HomeMy WebLinkAboutOrdinance #3701 ORDINANCE NO. 3 7 01
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH GRANTING A PIPELINE
FRANCHISE FOR TRANSMITTING WATER IN, UNDER
ALONG AND ACROSS STREETS, IN THE CITY OF HUNTINGTON BEACH
On October 5, 2000, Southern California Water Company, a California corporation
("SCWC," or "Grantee"), pursuant to Decision No. 00-10-029 of the California Public Utilities
Commission ("CPUC"), obtained a Certificate of Public Convenience and Necessity ("CPCN") to
construct a pipeline to provide potable water service to a development on Bolsa Chica Mesa; and
SCWC applied to the City on February 1, 2002 for a franchise to construct, operate and
maintain a water pipeline pursuant to the CPCN;
WHEREAS, on January 18, 2005, the City Council of the City of Huntington Beach adopted
Resolution No. 2005-07 setting forth the Council's intention to grant a water pipeline franchise;
and,
WHEREAS, pursuant to Resolution No. 2005-07, the City Council set the date of February
22, 2005, at the hour of 6:00 p.m., as the time for a public hearing to allow interested persons to
voice any objections to the granting of the franchise; and,
WHEREAS, on February 22, 2005, the City Council conducted and concluded the duly
noticed public hearing and it is now the desire of this Council to grant the franchise, in accordance
with the terms and conditions specified in this Ordinance; and,
NOW, THEREFORE, the City Council of the City of Huntington Beach does ordain as
follows:
SECTION 1. Definitions. Whenever in this Ordinance the words or phrases set forth in this
Section are used, they shall have the respective meanings ascribed to them in the following
definitions (unless, in the given instance, the context clearly indicates a different meaning):
(a) "Applicable Law" shall mean all present or future Federal, State, City, or other local
laws, rules, regulations, franchises, codes, orders, permit requirements, judgments, injunctions, or
decrees, or any judgment or order or decree by a court applicable to Grantee's Facilities or activities
under this Franchise. Whenever the term "Applicable Law" is used, it shall be understood that
SCWC shall not be required to comply with any City or other local laws, rules, regulations, orders,
or permit requirements which are unconstitutional or which conflict with or which are inconsistent
with the paramount authority of the State of California.
(b) "City" shall mean the City of Huntington Beach, a charter city, in its present
incorporated form or in any later reorganized, consolidated or reincorporated form;
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Ordinance No. 3701
(c) "City Property" shall mean the property or facilities owned by the City of
Huntington Beach or the Redevelopment Agency of the City of Huntington Beach.
(d) "Contaminant" shall mean any "hazardous waste" as that term is defined in Section
1004(3) of the Resource Conservation and Recovery Act(RCRA)(42 U.S.C. § 6903(5)).
(c) "Damages" shall mean all claims, losses, liabilities, causes of action, damages,
judgments, debts, costs, contribution or indemnity, expenses (including but not limited to attorney's
fees and costs) fines, penalties. orders injunctions and liens of every kind and nature, including, but
not limited to claims relating to any Release of any Contaminant, claims for personal or bodily
injury, wrongful death, injury to real or personal property, and including claims based on active
negligence, gross negligence, contractual, statutory or strict liability, or otherwise, and any claims
seeking judicial or administrative relief, or relating to any administrative proceedings by any
governmental agency, whether or not any such claim is ultimately defeated.
(f) "Director" shall mean the Public Works Director of the City;
(g) "Facility" or "Facilities" shall mean the water pipeline, together with such related
equipment including but not limited to valves, fittings, manholes, vaults, pumps and other
appliances, appurtenances, or attachments located within the City, as Grantee may deem necessary
or convenient for the purpose of conducting, transporting, conveying and carrying water under,
along, across and upon the public Streets.
(h) "Franchise" shall mean this Ordinance granting a Franchise to SCWC, unless some
other franchise is specified.
(i) "Grantee" shall mean Southern California Water Company, a California corporation
and its lawful successors or assigns;
0) "Lay and use" shall mean to lay, construct, erect, install, operate, maintain, use,
repair, replace or remove;
(k) "Municipal Code" shall mean the Municipal Code of the City of Huntington Beach.
(1) "Person" shall mean any individual, person, firm, partnership or corporation.
(m) "Release" shall mean any release (as that term is defined in Section 101(22) of the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 42 U.S.C.
§9601(22)), or disposal (as that term is defined in Section 1004(3) of the Resource Conservation
and Recovery Act (RCRA, 42 U.S.C. §6903(3)), originating from any Facility(s) under this
Franchise.
(n) "Remediation Costs" shall mean all costs and expenses, including the City's current
rate of overhead, incurred by the City in performing any Remedial Work.
(o) "Remedial Work" means all "Remedial Action," as that term is defined in Section
101(24) of CERCLA [42 U.S.C. § 9601(24)], and all other actions necessary to Respond to,
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Ordinance No. 3701
Remove, or Remedy, as those terms are defined in Sections 101(23), 101(24) and 101(25) of
CERCLA [42 U.S.C. § 9601(23)(24) and(25)] a Release of a Contaminant.
(p) "Streets" shall mean the public streets, ways, alleys and places as the same may now
or hereafter exist within the City.
SECTION 2. Grant of Franchise.
The City hereby grants anon-exclusive water pipeline franchise to Grantee to lay and use up
to an 18-inch pipeline, together with such related equipment and Facilities as Grantee may deem
necessary or convenient for the purpose of conducting, transporting, conveying and carrying water,
under, along, across or upon the Streets and extending generally along the following route:
southerly along Bolsa Chica Street from and including the intersection of Bolsa Chica Street and
Rancho Road to the intersection of Bolsa Chica Street and Los Patos Street, then westerly on Los
Patos Street to the intersection of Los Patos Street and Lynn Street, as more particularly depicted in
Exhibit A attached hereto and in any additional territory, if any, annexed pursuant to Section 5, in
which SCWC has a franchise.
This Franchise only authorizes the transportation of water in an underground pipeline. This
Franchise does not authorize the transportation of any other hazardous or non-hazardous substances
in the pipeline.
All street coverings or openings of traps, vaults, and manholes shall be constructed flush
with the surface of the streets; provided, however, that vents for underground traps, vaults and
manholes may extend above the surface of the streets when said vents are located in parkways
between the curb and the property line subject to the prior approval of the Director, which approval
shall not be unreasonably withheld.
SECTION 3. Term.
The term of this Franchise shall commence thirty (30) days after this Ordinance is adopted,
and shall continue for a period of fifteen (15) years, unless (1) shortened by the voluntary surrender
or abandonment by Grantee, (2)the State of California or some municipal or public corporation
duly authorized by Iaw shall purchase by voluntary agreement or shall condemn and take under the
power of eminent domain, this Franchise or all property actually used and useful in the exercise of
this Franchise, and situated within the territorial limits of this state, municipal or public corporation
purchasing or condemning such property; (3) this Franchise is forfeited for non-compliance with its
terms and provisions; or(4) the CPUC revokes or terminates Grantee's CPCN to serve Bolsa Chica.
SECTION 4. Franchise Fee.
A. Amount of Franchise Fee.
The Grantee shall pay annually to the City at the times and places hereinafter specified, in
lawful money of the United States, a sum equivalent to two percent (2%) of the gross annual
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Ordinance No. 3701
receipts of Grantee arising from the use, operation or possession of the Franchise; provided,
however, that such payments be not less than one percent (1%) of the Grantee's gross annual
receipts derived under this franchise from the sale of water within the limits of the City.
B. Verified Statement.
The Grantee shall file with the City Clerk, within three months after the expiration of
each calendar year, or fractional calendar year, following the effective date of this
Franchise, and within three months after the expiration of each and every calendar year
thereafter, a verified statement setting forth in detail the total gross receipts of the Grantee for
the preceding calendar year or such fractional calendar year derived from the sale of
water within the City, or otherwise arising from the use, operation or possession of this
Franchise. Within fifteen (15) days after the time for filing such verified statement,
Grantee shall pay to the City, the specified percentage of its gross receipts for the
calendar year, or fractional calendar year, covered by the verified statement. Any
neglect, omission or refusal by the Grantee to file the verified statement, or to pay the
specified percentage of gross receipts at the times or in the manner herein provided shall
constitute grounds for the declaration of a forfeiture of this Franchise and all rights of
the Grantee hereunder.
C. Late Franchise Fee Payments.
Franchise fees due from Grantee are delinquent if not received by the City Treasurer on or
before the due date during normal business hours. Should the due date occur on a weekend
or legal holiday, the Franchise fees must be received by the Treasurer during normal
business hours on the first regular working day following the weekend or legal holiday. If
Grantor fails to remit any Franchise fee on or before the due date, Grantee shall pay interest
at the rate of one percent (1%) per month or any fraction thereof on the amount of the fee
from the date on which the fee first became delinquent, until paid.
D. Records. SCWC 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. Upon request, Grantee shall permit the City or its duly
authorized representative to examine all of Grantee's books, accounts, papers, maps, and
other records kept or maintained by SCWC or under its control which concern the
calculation of the Franchise fee. Said records shall be made available to the City for review
at a location in the County of Orange designated by SCWC.
SECTION 5. Written Acceptance; Annexation/Consolidation,
The Franchise granted hereunder shall not become effective until written acceptance thereof
shall have been filed by Grantee with the City Clerk of City. When so filed, such acceptance shall
constitute a continuing agreement of Grantee that if and when City shall thereafter annex or
consolidate with additional territory, any and all franchise rights and franchise privileges owned by
Grantee therein, except a franchise derived under Section 19 of Article XI of the California
Constitution as that section existed prior to the amendment thereof adopted on October 11, 1911,
shall be deemed abandoned in the additional territory.
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Ordinance No. 3701
SECTION 6. City's Right of Eminent„Domain.
The Franchise granted hereunder shall not in any way or to any extent impair or affect the
right of City to acquire the property of Grantee hereof either by purchase or through the exercise of
the right of eminent domain, and nothing herein contained shall be construed to contract away or to
modify or to abridge, either for the term hereof, or in perpetuity, City's right of eminent
domain in respect to Grantee or any public utility, nor shall this Franchise ever be given any
value before any court or other public authority in any proceeding of any character in excess of the
cost to Grantee of the necessary publication and other sum paid by it to City at the time of
acquisition thereof.
SECTION 7. Grantee's Construction, Repair and Indemnity Obligations.
A. Construction_
Grantee shall construct all Facilities, in accordance and in conformity with the parties'
"Agreement Between the City of Huntington Beach and Southern California Water
Company Regarding Construction of a Water Pipeline" and Applicable Law, including
but not limited to the National Pollutant Discharge Elimination System (NPDES) and
governing Air Quality Management District (AQMD) requirements, and all local
ordinances, rules and regulations heretofore, or hereafter adopted by the City Council of
City in the exercise of its police powers and not in conflict or inconsistent with the
paramount authority of the United States of America, the State of California and, as to
state highways, subject to the provisions of general laws relating to the location and
maintenance of such facilities.
B. Repair.
Grantee shall replace, relocate, abandon, remove, operate and maintain all Facilities, in
accordance and in conformity with Applicable Law, including but not limited to the
National Pollutant Discharge Elimination System (NPDES) and governing Air Quality
Management District (AQMD) requirements, and all local ordinances, rules and
regulations heretofore, or hereafter adopted by the City Council of City in the exercise of
its police powers and not in conflict or inconsistent with the paramount authority of the
United States of America, the State of California and, as to state highways, subject to
the provisions of general laws relating to the location and maintenance of such
facilities.
C. Indemnity.
Grantee shall indemnify, defend and hold harmless the City, its officers and
employees, when acting within the scope of their employment, from and against any
and all liability for all Damages proximately resulting from any operations under this
Franchise, and for all Damages proximately resulting from the failure of Grantee to
well and faithfully observe and perform each and every provision of this Franchise.
Nothing contained herein shall be construed to require the Grantee to indemnify the
City, its officers or employees against any Damages or liability caused by the active
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Ordinance No. 3701
negligence or willful misconduct of the City, its officers, agents, employees or
independent contractors. Grantee shall be solely responsible for complying with
Applicable Law in connection with the installation, repair, relocation or removal by
Grantee of any of its facilities or by any person engaged by Grantee to install, repair,
relocate or remove any such Facilities.
D. Compliance With Applicable_Law.
Grantee shall comply at all times with Applicable Law.
E. Relocation.
Grantee shall, at the request of the City and at Grantee's sole cost and expense, remove or
relocate any Facilities installed, used or maintained under this Franchise if and when made
necessary by any change in grade, alignment or width of any public street, way, alley or
place, or the construction of any subway or viaduct, or any other street improvement-of
any kind required by the City or the City Redevelopment Agency. Grantee shall relocate its
Facilities to the nearest alternative location or other location as reasonably established by the
Director, and within such time as the Director reasonably establishes. If Grantee fails to
relocate its Facility within the required time, the City may cause the work to be done and
shall keep an itemized account of the entire cost thereof, and Grantee shall reimburse the
City or other public entity for its reasonable costs within ninety (90) days after presentation
to Grantee of an itemized account of such costs.
F. Sale, Transfer or Assignment
At least thirty (30) days prior to any sale, transfer, assignment or lease of this Franchise, or
any part thereof, or any of the rights or privileges granted thereby, Grantee shall file with the
City written evidence of the same, certified thereto by Grantee or its duly authorized
officers.
SECTION 8. Emereency Response Plans.
Grantee shall, at all times during the term of this franchise, maintain emergency response
plans as required by regulatory agencies having jurisdiction.
SECTION 9. Authority of Director.
Grantee shall not perform any work pursuant to the Franchise without first obtaining an
encroachment permit from the Director pursuant to Applicable Law; provided, that in cases of
emergency affecting public health or safety or the preservation of life or property, Grantee shall to
the extent reasonably practicable, apply for such permits no later than the next business day. All
modifications and repairs of the Facilities shall be accomplished pursuant to Applicable Law.
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Ordinance No. 3701
SECTION 10. Facility Location Mates.
Within ninety (90) days following the installation of any Facility, Grantee shall file a
map or maps showing the accurate location and size of all its Facilities then in place, and
shall, upon installation of any additional Facilities or upon removal, change or abandonment
of all or any portion thereof, file a revised map or maps showing the location and size of all
such additional and/or abandoned Facilities as of that date.
SECTION 11. Tunnel or Bore When Possible.
Where it is necessary to lay any underground pipes in or under any portion of a paved
street, the same shall be done by a tunnel or bore, so as not to disturb the foundation of such
paved street, to the extent it is practicable and economically reasonable to do. In the event that
the same cannot be done, such work shall be done under a permit to be granted by the Director
upon application therefor and subject to ordinances and rules adopted by the City in the exercise
of its police powers and not in conflict with or inconsistent with the paramount authority of
the State.
SECTION 12. Damage to Street or Property.
If any portion of any street shall be damaged by reason of defect in any of the
Facilities maintained or constructed under this Franchise, or by reason of any other cause
arising from the operation or existence of any Facilities constructed or maintained under this
Franchise, Grantee shall, as soon as reasonably practicable and at its own cost and expense,
repair such damage and restore such street or portion of street to as good a condition as
existed before such defect or other cause or damage occurred, and so that the useful life of the
street is not reduced. Such work shall be completed under the direction and approval of the
Director, which approval shall not be unreasonably withheld, and in accordance with
Applicable Law. Grantee shall obtain from the City an encroachment permit before doing any such
work.
In the event of Release of a Contaminant by Grantee or from any Facility of Grantee,
Grantee shall immediately conduct such Remedial Work and pay all Remediation Costs, at its sole
expense, as is reasonably necessary to remedy the same in accordance with Applicable Law.
In the event that Grantee shall fail or neglect to make such Street repair, replacement,
restoration work or conduct such Remedial Work, then thirty (30) days after written notice therefor
has been given Grantee by the Director, the City may repair, replace or restore said Street at the
expense of Grantee. Grantee agrees to pay to the City the reasonable cost of performing such work.
The amount so chargeable shall be the direct cost of such work or the reasonable cost of such work
(whichever is lower) plus the current rate of overhead being charged by the City for reimbursable
work.
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Ordinance No. 3701
SECTION 13, Grantee's Failure to Comply With Franchise.
The City may declare this Franchise forfeited at such time that Grantee fails, neglects,
or refuses to comply with any of the provisions or conditions hereof following thirty (30) days'
written demand for compliance or as soon thereafter as is reasonably practicable under the
circumstances and as mutually agreed by the Director and the Grantee. Grantee shall, upon
commencement of the work of compliance, prosecute the same with due diligence to
completion. Grantee's obligations under Section 7(e) shall survive termination of this
franchise.
SECTION 14. Grantee's Obligations Upon Expiration, Revocation or Termination.
Upon the permanent discontinuation of use of the Facilities or any portion thereof,
Grantee shall, within twenty (20) days thereafter, provide written notice to the Director of Grantee's
intention to either (1) abandon all, or a portion, of such Facilities in place, or (2) remove all,
or a portion, of such Facilities. Such notice shall describe the location of the Facilities desired to
be abandoned or removed and the relative physical condition of such Facilities. The Director shall
determine whether such abandonment or removal may be effected without detriment to the
public interest and under what conditions and terms the proposed abandonment or removal may
be safely accomplished and shall then notify Grantee of such requirements. Grantee shall,
within ninety (90) days thereafter, either remove or abandon all or a portion of such Facilities
as may be reasonably necessary to comply with all provisions of Applicable Law.
SECTION 15. Surety.
Grantee shall, within ten (10) days after the posting of this Ordinance, file with the City
Clerk of City a corporate surety bond in the sum of Fifty Thousand Dollars ($50,000.00) on
condition that Grantee ,shall well and truly observe, fulfill and perform each and every term,
condition and requirement of this franchise. In the event of any breach of any condition of the
aforesaid bond, the whole amount of the sum therein named shall be deemed to be liquidated
damages, and the same shall be recoverable from the principal and sureties upon the bond. In the
event that such breach does not result in a forfeiture of the franchise, Grantee shall be required to
replenish the bond in the original amount as a condition to continued operation of the franchise.
SECTION 16. Insurance.
Grantee shall, at Grantee's sole cost and expense, keep or cause to be kept in full force
and effect at all times, for the mutual benefit of City and Grantee, a comprehensive form of
general public liability insurance against claims and liability for personal injury, death, or
property damages arising from the use, construction, or maintenance of this franchise of at Ieast
One Million Dollars ($1,000,000.00) for bodily injury or death to any one person, at least
Two Million Dollars ($2,000,000.00) for any one accident or occurrence, and at least Five-Hundred-
Thousand Dollars($500,000.00)for property damage.
S
Ordinance No. 3701
Grantee shall furnish City with certificates or endorsements representing all insurance
required by this Ordinance. All such certificates or endorsements shall contain language to the
effect that (1) the City, its officers and employees are listed as additional insureds, (2) the insurer
waives the right of subrogation against City and against City's agents and representatives, (3) the
policies are primary and noncontributing with any insurance that may be carried by City, and (4) the
policies cannot be canceled or materially changed except after thirty (30) days notice by the insurer
to City. Grantee shall furnish City with copies of all such certificates or endorsements promptly
upon receipt of them. Grantee may effect for its own account any insurance not required under this
Ordinance.
Grantee shall deliver to City, in the manner provided for notices, certificates or
endorsements of all insurance policies required by this Ordinance, together with evidence
satisfactory to City of payment required for procurement and maintenance of the policy, within
the following time limits:
(i) For insurance required at the commencement of this Ordinance, within ten
(10) days after this Ordinance becomes effective; and
(ii) For any renewal or replacement of a policy already in existence, within ten
(10) days following the expiration or other termination of the existing policy.
If Grantee fails or refuses to procure or maintain insurance as required by this Ordinance, or
fails or refuses to furnish City with required proof that the insurance has been procured and is in
force and paid for, City shall have the right at City's election and on ten (10) days notice, to declare
the forfeiture of this Franchise.
SECTION 17. Notices.
Any notice required to be given under the terms of this Franchise may be served as follows:
Upon City, by serving the City Clerk personally, or by sending a written notice to the City
Manager of the City Clerk of the City of Huntington Beach, 2000 Main Street, Huntington Beach,
California 92648, by certified mail, overnight mail service, confirmed or hand delivery.
Upon Grantee, by sending a written notice to Grantee addressed to Southern California
Water Company, 2143 Convention Center Way, Suite 110, Ontario, California 91764, Attention:
Vice President Customer Service, by certified mail, overnight avail service, or hand delivery.
Either party may from time to time provide the other a notice of change of address in
writing, which shall become operative upon receipt for purposes of this agreement.
SECTION 18. Severability.
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any
reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this Ordinance. The City
9
Ordinance No. 3701
Council of the City of Huntington Beach hereby declares that it would have adopted this Ordinance
and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that
any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
SECTION 19. Effective Date.
This Ordinance shall take effect thirty (30) days after the date of its adoption. The City
Clerk shall certify to the passage and adoption of this Ordinance and within fifteen (15) days small
cause same to be published in a newspaper of general circulation in the manner provided by law.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular
meeting thereof held on the 7th day of March 2Q05_
Ar
ATTEST: APPROVED AS TO FORM:
ity Clerk City Atto ey f
REVIEWED AND APPROVED: INITIATED AND PPROVED:
LdA
City Adi inistrator Director of P 1c Works
10
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Ordinance No. 3701
Southern California
0 * • WATER COMPANY
A Subsidiary of American States Water Company
EIV .APR 2 2 2005
April 20, 2005 Qty0ttjunM7gt n eac
CifirAttarneus Off;"-
A
Mr. Scott Field
Assistant City Attorney
City of Huntington Beach
2000 Main Street, 4th Fluor
Huntington Beach, CA 92648
Dear Mr. Field:
Enclosed is an original signed Written Acceptance of franchise dated April 20, 2005 for
your files.
If you have any questions, please feel free to call me at(909) 937-0111 ext 313.
Sincerely,
6iames B. Gallagher
Vice President
Customer Service—Region III
3BG:MP
Enclosure
c: Mr. Bobby Swerdlow, O'Melveny & Myers
2143 Convention Center Way, Ste. 110,Ontario, CA 91764
Tel:(909) 937-0111 Fax:(909)937-0222
Ordinance No. 3701
WRITTEN ACCEPTANCE OF FRANCHISE
City of Huntington Beach, California
Southern California Water Company, a California corporation, hereby accepts the
franchise granted by the City Council of the City of Huntington Beach on March 7, 2005, by
Ordinance No. 3701.
DATED: ' f i 1 a , 2005
6.asB. Gallagher
Te President- Customer Service, egion ill
LA1:I043121.1
Ord. No. 3701
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 re�ula,r
meeting thereof held on the 22nd day of February, 2005, and was again read to said
City Council at a regular meeting thereof held on the 7th day of March,2005, and was
passed and adopted by the affirmative vote of at least a majority of all the members of
said City Council.
AYES: Hansen, Coerper, Hardy, Green, Bohr, Cook
NOES: Sullivan
ABSENT: None
ABSTAIN: None
1,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 March 17,2005.
In accordance with the City Charter of said City _
Joan . Flynn, fty Clerk ity Clerk and ex-offs Clerk
Deputy City Clerk of the City Council of the City
of Huntington Beach, California