter,the following terms, phrases, words
and their derivations shall have the meaning given herein:
(a) "Council" shall mean City Council of the Cityof Huntington Beach.
(b) "Code" shall mean the Huntington Beach Municipal Code.
(c) "Department" shall mean the Public Works Department of the City of Huntington Beach.
(d) "Director" shall mean the Public Works Director of the City of Huntington Beach.
(e) "Franchisee" or "grantee" shall mean the person to whom the franchise is granted, and
any person to whom it is lawfully assigned.
(f) "Facilities" or "appurtenances" 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.
(g) "Franchise payment period" shall mean the time period between the effective date of the
franchise agreement granting the franchise and December 31 of the same calendar year,
and each calendar year thereafter, during the life of the franchise.
(h) "Franchise report period" in all cases shall mean the time period between the effective
date of the franchise agreement granting the franchise through and including December
31 of that calendar year, and each calendar year thereafter, during the life of the
franchise.
(i) "Highway" or "street" 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.
(j) "Main" 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.
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(k) "Major street" shall mean any street or portion thereof designated as a major secondary
highway in the circulation element of the Huntington Beach General Plan.
(1) "Minor street" 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.
(m)"Person" shall mean any individual,person, firm,partnership or corporation.
(n) "Section" shall mean a section of the Huntington Beach Municipal Code, unless some
other code or statute is mentioned.
(o) "Service connection" 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. (2319-10/78)
(p) "Shall"is mandatory; "May" is permissive.
3.44.050 Term. Unless the franchise agreement granting the franchise provides otherwise,
the term of the franchise shall be fifteen (15) years. (2319-10/78)
3.44.060 Acceptance of Franchise agreement. 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 thirty (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)
3.44.070 Nonexclusive franchise. 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)
3.44.080 Maps. Within ninety(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)
3.44.100 Liability insurance. 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 five million dollars
($5,000,000).
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(c) Be noncancellable without thirty (30) days written notice thereof directed to the City of
Huntington Beach. (2319-10/78)
3.44.105 Environmental Impairment Liability Insurance. 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 insure 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 five million dollars ($5,000,000)per
occurrence.
(a) If written with an annual aggregate limit, the policy limit should be three (3)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 (2)years following termination or
cancellation of this franchise.
3.44.110 Workers' compensation insurance. 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 thirty(30) days written notice thereof directed to the City of
Huntington Beach. (2319-10/78)
3.44.120 Insurance--L'ilin . Franchisee shall file with the City Clerk prior to
commencement of any franchise operations either certified copies of said policies 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.
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(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,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)
3.44.130 Faithful performance bond. 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 slue of One Hundred Thousand Dollars ($100,000). 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 ten(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 ten(10) days after written notice to do so from the
Director. (2319-10/78)
3.44.160 Forfeiture. The franchise is granted and shall be held and enjoyed 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 thirty(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 (5) days before said
hearing. (2319-10/78)
3.44.170 Value of franchise. 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. (2319-10n8)
3.44.180 State highways. 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)
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3.44.190 Eminent domain. 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)
3.44.200 Publication costs. The grantee shall pay to the City within thirty (30)days after
receiving a statement therefore, all advertising and publishing costs, including the cost of
publishing the granting of the franchise, if necessary. (2319-10/78)
3.44.210 Assignment. 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 thirty (30) days after the effective date of such sale,transfer,
assignment or lease,then, upon the expiration of said thirty (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 fifty (50)percent 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)
3.44.220 Hold harmless. 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. (2319-1 one)
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 City shall approve selection of franchisee's counsel. City shall be reimbursed
for all costs and attorney's fees incurred by City in enforcing this obligation. This indemnity shall
apply to all claims and liability regardless of whether any insurance policies are applicable. The
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Ordinance No.3889
policy limits do not act as a limitation upon the amount of indemnification to be provided by
franchisee.
3.44.230 Standards. 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)
3.44.231 Conflicting Improvements. 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.
3.44.240 Defective facilities. 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 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 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)
3.44.250 Hazardous substances. 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)
3.44.251 Damage to Public Property Generally. 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 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 to diligently prosecute such
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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.
II. COMPENSATION
3.44.252 Public Utility Not Transmitting Oil or Products Thereof. The franchisee of any
franchise awarded to a public utility or non-public utility not transmitting oil or products thereof, as
consideration for such franchise, shall annually pay to the City in lawful money of the United
States, within thirty (30) days after the end of each calendar year and during the life of the franchise
for each and every year, including the year of granting the franchise a franchise fee negotiated as
part of the franchise agreement (unless preempted by State law), arising from the use, operation or
possession of the franchise.
3.44.253 Length. Whenever the length of any wire,pipe or conduit is a factor in calculating any
payment due under any franchise granted by the, all service connections shall be excluded in
determining such lengths.
3.44.255 Public Utility Transmitting Oil or Products Thereof. The franchisee of any franchise
awarded for a pipeline transmitting oil or products thereof which has been determined by the Public
Utilities Commission to be a public utility, as consideration for such franchise, shall, within thirty
(30) days after the end of each calendar year and during the life of the franchise for each and every
year, including the year of granting the franchise, annually pay to the City in lawful money of the
United States, a fee in the following amounts as required by State law. In the event these referenced
fees increase pursuant to State law,the fees referenced herein shall increase by the same:
Pipelines with an Internal Diameter of: Base Rate Per Lineal Foot
0-4 inches .088
6 inches .132
8 inches .176
10 inches .220
12 inches .264
14 inches .308
16 inches .352
18 inches .396
20 inches .440
22 inches .484
24 inches .528
26 inches .572
28 inches .616
30 inches .660
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For pipelines with an internal diameter not listed above, the fees shall be in the same proportion to
the fees of a twelve (12)-inch-diameter pipe as the diameter of the unlisted pipe is to twelve (12)
inches.
The amount of the fee or charge provided for in this paragraph shall be multiplied by the Consumer
Price Index, all Urban Consumers (CPI-U) for the Los Angeles-Riverside-Orange County Area for
the month of September immediately preceding the month in which payment is due and payable,
and divided by the Consumer Price Index, All Urban Consumers (CPI-U for the Los Angeles-
Riverside-Orange County Area for June 30, 1989, (1982-84=100.0)).
3.44.256 Non-Public Utility Franchises. The franchisee of any franchises awarded to other than a
public utility transmitting oil or oil products thereof, as further consideration for such franchise
including the extension, renewal, or continuation of a previously granted franchise, shall pay to the
City in lawful money of the United States the following fees:
3.44.260 Basic granting fee. In the event of an initial grant of franchise or franchises
which extend, renew, or continue previously granted franchises, a base granting fee shall be
required as established, and amended from time to time, by resolution of the City Council.
(2319-10/78,2676-2184)
3.44.270 Base annual fee. A base annual fee shall be paid by franchisee within thirty (30)
days after the end of each calendar year including the year of granting the franchises,
according to the franchise payment period as defined in this chapter, in the following
amounts:
Pipelines with an Internal Diameter of: Amount Per Lineal Foot
0-4 inches .590
6 inches .895
flinches 1.197
10 inches 1.485
12 inches 1.787
14 inches 2.092
16 inches 2.377
18 inches 2.682
20 inches 2.984
22 inches 3.272
24 inches 3.574
26 inches 3.879
28 inches 4.164
30 inches 4.469
The base annual rate applicable to pipelines with an internal diameter falling between incremental
size categories shall pay a rate determined by adding the price corresponding to the lower size to a
figure computed by multiplying the difference between the higher and lower price times the
multiplier. The multiplier will be determined by dividing the difference between the size of the pipe
and the lower size category by the difference between the two size categories. In determining the
number of feet of pipeline upon which the annual fee will be computed, the greatest number of feet
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Ordinance No. 3889
of pipeline covered by the franchise during the calendar year for which payment is due will be
utilized. The base annual fee shall be paid no later than 30 days and a penalty at the rate of ten (10)
percent per month or fraction thereof beyond the payment date shall be charged, but in no event
shall said penalty exceed fifty (50)percent.
The City reserves the right to adjust the base fees established hereunder at any time after the
effective date of the ordinance.
3.44.271 Payments to City. Payment is due 30 days after the City's invoice date and a
10%per month late penalty and 18% annual interest cost will be charged for any delinquent
payment. The City will also withhold any permits/not renew licenses if any payment is
delinquent. Payments should be mailed to the City Treasurer, City of Huntington Beach,
P.O. Box 711, Huntington Beach, CA 92648-0711.
3.44.280 Base construction charges. The holder of the franchise shall pay at the time of
installation, relocation or replacement of any segment of pipe or pipeline, or any other
facility covered by the franchise agreement, a base construction charge established, and
amended from time to time, by resolution of the City Council. (2319-10/78,2676-2/84)
3.44.290 Adiustments--Base annual fee.
The amount of each base annual fee as specified in the above section shall be revised every year, in
accordance with the following formula:
(a) The Consumer Price Index, All Urban Consumers (CPI-U) for the Los Angeles-
Riverside-Orange County area (1982-84=100) as published by the United States Bureau
of Labor Statistics ("Bureau"), shall be defined as the "index," and such index as it
stands on August 1, 2010 shall be defined as the "base index" and the index for the
month of September immediately preceding the fee payment date shall be defined as the
"current index;"
(b) If the current index differs from the base index,then the base annual fee shall increase or
decrease by the percentage increase or decrease between the current index and the base
index,provided that, if the current index drops below the base index, no adjustment shall
be made. The base annual fee shall be multiplied by an adjustment factor determined by
dividing the current index by the base index.
For example, if the base index is 185.0 and the current index is 190.5, the annual franchise fee shall
be (i.e. 190.5/185.0= 1.0297),times the base annual fee, provided however, under no circumstances
shall the multiplying factor be less than one, nor shall the annual franchise fee calculated using said
factor,be less than the base annual fee. If the Bureau shall revise the index, the parties hereto shall
accept the method of revision for conversion recommended by the Bureau; and
(c) If the Bureau discontinues the preparation or publication of the CPI-U, All Urban
Consumers for the Los Angeles-Riverside-Orange County area(1982-84=100), and if no
transposition table prepared by the Bureau is available,then the amount of each annual
franchise fee shall be computed by reference to such other price index as may be chosen
by the City, and the City shall be the sole judge of comparability of successive indices
and its determination on this point shall be final and conclusive. In no event shall the
annual franchise fee adjustment by reference to such other price index be less than the
base annual fee as set forth herein.
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Ordinance No.3889
(d) Publication and Administrative Issuance Costs. The franchisee shall pay to the City
within thirty(30) days after receiving a statement therefore, all administrative and other
costs incurred by the City 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 (Public resources Code Section 21000, et seq.) and any
similar federal statute, or any successor statute, and for any and all advertising and
publishing costs, including the cost of publishing the ordinance, if necessary, incurred in
connection with the granting of the franchise.
(e) The base annual fee may also be amended from time to time by resolution of the City
Council.
3.44.300 Proration of payments. In the event of abandonment of facilities with the
approval of the City as elsewhere in this chapter provided, or in the event of removal of such
facilities by the franchisee, or in the event of the grant of a franchise with an initial franchise
payment period of less than one year, the annual franchise fee required under the
aforementioned sections shall be prorated for the calendar year in which such removal or
abandonment or grant occurs as of the end of the calendar month in which removed,
abandoned or granted. (2319-10/78)
3.44.310 Records. 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.
At all reasonable times,the franchisee shall permit the City or its duly authorized
representative to examine all property of the franchisee erected, constructed, laid, operated
or maintained pursuant to the franchise,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, property or financial condition of the franchisee with
respect thereto. Said records shall be made available to the City at a location in the County
of Orange. (2319-10/78)
III. CONSTRUCTION
3.44.320 Construction requirements. Pipelines and appurtenances shall be constructed
and maintained in a good workmanlike manner in conformity with applicable law and the
terms and conditions of any City ordinance, rule or regulation now, or as hereafter amended,
adopted or prescribed by the City. All pipelines and appurtenances will be installed in
accordance with the latest revision of the "American Standard Code of Pressure Piping ASA
1331 A." (2319-10/78)
3.44.330 New installation or replacement. New installations or replacements of pipelines
and appurtenances and all other facilities necessary for the installation, operation,
maintenance, and safety of pipelines and conduits shall be laid and maintained only pursuant
to applicable law and permit issued by the Department. 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 decision shall be final and binding on the franchisee. (2319-10/78)
3.44.340 Permits. Where the provisions of any City ordinance, resolution or regulation,
which shall be in force at that 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 permit from the Department
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Ordinance No.3889
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 permit not later than the
next business day.
The application of the franchisee for such permit shall show the following facts: the length
and proposed location of the pipeline and/or appurtenance intended to be installed, and such
other facts as the Department may require. The franchisee shall pay any and all permit
inspection fees required by the Department. (2319-10/78)
3.44.350 Work on and restoration of streets. The work of constructing, laying, replacing,
maintaining, repairing or removing all pipelines and appurtenances authorized under the
provisions of this chapter in, over, under, along or across any street shall be conducted with
the least possible hindrance to the use of the street for purposes of travel. 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 workmanlike manner be repaired, replaced or
restored and placed in as good condition as before the commencement of such work and
shall be done to the satisfaction of the Director at the expense of the franchisee, and in
accordance with the terms and conditions of any City ordinance, resolution or regulation.
For streets that have been rehabilitated within three(3) years prior to the proposed work, the
City shall require the resurfacing, or other treatment, of the entire lane widths of the street as
directed by the Director. For those streets that have not been rehabilitated by the City within
three years prior to the proposed work, the restoration shall be in full compliance with City
requirements. All restoration, repair or replacement work shall be done to the satisfaction of
the Director at the expense of the franchisee in accordance with all applicable law.In the
event that the franchisee shall fail or neglect to make such highway repair, replacement or
restoration work, ten (10) days after notice therefore has been given franchisee by the
Director,the City may repair, replace or restore said highway at the expense of franchisee.
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. (2319-10/78)
3.44.360 Failure to comply timely. In the event that the franchisee fails to complete the
work within the time specified in the permit, the City may require the franchisee to pay to
the City not more than five hundred dollars ($500)per day as liquidated damages for each
day construction extends beyond the time specified in the permit.
Whenever the franchisee fails to complete any work required by the terms and provisions of
the franchise, and the permits issued thereunder, within the time limits required thereby,the
City may complete or cause to be completed any and all such work 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 direct cost of such work plus the current rate
of overhead being charged by the City for reimbursable work. (2319-10/78)
3.44.370 Completion statement. Upon the completion of the construction of any pipelines
or other facilities constructed pursuant to said 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, and the total length of pipeline or facilities
actually laid and as-built drawings. (2319-10/78)
3.44.371 Responsibility. In addition to any indemnification set forth herein, franchisee shall
be specifically responsible to the City and shall save the City, its officers, agents, and
employees, free and harmless from all damages or liability arising from any damage or
injury suffered by any person by reason of any excavation or obstruction being improperly
07-1267.005/50099 13
Ordinance No.3889
guarded during any work authorized pursuant to the franchise or the failure to neglect of the
franchisee to properly perform, maintain, or protect any phase of such work.
3.44.380 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 franchise, and said facilities shall be kept flush with the surface of the street and so
located as to conform to applicable law including any ordinance, resolution 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
ordinances, resolutions and regulations as are now or may hereafter be in force,to make all
necessary excavations in said street 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. (2319-10/78)
3.44.386 Shorini4. The franchisee shall provide at its sole cost such shoring or other support
as shall be reasonably required to support, maintain, and protect franchisee's facilities in
connection with any storm drain or sewer construction by the City or in connection with any
facility constructed by City, or by any successor agency.
3.44.390 Ordinary repair. The franchisee shall be privileged to excavate in the road or
street for line repair for the number of days agreed upon by the franchisee and the
Departmentprovided, however,that the franchisee shall first obtain an excavation permit
from the Department for the doing of any such work. (2319-10/78)
3.44.391 Relocation of Pipelines and Facilities The City reserves the right to change the
grade, to change the width or to alter or change the location of any street over which the
franchise is granted. If any of the pipelines, facilities or appurtenances heretofore or
hereafter constructed, installed or maintained by the franchisee pursuant to the franchise on,
along, under, over, in, upon or across any street are located in a manner which conflict in
any way with the change of grade, traffic needs, operation, maintenance, improvements,
repair, construction, reconstruction, widening, alteration or relocation of the street,the
franchisee shall relocate permanently or temporarily any such facility at no expense to the
City upon receipt of a written request from the Director to do so, and shall commence such
work on or before the day specified in such written request which date shall be not less than
thirty (30) days from receipt of such written request. Franchisee shall thereafter diligently
prosecute such work to completion.
The City reserves the right for itself, and all other public entities which are now or may later
be established,to lay, construct, repair, alter, relocated and maintain subsurface or other
facilities or improvements of any type or description in a governmental but not proprietary
capacity within the streets over which the franchise is granted. If the City or any other
public entity finds that the location or relocation of such facilities or improvements conflicts
with the facilities laid, constructed or maintained under the franchise, whether such facilities
were laid before or after the facilities of the City or such other public entity were laid,the
franchisee of such franchise shall at no expense to the City or public entity, on or before the
date specified in a written request from the Director,which date shall be not less than thirty
(30)days after the receipt of such notice and request to do so, commence work to change the
location either permanently or temporarily of all facilities so conflicting with such
07-1267.005/50099 14
Ordinance No. 3889
improvements to a permanent or temporary location in said streets to be approved by the
Director and thereafter diligently prosecute such work to completion.
3.44.400 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 thereof 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 Department.
The franchisee shall obtain an excavation permit from the Department for the doing of any
such work. (2319-10/78)
3.44.410 Emerl4ency equipment. At all times during the term of this franchise, the
franchisee shall maintain or arrange for, on a twenty-four(24) hour a day basis adequate
emergency equipment and a properly trained emergency crew within a radius of twenty-five
(25)miles from any facilities installed or maintained pursuant hereto for the purpose of
shutting off the pressure and the flow of contents of such facilities in the event of an
emergency resulting from an earthquake, act of war, civil disturbance, fire, flood, or any
other cause or nature whatsoever. 2319-10/78)
3.44.420 Removal or abandonment of facilities.
(a) At the expiration, revocation or termination of this franchise or the permanent
discontinuance of the use of all or a portion of its facilities,the franchisee shall,within
thirty (30) days thereafter make written application to the Director for authority either:
(1)to abandon all or a portion of such facilities in place; or(2) to remove all or a
portion of such facilities. Such application shall describe the facilities desired to be
abandoned or removed by reference to the map or maps required by Section 3.44.080
and shall also describe with reasonable accuracy the physical condition of such facilities.
The Director shall determine whether any abandonment or removal which is thereby
proposed may be effected without detriment to the public interest and under what
conditions such proposed abandomnent or removal may be safely effected and shall then
notify the franchisee of his determination. The franchisee shall pay to the City the cost
of all tests required to determine the disposition of the application for abandonment
removal.
(b) Within thirty (30) days after receipt of such notice, the franchisee shall apply for a
permit from the Department to abandon or remove the facility and shall pay all fees and
costs related thereto. Such permit is to contain the conditions of abandonment or
removal as may be prescribed by the Director. Any abandonment shall be conditioned,
in part, upon the franchisee's compliance with the provisions set forth in this Chapter.
The franchisee shall, within ninety (90) days after obtaining such permit commence and
diligently prosecute to completion,the work authorized by the permit. If the franchisee
applies for authority to abandon all or a portion of its facilities in place, and the Director
determines that abandonment in place of all or part of the facilities may be affected without
detriment to the public interest,the franchisee shall pay to the City a fee which shall be
computed as follows:
Pipelines with an Internal Diameter of Amount per Lineal Foot
0-12 inches $15.00
14-18-inches $22.00
20-30 inches $28.00
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Ordinance No.3889
(2319-10/78)
3.44.430 Failure to comply.
(a) If any facilities to be abandoned "in place" subject to prescribed conditions shall not be
abandoned in accordance with all such conditions the Director may make additional
appropriate orders, including an order that the franchisee shall remove any or all such
facilities. The franchisee shall comply with such additional orders.
(b) In the event that the franchisee shall fail to comply with the terms and conditions of
abandonment or removal as may be required by this chapter and within such time as may
be prescribed by the Director, the City may remove or cause to be removed such
facilities at the franchisee's expense. The franchisee shall pay to the City the cost of
such work plus the current rate of overhead being charged by the City for reimbursable
work.
(c) If, at the expiration,revocation or termination of this franchise, or of the permanent
discontinuance of the use of all or a portion of its facilities,the franchisee shall, within
thirty (30) days thereafter, fail or refuse to make written application for the
abovementioned authority, the Director shall make the determination as to whether the
facilities shall be abandoned in place or removed. The Director shall then notify the
franchisee of his determination. The franchisee shall thereafter comply with the
provisions of subsection(b) of section 3.44.420. (2319-10/78)
3.44.440 Abandonment "in place" conditions. Facilities abandoned "in place" shall be
subject to the condition that if, at any time after the effective date of the abandonment,the
Director determines that the facility may interfere with any public project, franchisee or its
successor in interest must remove the facility at its expense when requested to do so by the
City or to pay City for the cost of such removal. (2319-10/78)
3.44.447 Operation after Franchise Expiration—Revocable License. If a franchise is
to expire within sixty days according to the franchise terms, and a new franchise has been
requested, but has not yet been granted,the franchisee may request the Mayor and City
Council to issue the franchisee a written revocable license, for a renewable term not to
exceed one hundred twenty(120) days from the expiration of the franchise, permitting the
franchisee to continue to locate its existing facilities in or upon public property in the City
during the term of the license. The Mayor and City Council may issue such a revocable
license, subject to any restrictions,terms, and conditions (including compensation), without
limitation,that they deem to be in the best interests of the City. Nothing herein requires the
Mayor and City Council to grant such a revocable license, nor does the issuance of such a
revocable license require that the Mayor and City Council grant the franchisee a new
franchise. Upon request of the franchisee,the City Clerk shall provide a revocable license
application form. (3850-1/10)
IV. SPECIAL PROVISIONS FOR PETROLEUM PIPELINES
3.44.450 Rights granted. The franchisee granted a petroleum pipeline franchise shall have
the right during the life thereof to transport oil, gas, gasoline,petroleum, wet gas and other
hydrocarbon substances through the pipelines maintained under the franchise. If the
franchisee or assignee later qualifies before the Public Utilities Commission of the State of
California as a common carrier,the franchisee or assignee shall then have no right to
continue to operate hereunder after the date of such qualification except with the consent of
the Council, granted upon such additional terms and conditions as the Council may deem
07-1267.005/50099 16
Ordinance No.3889
proper or as superseded by statute. Such additional terms and conditions shall be expressed
by resolution. (2319-10/78)
3.44.460 Materials used. All pipelines used or to be used for the transportation of oil, gas,
gasoline, petroleum, wet gas and other hydrocarbon substances shall be first class and
standard material as set forth by current American Petroleum Institute pipeline
specifications, (2319-10/78)
3.44.470 Approvals. On all pipelines laid pursuant to the franchise, the Director shall
approve where flush-valve connections shall be placed in the line. The availability of
adequate water supplies,the hydrocarbons transmitted in the line, and the location of control
valves shall be considered when making such determination. Such flush-valve connections
shall be installed in the manner prescribed by the Director. (2319-10/78)
3.44.480 Reports. The franchisee during the life of the franchise, within sixty(60)days
after the expiration of each franchise payment period, shall:
(a) File with the Director two copies of a verified report of the franchisee showing for the
immediately preceding franchise period, the length of lines in streets,the internal
diameter of such lines,the rate per foot per year and the total amount due the City.
(b) File with the Director a report in triplicate, showing the permit number of each permit
obtained for the installation of new mains during the immediately preceding franchise
payment period, together with the length and size of said mains. On this report the
franchisee shall show any change in franchise footage since the last franchise payment
period segregating such footage as to new mains laid, old mains removed, old mains
abandoned in place, and the footage of mains in territory annexed or incorporated since
the last franchise payment period. (2319-10/78)
(c) All payments should be mailed to the City Treasurer, City of Huntington Beach, P. O.
Box 711, Huntington Beach, CA 92648-0711.
3.44.490 Payments due. Except for pipelines lawfully maintained other than by the
authority granted by the franchise, the semi-annual payments shall accrue from the
respective dates of installation, whether before or after the effective date of the franchise
agreement, and such payments, together with the initial construction charges, if any, shall be
due and payable semi-annually. (2319-10/78)
3.44.500 Cost of relocation. Franchisee shall bear the costs of removing and relocating its
facilities used and maintained under this franchise if made necessary by any lawful change
of grade, alignment or width of any public street, way, alley or place, or for any public
project, even if franchisee's facilities are located on a private easement. If the grantee after
reasonable notice, fails or refuses to relocate permanently or temporarily its facilities located
in, on, upon, along, under, over, across or above any highway or to pave, surface, grade,
repave, resurface or regrade as required, pursuant to any provision of the franchise,the City
or other public entity may cause the work to be done and shall keep an itemized account of
the entire cost thereof, and the grant shall hold harmless the City, its officers and employees
from any liability which may arise or be claimed to arise from the moving, cutting, or
alteration of any of the grantee's facilities, or the turning on or off of water, oil, or other
liquid, gas, or electricity.
07-1267.005/50099 17
Ordinance No. 3889
SECTION 2. This ordinance shall become effective 30 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 16 t h day of August , 2010.
AA
a r
ATTEST: INITIATED AND APP OV
_QM4J
City Clerk Director of Ec no Development
REVIE ND APPROVED:
APPROVED AS TO FORM:
�t;-Ahmimstrator Ian
City� Y Y 1
ttomey
07-1267.005/50099 18
Ord. No. 3889
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, JOAN L. FLYNN, the duly elected, 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 August 2,2010,and was again read to said City Council at a
regular meeting thereof held on August 16,2010, and was passed and adopted by the
affirmative vote of at least a majority of all the members of said City Council.
AYES: Carchio, Coerper, Hardy, Green, Bohr, Hansen
NOES: None
ABSENT: Dwyer
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 August 26,2010.
In accordance with the City Charter of said City Qftci
Joan L. Flynn,Ci1y Clerk ty Clerk and ex-offici Clerk
Senior Deputy City Clerk of the City Council of the City
of Huntington Beach, California