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HomeMy WebLinkAboutFranchise Agreement Violations - Ordinance 3850 Amends Chapt Huntington Beach Independent has been adjudged a newspaper of general circulation in Huntington Beach and Orange County by Decree of the Superior Court of Orange County,State of California,under date of Aug. 24, 1994,case A50479. PROOF OF PUBLICATION STATE OF CALIFORNIA ) SS. -- ^(ITYOf -- COUNTY OF ORANGE ) HUNTINGTONBEACH LEGAL NOTICE ORDINANCE NO.3850 Adoyypted by the I am the Citizen of the United States and a DECtM aun i,an 2009 resident of the County aforesaid; I am over "AN ORDINANCE OF THE: CITY OF HUNTINGTON' the age of eighteen years, and not a party BEACH AMENDING, CHAPTER 3.44 OF•THE to or interested in the below entitled matter. HUNTINGTON BEACH MUNICIPAL CODE .RE_, I am a principal clerk of the HUNTINGTON EATING TO FRANCHISE; AGREEMENTS BEACH INDEPENDENT, a newspaper of SYNOPSIS: :THE 1991 SETTLEMENT general circulation, printed and published in FRANCHISE WITH SOCAL; GAS IS SET TO EXPIRE'' the City of Huntington Beach, County of ON DECEMBER 31.,2009. .DESPITE'ONGOING NE Orange, State of California, and the GOTIATIONS BETWEEN THE CITY AND SOCAL attached Notice is a true and complete co GAS, NEW' FRANCHISE p copy TERMS HAVE NOT BEEN as was printed and published on the AGREED TO. THE ADDI- TION OF THIS MUNICI-. following date(s): PAL CODE CHAPTER ADDS A VIOLATION PEN- ALTY REQUIRING THREE TIMES THE COMPENSA- TION REQUIRED UNDER .THE EXPIRED FRAN- CHISE, CREATES A CRIMINAL VIOLATION FOR OPERATING- WITH- OUT A FRANCHISE, AND December 17, 2009 CREATES THE OPPORTU- NITY TO ENTER INTO,A LICENSE AGREEMENT. PASSED AND ADOPTED by the City Council of. the City of Huntington Beach at .a regular meeting held December - 7, 2009 by the following roll call vote: AYES: Carchio, Coerper, 'Hardy, Green,, Bohr, declare, under penalty of perjury, that the NOES:.No�eQO foregoing is true and correct. .AB ABSTAIN: ee SENT:Nonone THE FULL TEXT OF THE ORDINANCE IS AVAIL.: ABLE ' IN THE CITY CLERK't OFFICE. Executed on December 21 2009 This ordinance is effe� tive 30 days after at Costa sa, California :adoption. CITY HUNTINGTON BEACH 2000 MAIN STREET HUNTINGTON BEACH, 1 CA 92648 714-536-5227 JOAN L.FLYNN, CITY CLERK Sig a Published Huntington 'Beach Independent De- cember 17, 2009 123- ` j ,187 k'D _ _ CAI d dcy AS /9�yJ E -?�L-� Fly/.0 Tnd !��d•J Council/Agency Meeting nn ^Held: //-/6 dD4 c Deferred/Continued to:tZd, � *p ve ❑ Conditionally Approved ❑ Denied Ci Cler ' Signatu Council Meeting Date: 11/16/09 Department ID Number: 09-25 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUN SUBMITTED BY: FRED A. WILSON, CITY ADMINISTRA PREPARED BY: PAUL EMERY, DEPUTY CITY ADMI ATOR sr JENNIFER McGRATH, CITY ATTORNE SUBJECT: ADOPT AN ORDINANCE AMENDING CHAPTER 3.44 OF THE HUNTINGTON BEACH MUNICIPAL CODE RELATING TO FRANCHISE AGREEMENT VIOLATIONS Statement of Issue, Funding Source, Recommended Action,Alternative Action(s),Analysis, Environmental Status,Attachment(s) Statement of Issue: The 1991 Settlement Franchise with SoCalGas is set to expire on December 31, 2009. Despite ongoing negotiations between the City and SoCalGas new franchise terms have not been agreed to. The addition of this Municipal Code Chapter Section will add a violation penalty requiring three times the compensation required under the expired franchise, creates a criminal violation for operating without a franchise and creates the opportunity to enter into a license agreement. Funding Source: There is no funding required by this action. Recommended Action: Motion to: Adopt Ordinance No. 3850 adding Sections 3.44.025, 3.44.445 and 3.44.447 to Chapter 3.44 of the Huntington Beach Municipal Code. Alternative Action(s): Do not adopt the Ordinance adding Sections 3.44.025, 3,44.445 and 3.44.447 to Chapter 3.44 of the Huntington Beach Municipal Code. REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 11/16/09 DEPARTMENT ID NUMBER: 09-25 Analysis: The City of Huntington Beach and the Southern California Gas Company ("SoCalGas") entered into a franchise agreement in 1991 as a part of a settlement and release agreement between the parties. The settlement agreement resolved pending litigation between the parties relative to contended payments under previous franchise agreements. The settlement agreement term is set to expire on December 31, 2009. In early 2009 the parties entered into discussions in an effort to develop a new Franchise Agreement. To date, the parties have been unable to come to terms relative to franchise payments to the City. SoCalGas will not agree to any month-to-month or other extension of the Settlement Franchise. SoCalGas contends that without a new agreement all terms will revert to conditions set forth in the California Public Utilities Code and payment terms as calculated in the Municipal Lands Use Surcharge. Reverting to the conditions set forth in the CPUC will result in a significant reduction of revenues. The City of Huntington Beach, as a California Charter City, has the ability to adopt an ordinance that precludes the reverting of the expired agreements to terms and conditions as set forth in the California Public Utilities Code. The adoption of the ordinance amending the Municipal Code provides that after a franchise or license has expired it shall be subject to a civil penalty of three (3) times the compensation required under the expired franchise or license prorated on a per day basis, creates a criminal violation for operating without a franchise, and creates the opportunity to enter into a license agreement. Strategic Plan Goal: Maintain Our Financial Reserves Environmental Status: N/A Attachment(s): Pa(ge NumberNo,. Description 1. Ordinance No. 3850 An Ordinance of the City of Huntington Beach Amending Chapter 3.44 of the Huntington Beach Municipal Code Relating Franchise Agreements Violations 2. Legislative Draft -2- 11/12/2009 4:41 PM ATTACHMENT # 1 ORDINANCE NO. 38�� AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTER 3.44 OF THE HUNTINGTON BEACH MUNICIPAL CODE RELATING TO FRANCHISE AGREEMENTS 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 by adding Section 3.44.025, said section to read as follows: 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. SECTION 2. Chapter 3.44 of the Huntington Beach Municipal Code is hereby amended by adding Section 3.44.447, said section to read as follows: 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. SECTION 3. All other sections of Chapter 3.44 not modified herein remain unchanged. 40940 1 Ordinance No. 3850 SECTION 4. 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 7 th day of December , 200 9 . M or ATTEST: INITI ED AND�APPROVED: City, uterK Dire for of Public Works REVIE D APPROVED: APPROVED AS TO FORM: Cio Afninistrator City Attorney 40940 2 Ord. No. 3850 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 November 16,2009 and was again read to said City Council at a regular meeting thereof held on December 7,2009, 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, Dwyer, Hansen 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 December 17,2009 In accordance with the City Charter of said City Joan L. Flynn,City Clerk C' Clerk and ex-officio erk Senior Deputy City Clerk of the City Council of the City of Huntington Beach, California ATTACHMENT #2 KEY INSERTIONS: Double underline DELETIONS Sari �e ORDINANCE NO. 3850 LEGISLATIVE DRAFT ADDING SECTIONS 3.44.025 and 3.44.447 Chapter 3.44 PIPELINE FRANCHISES 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 anV 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 pose 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. 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 vet 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 compensationl. 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 09-2322/40941 RCA ROUTING HEET INITIATING DEPARTMENT: Administration SUBJECT: Franchise Ordinance COUNCIL MEETING DATE: November 16, 2009 RCA ATTACHMENTS: STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Not Applicable ❑ Resolution (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable ❑ Tract Map, Location Map and/or other Exhibits Attached ❑ Not Applicable ❑ Contract/Agreement (w/exhibits if applicable) Attached ❑ (Signed in full by the City Attorney) Not Applicable ❑ Subleases, Third Party Agreements, etc. Attached ❑ (Approved as to form by City Attorney) Not Applicable ❑ Certificates of Insurance (Approved by the City Attorney) Attached ❑ Not Applicable ❑ Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑ Not Applicable ❑ Bonds (If applicable) Attached ❑ Not Applicable ❑ Staff Report (If applicable) Attached ❑ Not Applicable ❑ Commission, Board or Committee Report (If applicable) Attached ❑ Not Applicable ❑ Findings/Conditions for Approval and/or Denial Attached ❑ Not Applicable ❑ EXPLANATION I I. - IATTACHMENTS. ......... REVIEWED RETURNED FORWARDED Administrative Staff ( ) ( ) Deputy City Administrator (Initial) ( ) ( ) City Administrator (Initial) ( ) ( ) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: RCA Author: Emery 6 ORDINANCE NO. 3850 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTER 3.44 OF THE HUNTINGTON BEACH MUNICIPAL z CODE RELATING TO FRANCHISE AGREEMENT VIOLATIONS The City Council of the City of Huntington Beach does hereby rdain as follows: SECTION 1. Chapter 3.44 of the Huntington Beach Municipal Code is hereby amended by adding Section 3.44.025, said section to read as follows: 3.44.025 Franchise required when. It is unlawful fo 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, `titer, heat, steam, or other substance or to exercise any franchise or privilege for the erection o maintenance, in or upon any public street or alley in the City, of any telephone,telegraph, el 76ic 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 ddso 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/ SECTION 2. Chapter 3.44 of the Huntington Beach Municipal Code is hereby amended by adding Section 3.44.445, said section to read as follows: 3.44.445 Violation-Penalty. Any4erson, firm or corporation exercising or attempting to exercise any franchise for any of the purposes mentioned in this Chapter, or laying or maintaining any pipes or condu in or upon any street in the City, for the transmission of gas, water, heat, steam or other substance, or erecting any telephone, telegraph or electric light or power poles, wires, or system/within the City in violation of any provision of this Chapter is guilty of an INFRACTION/which upon conviction thereof is punishable in accordance with provisions of this Code. In/addition, any person, firm or corporation exercising or attempting to exercise any franchise foi/any of such purposes after a franchise or license (issued pursuant to this Chapter) has expired shall be subject to a civil penalty of three (3) times the compensation required under the expired franchise or license prorated on a "per day" basis. Such civil penalty shall be in addition to/any other terms and conditions set out in the franchise or license, and shall not, in any way, limit or otherwise restrict any other legal or equitable remedy available to the city. S E CTi6----/-' --Chapter-- -- ,-3— —4411-o-f-t-h-e-H-u-n-t-i Huntington -e--a Beach-1 M---u--n-i-cl-i-p-- 1 a--C-o-d—e-i-s-hereby--amended by adding Section 3.44.447, said section to read as follows: 3.44.447 Zration 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 40940 1 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 thabthe 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. SECTION 4. All other sections of Chapter 3.44 not modified herein remain unchanged. SECTION 5. This ordinance shall become effective 30 days after itadoption. 0 PASSED AND ADOPTED by the City Council of the City of tington Beach at a regular meeting thereof held on the day of ,✓ , 200 �1Vlayor ATTEST: INITIAT `D AND APPROVED: City Clerk Director of P blic Works REVIE D APPROVED: PPROVED AS TO FORM: CTLY Milinistrator City Attorney U 1(. t.O tY IJ ` \-. 40940 2 KEY INSERTIONS: Double underline DELETIONS ORDINANCE No. 3850 4 LEGISLATIVE DRAFT ADDING SECTIONS 3.44.025, 3.44.445 and"S.4,4.447 j� j, yj Chapter 3.44 PIPELINE FRANCHISES 3.44.025 Franchise required when. It is unlawful for any person, firm o/corDoraltion to exercise anyprivilege or franchise to lay or maintain an s in or under an y pipes or condui;( -----y public street, or alley in the CiM 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 CAL of any telephone, telegraph,/ele tric light or powe poles, wires, or system, or for the erection of any pole or wire for the purpose of tran5Wjjfi" electrical energy or current, without first having procured a fran't'hise to do so unless such person, firm or corporation is entitled to do so by direct and unlimited authorityof the Constitution of the state or the Constitution of the laws of the I.Knited States. 3.44.445 Violation-Penalty. Any person, firm or corp ration exercising or attempting to exercise any franchise for any of the purposes mentioned in this Chapter, or laying or maintaining any pipes or conduits in or upon any street in the City, for the transmission of gas, water, heat, steam or other substance, or ereofing any telephone, telegraph or electric light or power poles, wires, orsystem, within thLICity in violation of any provision of this Chapter is guilty of I an INFRACTION whicl( upon conviction thereof is punishablein accordance with provisions of this Code. fn addition, any person, firm or corporation exercising or attempting to exercise any fraikhise for any of such purposes after a franchise or license (issued pursuant to this-Chapter has expired shall be subject to a civil penalty of three (3)times the compensation required/under the expired franchise or license prorated on a "per day" basis. Such civil penalty shall be in addition to any other terms and conditions set out in the franchise or license, and shrill not, in any way, limit or otherwise restrict any other legal or equitable remedy available tJ the City. 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)focate 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 lestrictions, 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 09-2322/40941