Tehama County Municipal Code Art. III Terms and Conditions

Whenever the length of any wire, pipe or conduit is a factor in calculating any payment due under any franchise granted by the county, all service connections shall be excluded in determining such length.

(Ord. 1716 §1(part), 1999)

Once a franchise is granted it shall be held and enjoyed upon each and every condition contained in the ordinance granting the franchise, including such conditions contained herein as are incorporated by reference in said franchise ordinance, and shall ever be strictly construed against the grantee. Nothing shall pass thereby unless it be granted in plain and unambiguous terms. Any neglect, failure or refusal to comply with any of the conditions of the franchise shall constitute grounds for the suspension or forfeiture thereof. The board, prior to any suspension or forfeiture of the franchise, shall give to the grantee not less than thirty days notice in writing of any default thereunder. If the grantee does not begin within the noticed period the work of compliance or after such beginning does not prosecute the work with due diligence to completion, the board may hold a hearing at which the grantee shall have the right to appear and be heard and, thereupon, the board may determine whether such conditions are material and essential to the franchise and whether the grantee is in default with respect thereto and may declare the franchise suspended or forfeited. Notice of said hearing shall be given to the grantee by certified mail not less than five days before said hearing.

(Ord. 1716 §1(part), 1999)

The granting of a franchise or any of the terms or conditions contained therein shall not be construed to prevent the county from granting any identical or similar franchise to any person other than the grantee.

(Ord. 1716 §1(part), 1999)

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 regulating the rates of the grantee, no greater value shall be placed upon the franchise than the actual cash paid therefor by the grantee, including the cost of advertising paid by the grantee pursuant to Section 6.22.150. This provision shall apply to any grantee which at the time of acquiring the franchise was not a public utility, but subsequently becomes a public utility.

(Ord. 1716 §1(part), 1999)

It is not intended by the grantor to include in the franchise any portion of the county which on the effective date of the ordinance granting the franchise, is included within any municipal corporation, and whenever thereafter any portion of the territory covered by the franchise shall be included within any municipal corporation, the rights reserved under the franchise to the county or any officer thereof, shall as to the territory so included in the municipal corporation, inure to the benefit of such municipal corporation and its appropriate officers, so long as the grantee maintains its facilities pursuant to such franchise in the streets of the portion of the city so annexed.

(Ord. 1716 §1(part), 1999)

If any highway or portion thereof becomes a state highway, except for the right to continue to collect franchise payments and such other rights as by law remain with the county, the state shall succeed to all rights reserved to the county by the franchise; but this provision shall not preclude the grantee from receiving reimbursement for the relocation of its facilities if, and to the extent, otherwise lawfully entitled thereto. This section applies to any highway or portion thereof which becomes a state highway in which the grantee maintains its facilities under the authorization of the franchise at the time such highway or such portion thereof becomes a state highway, whether at such time it is under the jurisdiction of the county, or of a city or of any public entity. This section does not require any change of location in a state highway for a temporary purpose.

(Ord. 1716 §1(part), 1999)

If any highway or portion thereof comes under the jurisdiction of any city or public entity, so long as the facilities of the grantee are maintained in such highway or such portion thereof under the authorization of the franchise, except for such rights as by law remain with the county, the city or public entity shall succeed to all rights reserved to the county by the franchise.

(Ord. 1716 §1(part), 1999)

A. The franchise fee payable to the county during the life of the franchise by a public utility providing electrical service or gas to consumers shall be two percent of the grantee's gross annual receipts arising from the use, operation or possession of the franchise, except that this payment shall be not less than one percent of the grantee's gross annual receipts derived from the sale within the limits of the county of the utility service for which the franchise is awarded. If the successful bid is for a franchise complimentary to a franchise derived under Section 19 of Article XI of the California Constitution as that section existed prior to its amendment on October 10, 1911, then the grantee shall pay annually; if the franchise is an electric franchise, two percent of the grantee's gross annual receipts arising from the use, operation, or possession of the franchise, except that this payment shall not be less than one half of one percent of the grantee's gross annual receipts from the sale of electricity within the limits of the county under both the electric franchises; or, if the franchise is for a gas, oil pipeline, or water franchise, two percent of the grantee's gross annual receipts arising from the use, operation, or possession of the franchise, except that this payment shall be not less than one percent of the gross annual receipts from the sale of gas or water within the limits of the county under both the gas franchises or both the water franchises.

B. The franchise fee payable to the county for public utility pipeline systems transporting oil or the products thereof shall be a fee calculated pursuant to Public Utilities Code Sections 6231.5(a)(3), 6231.5(b)(1) and 6231.5(b) (2) as such sections may be amended from time to time.

C. The franchise fee payable to the county during the life of the franchise for a nonpublic utility pipeline for industrial gas or for a nonpublic utility pipeline transporting oil or products thereof, shall be established as set forth in Public Utilities Code Section 6231.5(e). Any nonpublic utility that converts to a public utility shall pay the rate agreed upon in the franchise agreement until the expiration of said franchise.

(Ord. 1716 §1(part), 1999)

The grantee of any franchise wherein the grantee is obliged to pay a franchise fee based upon a percentage of the gross annual receipts of the grantee arising from its use, operation or possession shall file with the county auditor-controller for each franchise payment period, within ninety days after such period, two copies of a report verified by the oath of the manager, or any responsible officer of the grantee (except where the grantee is an individual in which case the report shall be verified by the oath of the grantee) showing the total gross receipts of the grantee for the franchise payment period, received or accrued in connection with the furnishing of the commodity or service arising from the use or operation of the franchise, together with such additional data as is necessary in the opinion of the county auditor-controller to calculate or verify the calculation of the annual payment required by Section 6.22.125 (or the pro rata thereof for the first period if the first period is less than one year) and which payment shall be paid concurrently with the filing of the statement.

In the event the amount paid is incorrect in the judgment of the board, it may order the payment of such additional sum as it may find due thereunder; and if not paid, or if paid under protest, the same may be determined by suit.

(Ord. 1716 §1(part), 1999)

Should any annual report and accompanying payment not be made under Section 6.22.130 within the ninety-day period therein mentioned, the grantee shall further pay interest on the amount due under that section at the rate of one percent per month from the last day of the franchise payment period for which said payment was due.

(Ord. 1716 §1(part), 1999)

The grantor and its successor in authority, including any city now existing or hereafter formed in the territory included in any franchise, shall have the right at any time during the term of the franchise to acquire the works, property and rights of the grantee (if such grantee is not a public utility under the jurisdiction of the Public Utilities Commission), or any portion thereof constructed, acquired or operated under the franchise upon making reasonable compensation therefor.

(Ord. 1716 §1(part), 1999)

The grantee, except the United States of America, in which case use will constitute acceptance, shall within sixty days after the passage of the ordinance granting the franchise, file with the clerk of the board a written acceptance of the terms and conditions of said ordinance including such terms and conditions hereof as are incorporated by reference in the said ordinance.

(Ord. 1716 §1(part), 1999)

The grantee shall pay to the county within forty days after mailing the statement for all advertising and publishing costs (including the cost of publishing the ordinance granting a franchise) incurred in connection with the granting of the franchise.

(Ord. 1716 §1(part), 1999)

At all reasonable times the grantee shall permit any duly authorized representative of the board to examine all property of the grantee erected, constructed, laid, operated or maintained pursuant to the franchise, together with any appurtenant tenant property of the grantee, and to examine and transcribe any and all books, accounts, papers, maps and other records kept or maintained by the grantee or under its control which treat the operations, affairs, transactions, property or financial condition of the grantee with respect thereto.

(Ord. 1716 §1(part), 1999)

The grantee shall not sell, transfer, assign or lease the franchise or any part thereof, absent the consent of the board. Such sale, transfer, assignment or lease shall be only by filing with the board a copy of the duly executed instrument of such sale, transfer, assignment or lease and a written request for the consent of the board to such sale, transfer, assignment or lease. If such duly executed instrument and such written request is not filed with the board before the expiration of sixty days after the effective date of such transfer, assignment or lease, then upon the expiration of said sixty days, the franchise shall be subject to forfeiture and the board may without notice, by ordinance, repeal the franchise. As a condition to the granting of consent to such sale, transfer, assignment or lease, the board may impose such additional terms and conditions upon the franchise and upon the grantee or assignee which the board may deem to be in the public interest. Such additional terms and conditions shall be expressed by ordinance. 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 voluntary act of the grantee or otherwise. No such consent shall be required to any transfer of the franchise in trust or by way of mortgage or hypothecation with all or a part of grantee's other property for the purpose of securing any indebtedness of grantee. In the event the grantee hypothecates the franchise, and in the event of foreclosure the creditor may assume the franchise provided that: (a) the facilities are properly maintained; (b) all terms and conditions of the franchise and other county requirements are being adhered to; and (c) the creditor agrees in writing to be bound by the terms of the franchise and not to assign or transfer the franchise without the approval of the board. In the event of transfer or assignment for any cause, the board shall have the right to substitute for the security a new security conditioned upon the assignee or transferee well and truly observing, fulfilling and performing the terms and conditions of the franchise, and upon the filing of said security with and the approval thereof by said board, to exonerate and excuse further liability upon the original security.

(Ord. 1716 §1(part), 1999)

All facilities erected, constructed, laid, operated or maintained by the grantee in highways, including services connected with the grantee's facilities, whether installed by the grantee 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 said 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.

(Ord. 1716 §1(part), 1999)

Any right or power conferred, or duty imposed upon any officer, employee, department or board of the county shall be subject to transfer by operation of law to any other officer, employee, department or board of the county.

(Ord. 1716 §1(part), 1999)

The term of a franchise begins on the date the ordinance granting it becomes effective.

(Ord. 1716 §1(part), 1999)

No facility installation, repair or maintenance which disturbs the surface of any highway or obstructs its public use shall be started without first obtaining a permit from the road commissioner or board. All installations under the franchise shall be performed in accord with the provisions and conditions prescribed by law and of all applicable ordinances and regulations of the county of Tehama and with the least possible hindrance to the use of the highways for purposes of travel. Any excavations in the highways shall be backfilled, compacted to the degree required by the road commissioner and the surface placed in as good condition as it was at the time of beginning such work and to the satisfaction of the county. The board may elect to repair any highway or any portion of any highway in which the grantee may have excavated for the purpose of making installations hereunder, and the reasonable cost of such repairs shall be a charge against the grantee to be paid within thirty days after billing by the county.

(Ord. 1716 §1(part), 1999)

If facilities, as defined in Section 6.22.045 herein, cover proposed pipelines and it is necessary to lay pipe across or under any portion of the pavement, it shall be done by a tunnel or bore unless the road commissioner directs otherwise. The board retains the power to refuse permission for the laying of pipe across or under any paved highway if it believes that the work cannot be done without permanent damage to the highway.

(Ord. 1716 §1(part), 1999)

The right is reserved in the county of Tehama to: (1) change the grade, alignment, or width of any public road over which a franchise is granted; or (2) extend, place, lay or construct an installation of any kind of nature including the construction of any subway or viaduct, whether or not it is within the facilities granted by franchise, over, in, upon or under any public road. In the event county desires to exercise any of the foregoing powers, written notice shall be given by the board or road commissioner of the county's intention to do so. Grantee at its own cost and expense shall begin and, within a reasonable time not to exceed ninety days following receipt of said notice (except and unless a greater time is granted by the board or the road commissioner), complete a change of location of all installations made by it in its operations under the franchise so as to permit and conform to such change or installation desired to be made by the county.

(Ord. 1716 §1(part), 1999)

In the event that the county or any successor governmental agency or instrumentality shall construct, install, reconstruct or repair any bridge or artificial support in or underlying any highway in which the franchise property is located or which is prescribed as the location for any franchise property, and the cost thereof be increased in order to provide for the installation, maintenance or operation of the franchise property in or on the highway area covered or underlain by said bridge or other artificial support, then the grantee shall pay to the county or such successor governmental agency or instrumentality doing such work the full amount of such increase of cost upon completion of such construction, installation or repair.

(Ord. 1716 §1(part), 1999)

No provision of this franchise shall be so construed as to impose upon the county any duty or obligation to construct, repair or maintain any highway, including those areas in which franchise property is located, to any particular standard.

(Ord. 1716 §1(part), 1999)

The grantee shall file with the board a map within thirty days after any installation by it under this franchise showing in detail the length and details of such installation and the location of the same with its beginning and terminus in the highway both with reference to the surface and with reference to the property lines along said highway.

(Ord. 1716 §1(part), 1999)

All installations constructed and maintained under the provisions of a franchise upon any highway which becomes or has become a state highway within any portion of the territory covered by this franchise shall be constructed and maintained in conformity with all the laws of the state of California relating to the control and maintenance of any such state highways and all ordinances, rules and regulations prescribed by the Department of Engineering or other offices of the state of California which may be authorized by law to exercise power and control over such state highway.

(Ord. 1716 §1(part), 1999)

If the grantee shall fail to comply with any instructions of the board with respect to the location of any installation or the repair of any damage to highways done by grantee in construction or maintenance thereof within ten days after the service of written notice upon the grantee, requiring compliance therewith, then the board may immediately declare the franchise forfeited and/or do at the cost and expense of said grantee whatever work is necessary to carry out the said instructions, which cost by acceptance of the franchise said grantee agrees to pay upon demand.

(Ord. 1716 §1(part), 1999)

The installation shall be commenced in good faith within not more than four months from the date of granting of the franchise and if not so commenced within said time, said franchise so granted may be declared forfeited. The work of installation shall be prosecuted diligently and in good faith so as to satisfy the reasonable purposes for which this franchise is granted. The commencement of installation may be postponed in the discretion of the road commissioner for a period not to exceed six months if in his judgement anticipated weather conditions would make the proposed installation inappropriate.

(Ord. 1716 §1(part), 1999)

Within five days after said franchise is awarded, the successful bidder shall file with the board a bond running to the county in a sum set by said board, with at least two good and sufficient sureties or, executed by a surety company authorized to do business in the state of California, conditioned that said bidder shall well and truly observe, fulfill and perform each and every term and condition of said franchise, and in case of any breach of condition of said bond the whole amount of the penal sum therein named shall be taken and deemed to be liquidated damages and shall be recoverable from the principal and sureties upon said bond. If said bond is not so filed, the award of said franchise will be set aside and any money paid therefore will be forfeited.

In lieu of a faithful performance bond and if the application for a franchise is filed pursuant to Section 26001 of the Government Code and pursuant to Chapter 2, Division 3 of the Public Utilities Code, then any grantee may deposit money, a certificate of deposit, bearer bonds or bearer note of the United States or the state of California, savings accounts assigned to the county, or investment certificates or share accounts assigned to the county, or certificates for funds or share accounts assigned to the county pursuant to California Code of Civil Procedure Section 995.710 and in the form approved by the board of supervisors and for a penal sum set by said board. The amount of the sum of a bond or certificate of deposit shall be taken if the grantee fails to well and timely observe, fulfill and perform each term and condition of the franchise. It is understood that in the event of the taking of said bond or certificate of deposit, that said action shall be in addition to those remedies outlined in the franchise granted to the party.

Said bond, a substitution bond or certificate of deposit shall be kept on file with the board of supervisors throughout the term of the franchise. Any substitution of said bond with another bond shall be preceded by sixty days prior written notice to the risk management division of the county.

(Ord. 1716 §1(part), 1999)

Grantee, at its cost and expense, at all times during the term of the franchise, shall maintain in force, a commercial general liability policy of insurance, including broad range form property damage coverage, owner's and contractor's protective insurance (during construction), fire legal liability coverage, and contractual liability coverage for obligations under the franchise, naming the county of Tehama, its officers, agents, employees and volunteers as additionally insured, acknowledging that the franchise shall be used for oil, gas, and other hydrocarbon substances pipelines as the case may be, and covering the franchise with a per location general aggregate. Such insurance policy or policies shall be maintained in the amount of ten million dollars, or such other amount as may be deemed appropriate in a specific ordinance granting a particular franchise. Such insurance shall include a pollution endorsement customarily issued for pipeline or oil operations, provided, however, that such endorsement shall expressly cover all sudden and accidental releases of oil, gas, and other hydrocarbon substances and any other oil or hazardous materials transported in the pipelines. Such insurance shall be in the occurrence form; claims made policies are prohibited.

The insurance which the grantee shall provide shall be primary insurance and the insurer shall be liable for the full amount of the loss up to and including the total limit of liability required hereunder without the right of contribution from any other insurance coverage that may be held by the county.

All insurance to be provided by grantee shall be procured from responsible insurance companies licensed to do business in the state of California and have a minimum Best's rating of B+, V. All such insurance certificates shall be delivered to the county simultaneously with the execution and delivery of the acceptance of the proposed franchise, and the grantee shall endeavor to deliver evidence of renewals thereof to the county of Tehama at least thirty days prior to the respective expiration dates of such policies. The county shall be provided at least thirty days' written notice of any termination of or amendments or changes to the terms of such insurance policies.

(Ord. 1716 §1(part), 1999)

The grantee shall defend, indemnify, and hold harmless the county of Tehama and its officers from all liability for damages proximately caused and/or resulting from any operation under the franchise.

(Ord. 1716 §1(part), 1999)

The county of Tehama may, for the good of the public, impose additional terms and conditions not in conflict with the Franchise Act of 1937 contained in the Public Utilities Code Section 6231 and following, or not contained herein.

(Ord. 1716 §1(part), 1999)

Any provision, clause or section of this chapter, or the application thereof, which is, or becomes inconsistent or in conflict with any of the laws of the United States of America or state of California shall be deemed to be preempted and superseded.

Any provision, clause or section of this chapter, or the application thereof, which is preempted or superseded shall not preempt, supersede or in any other way invalidate the other provisions, clauses or sections of this chapter which can be given a reasonable effect without the preempted or superseded provision, clause, or section, and to this end, the provisions, clauses, and sections of this chapter are hereby declared to be severable.

(Ord. 1716 §1(part), 1999)

If any provision of this chapter or the application thereof to any person or circumstances is for any reason held invalid, such invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provisions or applications thereof, and to this end the provisions of this chapter are severable.

(Ord. 1716 §1(part), 1999)