Brea Municipal Code Art. I General Provisions and Definitions

Every franchise hereafter granted by the city to lay or construct from time to time, and to 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, water, waste water, mud, steam, and other liquid and gaseous substances which are not more hazardous than the aforementioned substances, together with all manholes, valves, appurtenances and service connections necessary or convenient for the operation of such 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 Brea, except as otherwise provided in the ordinance granting the franchise, shall be granted upon and be subject to the rules, regulations, restrictions and terms and conditions of this chapter, in addition to those rules, regulations, restrictions, terms and conditions set forth in the ordinance granting the franchise.

(Ord. 1152, 5-17-2011)

This chapter shall apply to all pipelines as defined in Cal. Gov’t Code § 51010.5(a) and including those pipelines excluded from the definition under Cal. Gov’t Code § 51010.5(a)(1), (3), and (6). This chapter shall not authorize the granting of a franchise for the transportation of a hazardous liquid substance in a gaseous state, or the use of an existing pipeline for the transmission of such a substance, unless the ordinance granting the franchise authorizes transportation of such substances.

(Ord. 1152, 5-17-2011)

Nothing in this chapter shall be construed to permit the franchisee to construct new poles or other facilities above ground.

(Ord. 1152, 5-17-2011)

For the purpose of this chapter, 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.

"Applicable law."

All present and future federal, state, municipal, or local laws, rules, regulations, ordinances, 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 the franchisee’s facilities or activities.

"City clerk."

The City Clerk of the City of Brea.

"City engineer."

The City Engineer of the City of Brea.

"City property."

The property or facilities owned by the City of Brea or property owned by any of the city’s affiliated agencies including but not limited to the Brea Redevelopment Agency.

"Claims."

All claims, losses, liabilities, causes of action, demands, damages, suits, judgments, debts, costs, contribution or indemnity, expenses (including but not limited to attorneys’ 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 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 proceedings by any governmental agency, whether or not any such claim is ultimately defeated.

"Code."

The Municipal Code of the City of Brea.

"Confidential information."

Business plans, investments, trade secrets, personnel data and assessments of the franchisee’s competitive position and other records and information not reasonably needed by city to apply or enforce this chapter. "Confidential information" does not include orders, reports, or any other documents concerning any facility that reflect, describe or relate to:

Any governmental enforcement activity;

Any violation of any local, state or federal environmental or safety related law or regulation; or

Any environmental condition or release.

"Contaminant."

Any material, substance or constituent originating from a 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.

"Council."

City Council of the City of Brea.

"Day."

Calendar day unless otherwise provided.

"Department."

Public Works Department of the City of Brea.

"Environmental condition."

The presence or evidence of the likely presence of any contaminant originating from a franchisee’s facility(ies) or from franchisee’s activities, or a release, in surface water, ground water, drinking water supply, soil, land surface, subsurface strata or the air.

"Facility or facilities."

All property owned or used by the franchisee in connection with the franchise, including, but not limited to, pipelines, pump stations, and service connections with the franchisee’s facilities, whether installed by the franchisee as named and originally granted under this franchise or its predecessors and 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.

"Franchise payment period."

The time period between the effective date of the ordinance and December 31 of the same year, and each calendar year thereafter, during the life of the franchise.

"Franchisee."

The person to whom the franchise is granted, and any person to whom it is lawfully assigned.

"Major street."

Any street or portion thereof designated as a major ‘secondary highway’ in the Circulation Element of the Brea General Plan.

"Minor street."

Any street or portion thereof other than one designated as a ‘secondary highway’ in the Circulation Element of the Brea General Plan.

"Ordinance."

An ordinance granting a franchise to a franchisee unless some other ordinance is mentioned.

"Person."

Any individual, person, firm, partnership or corporation.

"Release."

Any ‘release’ (as that term is defined in Section 101(22) of CERCLA [42 U.S.C. Section 9601(22)]), or ‘disposal’ (as that term is defined in Section 1004(3) of RCRA [42 U.S.C. Section 6903(3)]), 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.

"Remedial work."

All ‘remedial action,’ as that term is defined in Section 101(24) of CERCLA [42 U.S.C. Section 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 Section 101(23), 101(24) and 101(25) of CERCLA [42 U.S.C. Section 9601], a release of a contaminant or environmental condition.

"Remediation costs."

All costs and expenses, including the city’s current rate of overhead, incurred by the city in performing and monitoring any remedial work.

"Shall"

is mandatory, "May" is permissive.

"Street."

Any street, road, highway, alley, lane or court or other public easement, which now exists or may hereafter exist in the City of Brea and in which the city has the authority to grant a franchise.

(Ord. 1152, 5-17-2011)

Unless the ordinance provides otherwise, the term of each franchise shall be ten (10) years.

(Ord. 1152, 5-17-2011)

The franchisee shall, within thirty (30) days after the passage of the ordinance, file with the City Clerk of the City of Brea a written acceptance of the terms and conditions of such ordinance. The franchise shall be null and void if the written acceptance is not filed within the prescribed time.

(Ord. 1152, 5-17-2011)

The granting of a franchise shall not prevent the city from granting any identical or similar franchise to any person other than the franchisee.

(Ord. 1152, 5-17-2011)

If, after granting the franchise to other than a public utility, the franchisee 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 qualification, 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.

(Ord. 1152, 5-17-2011)

The franchise is granted and shall be held and enjoyed upon each and every condition contained in this chapter 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 all applicable law, shall constitute grounds for the suspension or forfeiture of the franchise. The Council, prior to any suspension or forfeiture of the franchise, shall give to the franchisee not less than thirty (30) days’ notice in writing of any default thereunder. If the franchisee 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 franchisee shall have the right to appear and be heard, and thereupon the Council may determine, in its sole discretion, whether such conditions are material and essential to the franchise and whether the franchisee is in default with respect thereto and may declare the franchise suspended or forfeited. Notice of the hearing shall be given to the franchisee by certified mail not less than ten (10) days before the hearing.

(Ord. 1152, 5-17-2011)

The franchisee 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 franchisee, no greater value shall be placed upon the franchise than the actual cash paid therefor by the franchisee.

(Ord. 1152, 5-17-2011)

If any street or portion thereof becomes a state highway, except for such rights as by law remain with the city, the state shall succeed to all rights reserved to the city by the franchise. This chapter does not apply to any change of location in a state highway for a temporary purpose.

(Ord. 1152, 5-17-2011)

No franchise granted by the city shall in any way impair or affect the right of the city or successor in authority to acquire the property of the franchisee by purchase or through the exercise of the right of eminent domain, and nothing contained in such franchise shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the city’s or the franchisee’s rights of eminent domain before any court or other public authority in any proceeding of any character.

(Ord. 1152, 5-17-2011)

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 are 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 the 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 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 chapter 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.

(Ord. 1152, 5-17-2011)

All facilities erected, constructed, laid, operated or maintained by the franchisee in the streets, including services connected with franchisee's facilities, whether installed by the franchisee or not in the area described in and by virtue of the authority provided by the ordinance granting the franchise, prior to the effective date of the ordinance, except those maintained under prior right other than franchise, shall become subject to all the terms and conditions of such ordinance upon such effective date unless the ordinance provided otherwise.

(Ord. 1152, 5-17-2011; Ord. 1159, 5-1-2012; Ord. 1160, 5-1-2012)

A franchisee may not install or operate any facilities in any public street, highway, road, alley or other public place without first obtaining the prior approval of the City Council by resolution.

(Ord. 1152, 5-17-2011)

Notwithstanding any other provision herein, in the event of release of a contaminant by a franchisee or from any facility of franchisee or the discovery of an environmental condition caused by franchisee or any facility of franchisee, the franchisee shall immediately conduct such remedial work or pay all remediation costs, at its sole expense, as is necessary to fully mitigate and remediate the same in accordance with all applicable law. In the event the franchisee fails within forty-five (45) days after receipt of written demand for compliance in accordance with all applicable law from the city for failure, neglect or refusal to immediately initiate necessary activities toward actual remediation, city may commence a nuisance abatement action or take any other legal action the city deems appropriate under the circumstances.

(Ord. 1152, 5-17-2011; Ord. 1159, 5-1-2012; Ord. 1160, 5-1-2012)

Until such time as (1) the franchise terminates; and (2) the franchisee removes all of its facilities; and (3) completes any necessary remedial work, franchisee will comply with all applicable law. Franchisee will perform all required, regular testing of its facilities in accordance with the provisions of Cal. Gov’t Code § 51013.5.

(Ord. 1152, 5-17-2011)

Upon request, franchisee will transmit to city copies of all notices, orders or statements, other than those constituting confidential information 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 as outlined above 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 unless providing documents to city would conflict with applicable law. Franchisee shall inform city in writing if it has withheld any document as confidential information or pursuant to any applicable law. This statement shall provide the reason justifying the franchisee to withhold the information.

(Ord. 1152, 5-17-2011)

Upon request, the franchisee shall permit the city or its duly authorized representative to examine any or all of franchisee’s facilities, together with any appurtenant property of the franchisee located within the city, and to examine and transcribe any and all books, accounts, papers, maps, and other records, other than confidential information, kept or maintained by the franchisee or under its control which concern the operations, affairs, transactions or property of the franchisee with respect thereto. Such records shall be made available to the city at a location in the County of Orange. Franchisee shall inform city in writing if it has withheld any document as confidential information and the reason franchisee believes the information constitutes confidential information.

(Ord. 1152, 5-17-2011)

A. At the expiration, revocation or termination of the franchise or upon 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 City Engineer for authority, as determined by the franchisee, 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 § 8.42.390 of this chapter, and shall also describe with reasonable accuracy the physical condition of such facilities.

B. The City Engineer shall determine whether the abandonment or removal which is thereby proposed may be effected without detriment to the public interest and under what conditions such proposed abandonment or removal may be safely effected. The City Engineer shall then notify the franchisee of his or her determination. The franchisee shall pay to the city the cost of all tests required to determine whether the facilities shall be abandoned or removed.

C. Within thirty (30) days after receipt of such notice, the franchisee shall apply for a permit from the Department to abandon or remove all or a portion of the facilities and shall pay all fees and costs related thereto. Such permit shall contain such conditions of abandonment or removal as may be prescribed by the City Engineer and these conditions shall be fully complied with to the satisfaction of the City Engineer.

Until so abandoned or removed, fees applicable to the franchise shall continue to accrue. Any abandonment shall be conditioned, in part, upon franchisee’s agreement to comply with the provisions of §§ 8.42.220, 8.42.230, 8.42.240 and 8.42.420 of this chapter.

D. The franchisee shall, within ninety (90) days after obtaining such permit, commence and diligently prosecute to completion the work authorized by the permit.

E. If the franchisee applies for authority to abandon all or a portion of its facilities in place, and the City Engineer determines that abandonment in place of all or part of the facilities may be effected without detriment to the public interest, the franchisee shall pay to the city a fee which shall be computed as follows:

F. Facilities abandoned in place shall be subject to the condition that if, at any time after the effective date of the abandonment, the City Engineer 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 pay city for the cost of such removal. If the franchisee removes the facility or any part thereof, then the city shall refund to the franchisee its reasonable costs of removal, not to exceed the abandonment fee, or proportionate portion thereof if not all of the facilities are removed, that the franchisee paid pursuant to subparagraph E. of this section. If the city removes the facility, the franchisee shall promptly reimburse the city for its costs of removal, as specified in subparagraph H. of this section.

G. If any facilities to be abandoned “in place” subject to prescribed conditions shall not be abandoned in accordance with all such conditions, the City Engineer 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.

H. 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 City Engineer, then 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, less the abandonment fee, or portion thereof if less than all of the facilities are removed, that the franchisee paid pursuant to subparagraph E. of this section.

I. If, at the expiration, revocation or termination of a franchise, or of the permanent discontinuance of the use of all or a portion of its facilities, the franchisee shall, within sixty (60) days thereafter, fail or refuse to make written application for abandonment in place or removal, the City Council shall make the determination as to whether the facilities shall be abandoned in place or removed. The City Engineer shall then notify the franchisee of the City Council’s determination. The franchisee shall thereafter comply with the provisions of subparagraphs C., D. and E. of this section, if the Council approves abandonment of the facilities. Thereafter, the franchisee shall continue to be subject to all provisions of this section.

(Ord. 1152, 5-17-2011)

Any decision made by the City Engineer pursuant to authority delegated in this chapter may be appealed by any interested 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.

(Ord. 1152, 5-17-2011)