Loading...
HomeMy WebLinkAboutSO CAL WATER CO. - SCWC - 2005-01-18 w PROOF OF PUBLICATION STATE OF CALIFORNIA) ) ss. COUNTY OF ORANGE ) WICEGFPMUCftARIBG - — time, and that, in the REGARDS WHETHER THE' event such payment is �ITY(OUN(QOF THE(R1f not made, the franchise am a Citizen of the United States and a may betherfeited. OFHUNTUIGTON At the above-men- ' $EACNSHAl1GRANT tioned timeG and place resident of the County aforesaid; I am any person interested AWATERPU'El1NE will .be heard on the over the age of eighteen years, and not a FRaNcwsE 1proposed ordinance. A 1 copy of the proposed party to or interested in the below entitled TOSOUTHERNCWORW iordinance is on file in WATER(OMPAR Ithe City.Clerk's office. matter. I am a principal clerk of the Notice is hereby given !Any questions on the proposed ordinance may HUNTINGTON BEACH INDEPENDENT that on January lfii !be directed to Scott 2005, the City Council Field, Assistant City of the City of Huntington 'Attorney, (714) 536- a newspaper of general circulation, Beach adopted.a Reso- 5555. lution entitled "A Reso- Any person may make printed and published in the City of lution of the City Coucil of the written protest stating .City of Huntington objections against Beach Declaring Its granting the franchise by Huntington Beach, County of Orange, Intention To Grant a delivering ,the written State of California, and that attached water Pipeline Franchise protest signed the to Southern California _protestant to the City Water Company. The Clerk at a time not later Notice is a true and complete copy as City Council of the City than 3:00 p.m. on of "untington Beach February 22,2005. was printed and published in the hereby gives notice as ,s, Joan Flynn, City follows: Clerk,city of Huntington Huntington Beach issue of said On Tuesday, February Beach 22, 2005- at 6:00 p.m. Published Huntington newspaper to wit the Issue(s) of: as soon thereafter be Beach Independent Jan- the matter may be uary 27,2005 014-402 heard, in the regular _ meeting place of this City Council[, City Councif Chambers, City I Hall, 2000 Main Street,1 Huntington Beach, Cali- fo rnia,, the City Council JANUARY 27 2005 (will conduct a public • hearing on whether to ladopt "An Ordinance Of The City Council Of The City Of Huntington Beach Granting A Pipe- line- Franchise For Transmitting Water In, Under,Along And Across Streets In The City Of declare, under penalty of perjury, that Huntington Beach," If adopted„ this ordinance will grant Southern the foregoing is true and correct. California Water Com- pany a -water pipeline franchise to provide water service to the Bolsa Chica Mesa, Executed on JANUARY 27.2005 pursuant to Decision No. 00-10-029 of the Cali- at Costa Mesa California. fornia Public Utilities Commission. If granted, the franchise will ter- minate in fifteen (15) years,and provides that Southern California Water Company will pay to the City of Huntington Signature Beach an annual fee consistent with Section 6231(c)of the California Public Utilities Code, as amended from time to Southern California •-• • WATER COMPANY A Subsidiary of American States Water Company RECEIVE APR 2 2,2005 April 20, 2005 CityotNuntmgtonSeaci CityAttomev's 0> �r,� • Mr. Scott Field Assistant City Attorney City of Huntington Beach 2000 Main Street,4t' Floor Huntington Beach, CA'92648 Dear Mr. Field: Enclosed is an original.signed Written Acceptance of Franchise dated April 20, 2005 for your files. y If you have any questions, please feel free to call me at(909) 937-0111 ext 313. Sincerely, amen B. Gallagher Vice President Customer Service—,Region III JBG: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 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. 3 70 1. DATED:. /'i a d 92005 L78 . a B. Gallagher (V�e President-Customer Service, egion ill LA1:1043121.1 CITY OF HUNTINGTON BEACH ' 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK LETTER OF TRANSMITTAL OF ITEM APPROVED BY THE CITY COUNCILI REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH DATE: TO: - _AJ 9-12 ATTENTION: *lame �f (Z2Z NUS 7jdx� t� DEPARTMENT: IQ7y3-)(-I C1 ; (S4 g/_ �, REGARDING: Cam!7— city,state,zip See Attached Action Agenda Item. Date of Approval � � Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item. Remarks: jj�� �ciClerk Attachments: Action Agenda Page Agreement k--'-B-onds Insurance RCA Deed Other E1� N nt RCA Agre-cm Insurance Other Name Depamrent RCA Agreement Insurance Other Name Department RCA Agreemnt Insurance Other Name Department RCA Agreement Insurance Other Name Department RCA Insurance 91folowupfletters/coverltr.doc (Telephone.714-536-5227) ee JA CITY OF HUNTINGTON BEACH Inter-Department Communication TO: SHAR.I FREIDENRICH, City Treasurer FROM'. SCOTT FIELD, Assistant City Attorney DATE: April 6, 2005 SUBJECT: Ordinance No. 3701 Granting a Pipeline Franchise to Southern California Water Company Enclosed is the surety bond Safeco issued in favor of the City in connection with the SCWC pipeline franchise. Also enclosed is a copy of Ordinance No. 3701. Section 15 requires that SCWC post a surety bond with the City. I believe the Treasurer keeps these bonds for safekeeping. If you have any questions, please don't hesitate to contact me. SCOTT FIELD Assistant City Attorney Enclosures RECEIVED APR 0 6 2005 City Treasurer's Dept. G:1PL.EAD1Southern CA Wa#erlCorrespondencelMemo-Freiflenrich.doc Bond No_ 6336640 KNOW ALL MEN BY THESE PRESENTS: That we, SOUTHERN CALIFORNIA WATER COMPANY, herin referred to as the Principal, and SAFECO INSURANCE COMPANY OF AMERICA,a corporation organized and existing under the laws of the State of WASHINGTON,as Surety.are held and firmly hound unto THE CITY OF HUNTINGTON BEACH, CALIFORNIA hereinafter referred to as Obligee,in the sum of FIFTY THOUSAND and 00/100 DOLLARS ($50,000.00)lawful money of the United States of America,to the payment of which sum,well and truly to be made,we bind ourselves,our executors,administrators,successors and assigns,firmly by these presents. The Surety shall also undertake to pay reasonable attorneys'fees and other costs incurred by the City in enforcing the Surety Bond. THIS OBLIGATION IS SUCH,that whereas,the Principal has made application for a license or permit to the Obligee for the purpose of,or to exercise the vocation of FRANCHISE OPERATIONS IN ACCORDANCE WITH CITY ORDINANCE. NOW,THEREFORE, if the Principal shall faithfully comply with all ordinances, rules and regulations Mich have been or may hereafter be in force concerning said License or Permit,and shall save and keep harmless the Obligee from all loss or damage which it may sustain or for which it may became liable on account of the Issuance of said license or permit to the Principal,then this obligation shall be void;otherwise,to remain In full force and effect, THIS BOND WILL EXPIRE MARCH 20,2006,but may be continued by continuation certificate signed by Principal and Surety.The Surety may at any time terminate its liability by giving thirty(30)days notice to the Obligee,and the Surety shall not be liable for any default alter such thirty day notice period,except for defaults occurring pry thereto. Surety is licensed in California and maintains a Bests Financial Size Category of[X Surety holds a Certificate of Authority from the United States Department of the Treasury as an acceptable reinsuring company pursuant to Department of Circular 570 as published in the Federal Register.The surely has a Bests insurance rating of not less than A The liability of the Surety for the payment of the principal amount accrues immediately upon the default of the Principal,and without demand or notice pursuant to Calffomia Civil Code Section 2807. Surety hereby waives any defense based on or arising out of any defense of the Principal other than payment in full of the principal amount including, without limitation, a defense based on or arising out of the disability of the Principal,the unenforceability of the principal obligation,or any part thereof,or any change,renewal or acceleration of the terms of the principal obligation.Further,said surety shall waive any right to require the Obligee to proceed against the Principal or pursue any other remedy in the Obligee's power.Further,Surety shall have no right of subrogation and shall waive all presentments, demands for performance, notices of protest, notices of dishonor and notices of the acceptance of the Surety Agreement. Signed,sealed and dated this 21st day of March,2005. SOUTHERN CAUFORNIA WATER COMPANY SAFECO INSURANCE COMPANY OF AMERICA (Principal) (Surety) By. By. ` J A.Co", omey In Fact C` A Os POWER SAFECO INSURANCE COMPANY OF AMERICA w7 /`� GENERAL INSURANCE COMPANY OF AMERICA ► OF ATTORNEY HOME OFFICE: SAFECO PLAZA SEATTLE,WASHINGTON 98185 No. 9085 KNOW ALL BY THESE PRESENTS: That SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA, each a Washington corporation, does each hereby appoint **********JEFFREY STRASSNER;CHRISTINA TURMAN, KRISTINE MENDEZ;CESAR F.JAVEER;ADRIANA VALENZUELA;JORGE A.CORREA;NATALIE K. TROFIMOFF,TENZER V.CUNNINGHAM;Los Angeles, its true and lawful attomey(s)-in-facl, with full authority to execute on its behalf fidelity and surety bonds or undertakings and other documents of a similar character issued In the course of its business,and to bind the respective company thereby. IN WITNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA have each executed and attested these presents this 3rd day of May 2004 G1 CHRISTINE MEAD,SECRETARY MIKE MCGAVICK,PRESIDENT CERTIFICATE Extract from the By-Laws of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA: "Article V, Section 13_-FIDELITY AND SURETY BONDS...the President,any Vice President,the Secretary,and any Assistant Vice President appointed for that purpose by the officer in charge of surety operations, shall each have authority to appoint individuals as attorneys-in-fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other documents of similar character issued by the company in the course of its business...On any instrument making or evidencing such appointment,the signatures may be affixed by facsimile. On any instrument conferring such authority or on any bond or undertaking of the company, the seal, or a facsimile thereof, may be impressed or affixed or in any other manner reproduced; provided, however,that the seal shall not be necessary to the validity of any such instrument or undertaking." Extract from a Resolution of the Board of Directors of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA adopted July 28, 1970. "On any certificate executed by the Secretary or an assistant secretary of the Company setting out, (i) The provisions of Article V,Section 13 of the By-Laws,and (ii) A copy of the power-of-attomey appointment,executed pursuant thereto,and (iii) Certifying that said power-of-attorney appointment is in full force and effect, the signature of the certifying officer may be by facsimile,and the seal of the Company may be a facsimile thereof." I, Christine Mead, Secretary of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA,do hereby certify that the foregoing extracts of the By-Laws and of a Resolution of the Board of Directors of these corporations,and of a Power of Attorney issued pursuant thereto, are true and correct,and that both the By-Laws,the Resolution and the Power of Attorney are still in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal of said corporation this day of MAR 212005 v �o9yr E cQA�p CORPORATE SEAL SEAL T ,r 1953 '.� f s2% � 4f 1Vii5t �0(Yyk� CHRISTINE MEAD,SECRETARY S-09741SAEF 2101 ®A registered trademark of SAFECO Corporation 0510412004 POF CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Los Angeles On MAR 212005 before me, Natalie K. Trofimoff. Notary Public personally appeared Jorge_A. Correa personally known to me -OR- ❑ proved to me on the basis of satisfactory evidence the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that NATALIE K. TROFIMOFF he/she/they executed the same in his/her/their Commission 4 1410124 authorized capacity(ies), and that by his/her/their Z ,»ffi Notary Public - California signature(s) on the instrument the person(s), Or the Los Angeles County My Comm,Expires Apr 8,J2007entity upon behalf of which the person(s) acted, MYComm.Expires Apr S, executed the instrument. Wl N SS my h d d o#il tat s y Notary Public Seal SIGNATURE OF OPTIONAL Though the data below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. DESCRIPTION OF ATTACHED DOCUMENT: TITLE OR TYPE OF DOCUMENT: DOCUMENT DATE: CAPACITY(IES) CLAIMED BY SIGNER(S) Signer's Name: Signer's Name ❑ INDIVIDUAL ❑INDIVIDUAL ❑CORPORATE OFFICER []CORPORATE OFFICER Titles) Titles) ❑ PARTNER(S)❑LIMITED ❑ GENERAL ❑ PARTNER(S)❑LIMITED ❑ GENERAL ® ATTORNEY-IN-FACT ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ GUARDIANICONSERVATOR ❑ OTHER: ❑ OTHER: Signer is representing: Signer is representing: NAME OF PERSON(S)OR ENTITY(IES) NAME OF PERSON(S)OR ENTITY(IES) f IMPORTANT NOTICE TO SURETY BOND CUSTOMERS REGARDING THE TERRORISM RISK INSURANCE ACT OF 2002 As a surety bond customer of one of the SAFECO insurance companies (SAFECO Insurance Company of America, General Insurance Company of Americas, First National Insurance Company, American States Insurance Company or American Economy Insurance Company), it is our duty to notify you that the Terrorism Risk Insurance Act of 2002 extends to "surety insurance", This means that under certain circumstances, we may be eligible for reimbursement of certain surety bond losses by the United States government under a formula established by this Act. Under this formula, the United States government pays 90% of losses caused by certified acts of terrorism that exceed a statutorily established deductible to be paid by the insurance company providing the bond. The Act also establishes a $100 billion cap for the total of all losses to be paid by ali insurers for certified acts of terrorism. Losses on some or all of your bonds may be subject to this cap. This notice does not modify any of the existing terms and conditions of this bond, the underlying agreement guaranteed by this bond, any statutes governing the terms of this bond, or any generally applicable rules of law. At this time, there is no premium charge resulting from this Act. 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; 1 y (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)). (e) "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; (j) "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" shal I 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 terra 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, 2 Remove, or Remedy, as those terms are defined in Sections 101(23), 101(24) and 101(25) of CERCLA j42 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 a non-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 law 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 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 Awl 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 (11/1,D) 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, ;naps, 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 Califomia Constitution as that section existed prior to the amendment thereof adopted on October 11, 1911, shall be deemed abandoned in the additional territory. 4 0 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. lndemnity. 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 5 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 S. Emergency 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- 6 i SECTION 10. Facility Location Maps. 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 reap or maps showing the location and size of all such additional and/or abandoned Facilities as of that date. SECTION I l. 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. Dania a to Street or Praperty. 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- 7 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(c) 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 safety 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 Bond. Grantee shall, within ten (10) days after the pasting 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 least 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. 8 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 mail 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 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 , > P Po p 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 shall cause same to be published in a newspaper of general circulation in the.rnanner provided by law- PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 7 t h day of March 2005: ATTEST: APPROVED AS TO FORM: ity Cleric "ttoy Z!7AY REVIEWED AND APPROVED: INITIATED AND PROVED. City Ad inistrator Director of P jc Works 10 Ord.No.3701 STATE OF CALIFORNIA } COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) .1, 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 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 [,Joan L.Flynn,CITY CLERK of the City of Huntington Beath and ex-0fTcio Clerk of The City Council,do hereby certify that a synapsis of this ordinance has been published in The Huntington Beach Fountain Valley Independent on March 17,2005_ In accordance with The City Chatter of said City Joan L. Flynn,Cily Clerk ity Clerk and ex-off Clerk Deputy City Clerk of the City Council of the City of Huntington Beach, California (12) March 7, 2005 - Council/Agency Minutes - Page 12 City Administrator Penny Culbreth-Graft gave a PowerPoint report highlighting proposed changes to the MOU. Discussion followed amongst Council and staff relative to holiday pay adjustments, the methodology used to determine the actual cost of the MOU adjustments, the format of the report highlighting changes to the MOU, and the number of employees covered by this agreement. A motion was made by Sullivan, second Cook to adopt Resolution No. 2005-17— "A Resolution of the City Council of the City of Huntington Beach Approving and Implementing the Memorandum of Understanding between the Huntington Beach Management Employees'Organization (MEO) and the City of Huntington Beach for 12120103 through 12119106." The motion carried by the following roll call vote: AYES: Hansen, Coerper, Sullivan, Hardy, Green, Bohr, Cook NOES: None ABSENT: None (City Council) Continued from February 22, 2005 -Approved Franchise Agreement to Southern California Water Company Regarding Construction of a Water Pipeline and Authorized Mayor and City Clerk to Sign Agreement Subject to the Requirement that City Attorney and Assistant Administrator are Authorized to Select an Arbitrator -Adopted Ordinance No. 3701 (600.45) City Attorney Jennifer McGrath reported regarding her Late Communication dated March 7, 2005 titled Late Communication— Item G-la on March 7, 2005 City Council Agenda Regarding Granting Franchise to Southern California Water Company and Related Construction Agreement. Mayor Pro Tern Sullivan stated his opposition to the recommended action. City Clerk Joan L. Flynn restated for the record the Recommended Action revised per Late Communication dated March 7, 2005. A motion was made by Coerper, second Bohr to: 1. Approve an Agreement entitled: An Agreement Between the City of Huntington Beach and Southern California Water Company Regarding Construction of a Water Pipeline and authorize the Mayor and City Clerk to sign the agreement, subject to the requirement that the City Attorney and the Assistant City Administrator are authorized to select an arbitrator in agreement with SCWC. and 2. After the City Clerk reads by title, adopt by roll call vote, Ordinance No. 3701 — "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." (Approved for introduction on February 22, 2005.) The motion carried by the following roil tail vote: AYES: Hansen, Coerper, Hardy, Green, Bohr, Cook NOES: Sullivan ABSENT: None CITY OF HUNTINGTON BEA MEETING DATE: February 22, 2005 DEPARTMENT ID NUMBER: CA 05-07 Council/Agency Meeting Held: Deferred/Continued to:&1t2z&--_2) 0/7-/by )(App oved enied C rk' to ign lm y Council Meeting Date: February 22, 2005 T Departme Number: CA 05-07 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR and CITYAqOYNCIL MEMBERS ` SUBMITTED BY: PE LOPE LB E -GRA T, CITY ADMINISTRATOR PREPARED BY: JENNIFER McGRAT . y Attorney PAUL EMERY, Acting Director of Public Works SUBJECT: Adopt An Ordinance Granting a Water Pipeline Franchise t Southern California Water Company, and Approve An Agreement Regarding the Construction of the Pipeline. --S , ','1 O Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachments) Statement of Issue: Staff recommends that the City Council introduce an Ordinance granting a water pipeline franchise to Southern California Water Company, and approve an Agreement regarding the construction of the pipeline. Funding Source: None Recommended Action: Motion to.- 1- Open the public hearing, take testimony and close the public hearing. 2. Introduce Ordinance No. -3'1 0\ entitled: 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. 3. Approve and authorize the Mayor to execute an Agreement entitled: An Agreement Between The City Of Huntington Beach and Southern California Water Company Regarding Construction Of A Water Pipeline. Alternative Actions : Do not adopt the Ordinance and Agreement. G:IRCA120051SCWC 2-22.doc 2`!� 2/712005 4:56 PM �9 ` REQUEST FOR COUNCIL ACTION MEETING DATE: February 22, 2006 DEPARTMENT ID NUMBER: CA 05-07 Background: On July 23, 2002, the County of Orange recommended that the Coastal Commission approve Hearthside Homes' 378 single-family unit development on the upper bench of the Balsa Chica Mesa. The Coastal Commission rejected the project on October 13, 2004, although it is expected to reconsider it in the next few months. In order to build this project, Hearthside contracted with Southern California Water Company ("SCWC") to provide water service. SCWC is a water utility regulated by the California Public Utilities Commission ("CPUC"). Consequently, SCWC applied in November 1998 to the CPUC for authority to build the water pipeline to serve the development. The CPUC approved the pipeline in October 2000. With the CPUC approval in hand, on February 1, 2002, SCWC applied.to the City for a franchise to install the pipeline underneath Bolsa Chica Road. When the City deferred consideration of the franchise application, on January 23, 2003, SCWC sued to compel the City to grant a franchise: Southem Califomia Water Company v. City of Huntington Beach, et al., OCSC Case No. 03CCO2021. Based upon the CPUC approval, in December 2003, the Orange County Superior Court ordered the City to issue a franchise. City Staff then negotiated a franchise ordinance and settlement of the litigation. Three separate documents have been completed: Franchise Ordinance, Construction Agreement and Settlement Agreement. The Settlement Agreement was approved by the City Council at its January 3, 2005 closed session. It provides for a $126,000 payment to the City for settling both suits, due if and when the City Council approves the Franchise Ordinance and the Construction Agreement. The Settlement Agreement still permits the Council to exercise its full discretion to reject or modify the Franchise or Construction Agreement. However, if either agreement is rejected, or modified in a manner SCWC finds unacceptable, the Settlement Agreement is null and void. SCWC may then proceed to condemn a pipeline easement in lieu of a franchise. Analysis: 1. The Franchise Ordinance. The Franchise Ordinance is modeled after standard water franchises, and is very similar to the franchise agreement the City of Los Alamitos granted SCWC in 2000 to serve that City. It also resembles franchises Huntington Beach has granted Southern California Gas Company and Southern California Edison. The Franchise is for a fifteen-year term, and will yield franchise fee payments of less than $3,000 per year. 2. Construction Agreement. The Construction Agreement contains the conditions designed to mitigate the effect of pipeline construction on traffic on Bolsa Chica Road. Briefly, these conditions are as follows: 1. Construction will be open trench in the number 1, northbound lane, except that the intersections at Warner, Heil, Edinger, McFadden and Rancho Road will be bored. GARCA120051SCWC 2-22.doc 2/412005 3:09 PM REQUEST FOR COUNCIL ACTION MEETING DATE: February 22, 2006 DEPARTMENT ID NUMBER: CA 05-07 2. Hours of construction and lane closures on Bolsa Chica are limited to 9:00 a.m. to 4:00 p.m., except that work from Argosy to Rancho will be performed at night, from 7:00 p.m. to 5:00 a.m. 3. Warner will remain open at all times. 4. The maximum length of lane closure on Bolsa Chica shall be one-quarter mile in each direction, excluding lane reduction tapering. At a minimum there will be two northbound and three southbound lanes from Rancho Road to Warner Avenue, and one northbound and one southbound lane from Los Patos to Warner Avenue. 5. Instead of the standard "T" patch repaving, SCWC shall grind and overlay the full width of the lane excavated, to a maximum of 12 feet in roadway width for any given section of roadway. 6. Pursuant to the encroachment permit, the Public Works Director will establish a construction schedule. Violating the schedule results in a fine of$800 per lane closed, per day. 7. Any disputes regarding enforcement of the Construction Agreement, specifically the reasonableness of the construction schedule and the imposition of liquidated damages, shall be submitted to binding arbitration. SCWC shall pay for the cost of the arbitrator. It is recommended the City Council introduce the Ordinance and approve the Construction Agreement. Environmental Status: The CPUC approved the EIR for this project as part of its Decision No. 00-129-029 on October 5, 2000. Attachment(s1: NumberCity Clerk's Page Description 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 2. An Agreement Between The City Of Huntington Beach and Southern California Water Company Regarding Construction Of A Water Pipeline. GARCA1200MSCWC 2-22,doc 214/2005 3:09 PM L CITY OF HUNTINGTON BEACH I tri �t • � 'o TO: MAYOR JILL HARDY AND MEMBERS OF THE CITY COUNCIL FROM: JENNIFER McGRATH,City Attorney _J DATE: March 7,2005 rn n SUBJECT: Late Communication-Item G-la On March 7,2005 City CouncW � Agenda Regarding Granting Pipeline Franchise To Southern C40riva Water Company And Related Construction Agreement We reported to you last Friday that we had selected an arbitrator to hear any disputes with SCWC regarding the Construction Agreement. After further consideration, Staff has determined that the arbitrator that we initially had agreed to with SCWC should not be selected. Consequently, it is my recommendation that the City Council: (1) Adopt the Franchise Ordinance, and (2) Approve the Construction Agreement and authorize the Mayer and City Clerk to sign it, subject to the requirement that the City Attorney and the Assistant City Administrator are authorized to select an arbitrator in agreement with SCWC. We recommend that this item not be continued,principally because there are Court hearings set on March 21, 2005 and April 8,2005. Consequently,any further extensiow of time would necessitate Court approval, which may be difficult to obtain. JENNIFER McGRATH City Attorney C6 A,1 U-,J 0 A) G.'TLEADNSouthem CA WWcACmTespondencell ale Cor=.Memo 03.doc ATTACHMENT # 1 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 an objections to the granting f t y � g g o he 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; I (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)). (e) "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, 2 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 a non-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 terra 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 law 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 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. 4 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 5 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 Assi nment 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. Emergency 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. 6 SECTION 10_ Facility Location Maps. 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 Pro rtrty_ 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. 7 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(c) shall survive termination of this franchise. SECTION 14. Grantee's Obligations Upgn Exl2iration, 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 Bond. 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 least 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. 8 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 mail 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 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, phases, 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 shall 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 7t:h day of March 2005. ATTEST: APPROVED AS TO FORM: 0 ity Clerk City Atto ey REVIEWED AND APPROVED: fNITIAT D AND PROVED: City Adi inistrator Director of P is Works 10 Ord. No. 3701 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) 1, 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 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-ofticio 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 L. Flynn,CityCIerk it, Clerk and ex-officIV Clerk Deputy City Clerk of the City Council of the City of Huntington Beach, California CONSTRUCTION PLANS FOR THE ENO F SEGMENT 1 BOLSA CHICA 18" DOMESTIC WATER TRANSMISSION PIPELINEMCI SEGMENT 1 wrrt r a...e w rrA., l.rrw• wlwtl.r 18•WATER Los MAWFOS TORBA TAANSMtSSION UHDA 18-WATEA MAIN MAIN r= SEGMENT3 ; GARDEN PROJECT LOCATION AN Wf1M GAIIDEN GR04E ORINGE :> i WESTMINSTEIIsm i BEACH HU ON S 18'WATER MAIN �•"°^• 8 i f SEAi SEGMENT2- ' 4 BEACHsT xp"m ,b.. - IRVINE` � iAI2 • 171. FOREST TM wprl =' "'� ae1•a 1 11frWATERMAIN : SJ4N JUAhI _ 3EOMENTENf 1 WISTRANO ............ q.wts�l rcrroobt.kw¢ SEAlBEACH ltiN4G7 13 YiCINTTYMAP BLACH CREME �Q � •nellu,a,af RMWWS INDEX ' 990"m- ool.l�voolrwf i 71 Mu DIMT.wm 11107 lam OO&&role 1 n ownryx+nr 10M "04711 .UOIND 1a91[+1111o1 S r 1 11 ri 1m PAN!/1[ -ILOY s1A 11.0147/0 SK 1NOLW 1rr�rrA4lLO _a Wm TON • L7 uF LAWs IL[ .Flar fkL t0+00.00 ro 9%L1+LLm B Amu GLOI$1.+1Ldl a&f7«aom l0 sm 90l00A1 .t 6 L1 Ills•GWA fl,_"Kw sm 7L4WAo ro FA 1 ! L u ION and sr.-1Lw Rt*.ao.W W m 0.0em L 7 18 emu a1u fr..7LOr Su a."IP f7A la mm yhI ` L u WU VWA fr.-"*m VA.uwe.a/ro f7A f"K= OUV00trM 11 WMMiomuw! 1 L7 1L111 OWA V.-1 f1A tl1"70 SIX 7L+00�00 t0 V LOILI EMGA{l.-/Lull M 714oL.W 10 M.074koom LOCATION MAP 11 u old n.-ILOr trL n+Wm ro 1ry 100igL00 11 L10 Lo111 011G A 1 P&10.0..00 W fTA ll"AI 0 j 13 L1t lIR%C-*h$1,.111011 QL 11HWm 10 su 1u+00m L71 I. L12 fd31 0WA It. -7LCr VA 11L�pp.W 10 ALL 1]400,00 tl usof No o"GLCL fi,-7LW S1+L"0#00m Wroom 141.la"k 1N+aaao _rp 17 Lq 10131 C11N n.-mm f1A 1/L+pp.00 ro!rL klf+f601 �� /� pf+0[rlrsue .. C1TY OF HUNTINGTON BEACH ii iii fwm ply frw 1b+Wm ro 7rL 17aaW,e/ lnrowmA4DLr [,gAMBl 26-ID tt+1..M.-N lllMrWL`AL'mN1LlL h7rt SMELT to,J slNldll LAt1rlLIM rrAl[R iorLA -�r��r KEY MAP .�,•yL wu.na 'cif erri� P110UECT140 - GE-MetroPointe ALE> T18' WATE R NBMI$SIO M T1E13L PER IDEHQMES SCILE: • ATTACHMENT #2 AN AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND SOUTHERN CALIFORNIA WATER COMPANY REGARDING CONSTRUCTION OF A WATER PIPELINE WHEREAS, on October 5, 2000, Southern California Water Company, a California corporation ("SCWC'), pursuant to Decision No. 00-10-029 of the California Public Utilities Commission ("CPUC'), obtained a Certificate of Public Convenience and Necessity ("CPCN") to extend water service to a development on the Bolsa Chica Mesa; and WHEREAS, SCWC applied to the City on February 1, 2002, for a pipeline franchise pursuant to the CPCN; and WHEREAS, a dispute has arisen between the City and SCWC regarding the terms of the franchise and the conditions under which SCWC will initially construct and install the pipeline and related appurtenances; and WHEREAS, in order to resolve the dispute, the City and SCWC have agreed that prior to issuing a franchise to SCWC, the City and SCWC shall enter into this Agreement. This Agreement shall be null and void if the City does not issue a franchise in substantially the form of Exhibit A hereto (the"Franchise'). NOW, THEREFORE, the City Council of the City of Huntington Beach and SCWC agree as follows: Section 1. Encroachment Permit. SCWC shall not begin constructing the Facilities authorized by the Franchise without first obtaining an encroachment permit from the City Director of Public Works pursuant to Chapter 12.13 of the Municipal Code. As part of the encroachment permit application, SCWC shall submit to the Director detailed engineering and traffic control plans, including site-specific hours of construction, prepared under the supervision of a professional civil engineer or traffic engineer licensed to practice in the State of California. The application shall include a construction schedule identifying reasonable time periods for the completion of each stage of construction. If SCWC applies for the encroachment permit within 365 days of the effective date of the Franchise, SCWC shall pay any permit and inspection fees required by the terms of City Council Resolution No. 2003- 64, as amended through December 1, 2004. If SCWC applies for the encroachment permit more than 365 days after the effective date of the Franchise, SCWC shall pay any permit and inspection fees required by the terms of City Council Resolution No. 2003-64, as it exists at the time SCWC applies. Upon submission of such plans and payment of such fees, the Director shall issue SCWC an encroachment permit, which permit shall constitute the sole encroachment permit necessary to construct the pipeline including a construction schedule. Such encroachment permit shall be consistent with this Agreement, shall not discriminate against SCWC, and shall include such terms and conditions that the Director may reasonably establish which are not in conflict with or inconsistent with this Agreement or the paramount authority of the State of California. 1 Upon request, the Director shall grant reasonable time extensions to the construction schedule or modifications to the other terms and conditions due to changed conditions, inclement weather or inspection delays. Such requests may be made at any time during construction of the Facilities. Section 2. Liquidated Damages. -(a) The Director may levy, and SCWC shall pay liquidated damages of Eight Hundred Dollars ($$00.00) per 1,320 feet of lane closure per day, or any portion thereof that exceeds without good cause the lane closures permitted under the construction schedule submitted by SCWC or any extensions granted by the Director pursuant to Section 1. (b) As a condition to the issuance of the encroachment permit, SCWC shall file with the City Clerk of City a corporate surety bond in the sum of Fifty Thousand Dollars ($50,000.00) to secure SCWC's obligations hereunder. In the event SCWC fails to pay the amount of any liquidated damages owed to City within thirty days of receiving written notification from the City or, if SCWC files an appeal, within the timeframe established by Section 9, the City may recover from the principal and sureties upon the bond the amount of liquidated damages owed by SCWC. Section 3. Construction Requirements. (a) Construction of the Facilities shall be accomplished pursuant to the terms of this Agreement, the encroachment permit and Applicable Law. (b) SCWC shall provide the City a telephone contact number, and staff it during regular business hours, to enable the City to report any concerns regarding Street work. After business hours such calls will be routed to an on-call supervisor. In the event that the City reports any concerns to SCWC, SCWC shall use its best efforts to respond in such time as the Director reasonably establishes, but SCWC shall not be required by the City to deviate from the terms of construction set forth in this Agreement and the encroachment permit. (c) SCWC shall use directional boring or trenchless construction on the segments of the pipeline traveling through the intersections at Warner,Heil, Flinger, McFadden and Rancho Road. (d) Every working day during construction, SCWC shall notify the designated City staff member of the location of the next day's construction activities. The number of concurrent construction locations may be limited by the City. (e) When repairing Street work, SCWC shall grind and overlay the full width of the primary lane which has been excavated or otherwise damaged. -In no case, shall SCWC be required to grind and overlay more than 12 feet in roadway width for any given section of roadway. (f) SCWC will provide at its sole cost such shoring or other support as shall be reasonably required to support, maintain, and protect City Property, any storm drain or sewer constructed by the County of Orange, or any similar facilities by any other governmental agencies, from damages during construction of the Facilities. 2 (g) The bearing area for all thrust block restraints shall be constructed against undisturbed earth and shall not impact the existing City water pipelines. Bearing area calculations shall be prepared by a licensed civil engineer and submitted to the City for review and approval. The civil engineer shall verify that the existing City water pipelines are not affected by any surcharge loading caused by the Facilities. All mechanical restraints for the Facilities shall be identified on the construction plans. (h) During the excavation and construction of the Facilities, SCWC shall use its best efforts to maintain the condition of plant material on the landscaped medians. At the conclusion of construction, SCWC shall replace in-kind any dead or damaged plant material, clean any valves, lines and heads that are plugged by materials entering the lines due to the cutting/breaking of lines caused by SCWC, and otherwise restore the medians to their condition at the beginning of construction. (i) SCWC's construction activities shall be confined to the hours between 9:00 a.m. and 4:00 p.m., Monday through Friday, with the exception that Balsa Chica, north of Argosy shall be limited to 7:00 p.m. to 5:00 a.m. All traffic lanes shall be reopened for traffic outside of the identified lane closure periods. (j) Parking prohibitions on all roadways, where parking is currently permitted, shall be confined to the hours between 7:00 a.m. and 5:00 p.m. or to the hours of 5:00 p.m. to 6:00 a.m. in the case of nighttime construction for Bolsa Chica,north of Argosy. i . (k) Street closures will not be allowed during construction except as permitted by the Director, who shall not unreasonably prohibit them. The maximum length of any lane closure activity on Bolsa Chica Street shall be one-quarter mile in each direction, excluding lane reduction tapering. The following minimum lane requirements shall be provided at all times during construction, subject to time of day restrictions as established above. These lane requirements are based on the alignment using the number 1 northbound lane of Bolsa Chica Street. Any modification to this alignment may result in the minimum lane requirements being modified during construction of the pipeline. Arterial street closures shall be limited as follows: (i) Bolsa Chica Street — Rancho Road to Warner Avenue: Maintain two northbound through travel lanes and three southbound lanes in each direction during'work hours. Bolsa Chica Street— Warner Avenue to Los Patos: Maintain one southbound travel lane and one northbound travel lane during working hours. Warner Avenue: No lane closures at any time. (ii) Trenchless intersections: As provided by Section 3(c), construction at the following intersections shall use directional boring or trenchless construction. Should lane closures still be necessary at these intersections, they shall be limited as follows: 3 Rancho Road at Bolsa Chica Street: Maintain one eastbound through travel lane, one westbound left turn lane and one westbound right turn lane during working hours. McFadden Avenue at Bolsa Chica Street: Maintain one eastbound through travel lane and one westbound left b right turn lane during working hours, in addition to required through lanes on Bolsa Chica Street. Edinger Avenue at Bolsa Chica Street: Maintain one eastbound through travel lane and one westbound left turn lane during working hours, in addition to required through lanes on Bolsa Chica Street. Heil Avenue at Bolsa Chica Street: Maintain one eastbound through travel lane and one westbound left turn lane during working hours, in addition to required through lanes on Bolsa Chica Street. I Warner Avenue at Bolsa Chica Street: .Maintain one eastbound through travel lane, one eastbound left turn lane, one westbound through travel lane and one westbound left turn lane during working hours, in addition to { required through lanes on Bolsa Chica Street. i (iii) During construction of the Facilities, lane closures of local streets shall allow one two-way travel lane with flagger control. (iv) Where traffic signal detection is impacted by the construction activities, signal control for the impacted lanes shall be placed on recall. All modifications to existing signal controls will be coordinated with the City Engineer. If traffic signal detection is impacted longer than ten working days, the City may require video detection be furnished and installed by the contractor. (1) Loop detectors shall be restored to full operation within 10 days of completion of an intersection. Under no circumstances shall detectors be out of operation at more than one intersection at the same time. (m) Prior to construction, SCWC shall contact the City's traffic signal maintenance crew to coordinate the installation of the video detection and the replacement of traffic signal detection on an as-needed basis as is reasonably detennined by the Director. (n) K-rail may be used to control traffic on an as needed basis. Section 4. Completion Statement. Upon the completion of the construction of the Facilities, SCWC shall submit as-built drawings and a statement to the Director identifying the permit or permits issued by the Director, the total length of, material and diameter of the pipeline, and any other Facility actually constructed. 4 4 Section 5. Dama ee to Property. SCWC shall promptly repair any damage it causes to City property while constructing the Facilities, at its sole cost and expense to as good a condition as it was before such damage occurred. If SCWC, within thirty (30) days after receipt of written notice from the City instructing it to repair such damage, fails to commence with such repairs, or thereafter fails to diligently complete them, then the City immediately may do all work reasonably necessary to complete the repairs at the cost and expense of SCWC, which cost and expense SCWC agrees to pay upon demand. The amount so chargeable shall be the reasonable or direct cost of such work (whichever is lower) plus the current rate of overhead being charged by the City for reimbursable work. The Director may establish a repair period shorter than 30 days if public safety so demands. If such damage constitutes an immediate danger to the public health or safety requiring the immediate repair thereof, the City, without notice, may repair such damage and SCWC agrees to pay all reasonable costs the City incurs. Section 6. Changes by Mutual Agreement. Any of the terms of this Agreement may be changed upon the mutual consent and written agreement of the Director and SCWC. Section 7. Insurance. In addition to the insurance required from SCWC pursuant to the Franchise, SCWC shall cause the City to be named as an additional insured on all insurance policies of SCWC's general contractor. In addition, the City shall be named as an additional insured on all insurance policies of SCWC's subcontractors where SCWC also is named as an additional insured. Section 8. Definitions. All capitalized terms used herein shall have the same meaning as in the Ordinance granting SCWC its pipeline franchise. Section 9. Dispute Resolution. (a) In the event SCWC disagrees with any City decision related to the obligations and duties imposed by Sections 1-6 of this Agreement (including but not limited to the terms of the encroachment permit, the reasonableness of the construction schedule and the imposition of liquidated damages), SCWC may appeal any such decision by filing a notice of appeal with Thomas W. Lloyd, P.E. (the "Hearing Officer") within 30 days of receiving written notice of the City's decision. No other disputes relating to this Agreement, the Franchise Ordinance or the Settlement Agreement shall be subject to arbitration of any kind unless the parties voluntarily agree to submit such dispute to arbitration. The remedies SCWC and the City may seek include, without limitation, specific performance, injunctive relief, damages,rescission and declaratory relief. (b) After receiving notice of the appeal, the Hearing Officer shall promptly hold an evidentiary hearing and issue a written determination resolving the dispute. SCWC shall bear the cost of any fees charged by the Hearing Officer related to the hearing. Each party shall bear its own costs and fees in preparing and presenting their case to the Hearing Officer. The decision of the 5 Hearing Officer shall be final and binding. There shall be no right of appeal, except as provided under California Code of Civil Procedure §§ 1285.8 - 1287. (c) With respect to an appeal of the imposition of liquidated damages, SCWC shall pay the City any amount the Hearing Officer determines is owed to City hereunder within 30 days after receipt of the Hearing Officer's written determination. IN WITNESS WHEREOF, the Parties have executed this Agreement as of 11 QOQ,1' to be effective as of the effective date of the Franchise. SOUTHERN CALIFORNIA WATER COMPANY, CITY OF HUNTINGTON BEACH,a municipal a California corporation corporation of Lihe StajSj9j.CALifbrnta By: &404 M'SOMMLO print name i le f QZ IT circle one) print resident AND �} APPROVED AS TO FORM: By: !{06z"t` `�� ©beAr - RacJ�S print name b S-City Attorney S I� TS: (circle one) Secretary Izief Financial ��G Office sst. Secretary-Treasurer REVIEWED AND APPROVED: INITIAT D A PROVED: v'� LLL City Administrator Director of lic Works 6 RCA ROUTING SHEET INITIATING DEPARTMENT: City Attorney SUBJECT: Adopt An Ordinance Granting a Water Pipeline Franchise to Southern California Water Company, and Approve An Agreement Regarding the Construction of the Pipeline. COUNCIL MEETING DATE: February 22, 2005 STTU'S- Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Attached Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attomeyj Not Applicable Subleases, Third Party Agreements, etc. (Approved as to form b City Attome Not Applicable Certificates of Insurance (Approved by the Cr Attomey) Not A plicable Financial Impact Statement Unbud et,.over$5,000 Not Applicable Bonds If applicable) Not Applicable Staff Report If applicable) Not Applicable Commission, Board or Committee Report If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Aeplicable C Owl ISS G �►t`T HII ITS IElE1I ITURNEC F�OI1NARDEa Administrative Staff Assistant City Administrator Initial City Administrator Initial City Clerk LX 'LA �'t ?N F F' �T� f= iT€M: Only)(Below Space For City Clerk's Use RCA Author: S. Field CITY OF HUNTINGTON BEACH InteLDepartment Communicatim TO: MAYOR JILL HARDY AND MEMBERS OF THE CITY COUNCIL o---q-` FROM: JENNIFER McGRATH,City Attorney w` CDr,. DATE: March 3,2005 C SUBJECT: Late Communication—Item G-la On March 7,2005 City Counci � Agenda Regarding Granting Pipeline Franchise To Southern Ca&oruia Water Company And Related Construction Agreement The City Council continued action on the Construction Agreement between the City and Southern California Water Company from the February 22 to the March 7, 2005 meeting because the parties had not yet selected the arbitrator. The attorneys have now selected Thomas W. Lloyd as the arbitrator. A copy of Mr. Lloyd's resume is attached,along with the agreement where his name appears at page 5. While we do not yet have the signature of Southern California Water Company on the - Agreement,that is a formality. We do have the enclosed letter from the SCWC's attorney indicating"that the Water Company will sign the agreement in its present farm. It is recommended that the City Council approve the Agreement and authorize the Mayor and City Clerk to sign it. JENNIFER McGRATH City Attorney Enclosures Thomas W. Lloyd Resume Construction Agreement 3/4/05 Letter from SCWC's Attorney � f G-TLEAD1Suuthem CA WaW\CormspondenceU.Ne Comm.Memo#2.doc MAR-04-2005 FRI 10:25 AM PCC I FAX NO. 916 638 5124 P. 02 THOMAS W. LLOYD, P.E. Position: Executive Consultant Education: B.S. Civil Engineering, Rensselaer Polytechnic Institute, 1964 Experience: PCCr Sacramento Los Angeles. San Francisco Bay Area,_Las Vegas Responsible for preparing and managing contract dispute analyses for law firms, owners, contractors, architects, engineers and insurance companies. Includes extensive involvement in disputes on various construction projects, including buildings, educational facilities, hydroelectric and nuclear power projects, prisons, art and cultural facilities, water treatment plants, hospitals, parking garages, shopping centers and other commercial facilities, Active in preparing and giving seminars for owners and contractors. Provides expert witness testimony for depositions, arbitrations, mediations and litigation. (1987-present) Duncan & Weber. Inc., Littleton, Colorado Prepared and managed contract disputes for contractors, owners, and law firms. Projects included power plants, buildings, dams, industrial facilities, mining facilities, mass transit systems, sewage treatment plants and hotels. Provided expert witness testimony for depositions, arbitrations, and litigation. (1980-1987) Ke11ogg Corporation, Littleton, Colorado Prepared claims for industrial, nuclear and fossil power, sewage treatment, utility and commercial projects. Clients included contractors, owners and insurance firms, (1978-1980) Dravo Corporation. kittsburah, Pennsylvania Contract Administrator and Cost Engineer Supervisor -- Responsible for the contract administration for many projects. Prepared and assisted in negotiation of claims and change orders. Responsible for setting up effective cost keeping systems as well as accumulating and monitoring project costs from the field for all projects. Provided estimators and division management with cost analyses and production data for active and completed projects. (1977- 1978) Project Engineer -- Responsible for all required field engineering, including project planning and scheduling, design and selection of forming and support systems for the civil construction of the Shoreham Nuclear Power Station, ]guilt for Long Island Lighting Company, Supervised over 50 engineering personnel. (1972-1977) MAR-04--2005 FRI 10:25 AM PCCI FAX K0. 916 638 5124 P. 03 Engineer/Estimator - Performed engineering design work and estimating for several projects. Prepared a licensing manual for nuclear piping work complying with ASME Section III requirements. Also, served as Dravo's home office engineer for the Wallace Dam pumped storage project. (1971-1972) ' Chief Field Office Engineer - Responsible for coordinating and directing all office engineering work for civil work at the Shoreham Nuclear Power Station. Supervised engineers and draftsmen engaged in design work and in the preparation of feasibility studies. (1970-1971) Field Cost Engineer/Project Engineer - Prepared cost comparisons, design of forming systems, preparation and monitoring of schedule, installation of machinery, and field engineering responsibilities for the removal and installation of a cofferdam. Work performed on the Jones Bluff Lock and Dam on the Alabama River. (1968-1970) Office Engineer -- Performed design work for forming systems and cofferdams for several projects. Worked with estimating department. (1968) Field Engineer Responsible for engineering, surveying, coordination and inspection for the construction of a flyash retention dike for the American Electric Power Company at •- Lawrenceburg, Indiana. (1967) Office/Field Engineer - Worked as office engineer and field engineer on Lock and Dam No. 13 on the Arkansas River, (1967) Office Engineer - Worked with the estimating department on many projects. (1964 and 196 6) Military service: Second/First Lieutenant- Served in the U.S. Army Corps of Engineers in Vietnam and the United States. (1964-1966) Professional Certifications and Activities: Registered Professional Engineer Listed in ABA Register of Expert Witnesses Commercial Panels of,Arbitrators (AAA) Publications: Substructure and Structural Concrete Work for Nuclear Power Plants, Pennsylvania State University, August 1976. T.W. Lloyd and J,J. Smith, co- authors. Later published by John Wiley & Sons in Planning, Engineering and -- Construction of Electric Power Generation Fatalities. THOMAS W. LLOYD AN AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND SOUTHERN CALIFORNIA WATER COMPANY REGARDING CONSTRUCTION OF A WATER PIPELINE WHEREAS, on October 5, 2000, Southern California Water Company, a California corporation ("SCWC"), pursuant to Decision No. 00-10-029 of the California Public Utilities Commission ("CPUC"), obtained a Certificate of Public Convenience and Necessity ("CPCN") to extend water service to a development on the Bolsa Chica Mesa; and WHEREAS, SCWC applied to the City on February 1, 2002, for a pipeline franchise pursuant to the CPCN; and WHEREAS, a dispute has arisen between the City and SCWC regarding the terms of the franchise and the conditions under which SCWC will initially construct and install the pipeline and related appurtenances; and WHEREAS, in order to resolve the dispute, the City and SCWC have agreed that prior to issuing a franchise to SCWC, the City and SCWC shall enter into this Agreement. This Agreement shall be null and void if the City does not issue a franchise in substantially the form of Exhibit A hereto(the "Franchise"). NOW, THEREFORE, the City Council of the City of Huntington Beach and SCWC agree as follows: Section 1. Encroachment Permit. SCWC shall not begin constructing the Facilities authorized by the Franchise without first obtaining an encroachment permit from the City Director of Public Works pursuant to Chapter 12.13 of the Municipal Code, As part of the encroachment permit application, SCWC shall submit to the Director detailed engineering and traffic control plans, including site-specific hours of construction, prepared under the supervision of a professional civil engineer or traffic engineer licensed to practice in the State of California. The application shall include a construction schedule identifying reasonable time periods for the completion of each stage of construction. If SCWC applies for the encroachment permit within 365 days of the effective date of the Franchise, SCWC shall pay any permit and inspection fees required by the terms of City Council Resolution No. 2003- 64, as amended through December 1, 2004. If SCWC applies for the encroachment permit more than 365 days after the effective date of the Franchise, SCWC shall pay any permit and inspection fees required by the terms of City Council Resolution No. 2003-64, as it exists at the time SCWC applies. Upon submission of such plans and payment of such fees, the Director shall issue SCWC an encroachment permit, which permit shall constitute the sole encroachment permit necessary to construct the pipeline including a construction schedule. Such encroachment permit shall be consistent with this Agreement, shall not discriminate against SCWC, and shall include such terms and conditions that the Director may reasonably establish which are not in conflict with or inconsistent with this Agreement or the paramount authority of the State of California. 1 Upon request, the Director shall grant reasonable time extensions to the construction schedule or modifications to the other terms and conditions due to changed conditions, inclement weather or inspection delays. Such requests may be made at any time during construction of the Facilities. Section 2. Lig_uidated Damages. (a) The Director may levy, and SCWC shall pay liquidated damages of Eight Hundred Dollars ($800.00) per 1,320 feet of lane closure per day, or any portion thereof, that exceeds without good cause the lane closures permitted under the construction schedule submitted by SCWC or any extensions granted by the Director pursuant to Section 1. (b) As a condition to the issuance of the encroachment permit, SCWC shall file with the City Clerk of City a corporate surety bond in the sum of Fifty Thousand Dollars ($50,000.00) to secure SCWC's obligations hereunder. In the event SCWC fails to pay the amount of any liquidated damages owed to City within thirty days of receiving written notification from the City or, if SCWC files an appeal, within the timeframe established by Section 9, the City may recover from the principal and sureties upon the bond the amount of liquidated damages owed by SCWC. Section 3. Construction Requirements. (a) Construction of the Facilities shall be accomplished pursuant to the terms of this Agreement,the encroachment permit and Applicable Law. (b) SCWC shall provide the City a telephone contact number, and staff it during regular business hours, to enable the City to report any concerns regarding Street work. After business hours such calls will be routed to an on-call supervisor. In the event that the City reports any concerns to SCWC, SCWC shall use its best efforts to respond in such time as the Director reasonably establishes, but SCWC shall not be required by the City to deviate from the terms of construction set forth in this Agreement and the encroachment permit. (c) SCWC shall use directional boring or trenchless construction on the segments of the pipeline traveling through the intersections at Warner,Heil,Edinger, McFadden and Rancho Road. (d) Every working day during construction, SCWC shall notify the designated City staff member of the location of the next day's construction activities. The number of concurrent construction locations may be limited by the City. (e) When repairing Street work, SCWC shall grind and overlay the full width of the primary lane which has been excavated or otherwise damaged. In no case, shall SCWC be required to grind and overlay more than 12 feet in roadway width for any given section of roadway. (f) SCWC will provide at its sole cost such shoring or other support as shall be reasonably required to support, maintain, and protect City Property, any storm drain or sewer constructed by the County of Orange, or any similar facilities by any other governmental agencies, from damages during construction of the Facilities. 2 (g) The bearing area for all thrust block restraints shall be constructed against undisturbed earth and shall not impact the existing City water pipelines. Bearing area calculations shall be prepared by a licensed civil engineer and submitted to the City for review and approval_ The civil engineer shall verify that the existing City water pipelines are not affected by any surcharge loading caused by the Facilities. All mechanical restraints for the Facilities shall be identified on the construction plans. (h) During the excavation and construction of the Facilities, SCWC shall use its best efforts to maintain the condition of plant material on the landscaped medians. At the conclusion of construction, SCWC shall replace in-kind any dead or damaged plant material, clean any valves, lines and heads that are plugged by materials entering the lines due to the cutting/breaking of lines caused by SCWC, and otherwise restore the medians to their condition at the beginning of construction. (i) SCWC's construction activities shall be confined to the hours between 9:00 a.m. and 4:00 p.m., Monday through Friday, with the exception that Bolsa Chica, north of Argosy shall be limited to 7:00 p.m. to 5:00 a.m. All traffic lanes shall be reopened for traffic outside of the identified lane closure periods. 0) Parking prohibitions on all roadways, where parking is currently permitted, shall be confined to the hours between 7:00 a.m. and 5:00 p.m. or to the hours of 5:00 p.m. to 6:00 a.m. in the case of nighttime construction for Bolsa Chica,north of Argosy. (k) Street closures will not be allowed during construction except as permitted by the Director, who shall not unreasonably prohibit them. The maximum length of any lane closure activity on Balsa Chica Street shall be one-quarter mule in each direction, excluding lane reduction tapering. The following minimum lane requirements shall be provided at all times during construction, subject to time of day restrictions as established above. These lane requirements are based on the alignment using the number 1 northbound lane of Balsa Chica Street. Any modification to this alignment may result in the minimum lane requirements being modified during construction of the pipeline. Arterial street closures shall be limited as follows: (i) Balsa Chica Street — Rancho Road to Warner Avenue: Maintain two northbound through travel lanes and three southbound lanes in each direction during work hours. Bolsa Chica Street—Warner Avenue to Los Patos: Maintain one southbound travel lane and one northbound travel lane during working hours. Warner Avenue: No lane closures at any time. (ii) Trenchless intersections: As provided by Section 3(c), construction at the following intersections shall use directional boring or trenchless construction. Should lane closures still be necessary at these intersections, they shall be limited as follows: 3 Rancho Road at Balsa Chica Street: Maintain one eastbound through travel lane, one westbound left turn lane and one westbound right turn lane during working hours. McFadden Avenue at Bolsa Chica Street: Maintain one eastbound through travel lane and one westbound left /right turn lane during working hours, in addition to required through lanes on Bolsa Chica Street. Edinger Avenue at Bolsa Chica Street: Maintain one eastbound through travel lane and one westbound left turn lane during working hours, in addition to required through lanes on Bolsa Chica Street. Heil Avenue at Bolsa Chica Street: Maintain one eastbound through travel lane and one westbound left turn lane during working hours, in addition to required through lanes on Bolsa Chica Street. Warner Avenue at Bolsa Chica Street: Maintain one eastbound through travel lane, one eastbound left turn lane, one westbound through travel lane and one westbound left tuna lane during working hours, in addition to required through lanes on Bolsa Chica Street. (iii) During construction of the Facilities, lane closures of local streets shall allow one two-way travel lane with flagger control. (iv) Where traffic signal detection is impacted by the construction activities, signal control for the impacted lanes shall be placed on recall. All modifications to existing signal controls will be coordinated with the City Engineer. If traffic signal detection is impacted longer than ten working days, the City may require video detection be furnished and installed by the contractor. (1) Loop detectors shall be restored to full operation within. 10 days of completion of an intersection. Under no circumstances shall detectors be out of operation at more than one intersection at the same time. (m) Prior to construction, SCWC shall contact the City's traffic signal maintenance crew to coordinate the installation of the video detection and the replacement of traffic signal detection on an as-needed basis as is reasonably determined by the Director. (n) K-rail may be used to control traffic on an as needed basis. Section 4. Completion Statement. Upon the completion of the construction of the Facilities, SCWC shall submit as-built P drawings and a statement to the Director identifying the permit or permits issued by the Director, the total length of, material and diameter of the pipeline, and any other Facility actually constructed. 4 Section 5. Damage ta�CityPro e�rty. SCWC shall promptly repair any damage it causes to City property while constructing the Facilities, at its sole cost and expense to as good a condition as it was before such damage occurred. If SCWC, within thirty (30) days after receipt of written notice from the City instructing it to repair such damage, fails to commence with such repairs, or thereafter fails to diligently complete them, then the City immediately may do all work reasonably necessary to complete the repairs at the cost and expense of SCWC,which cost and expense SCWC agrees to pay upon demand. The amount so chargeable shall be the reasonable or direct cost of such work (whichever is lower)plus the current rate of overhead being charged by the City for reimbursable work. The Director may establish a repair period shorter than 30 days if public safety so demands. If such damage constitutes an immediate danger to the public health or safety requiring: the immediate repair thereof, the City, without notice, may repair such damage and SCWC agrees to pay all reasonable costs the City incurs. Section 6. Changes by Mutual Agreement. Any of the terms of this Agreement may be changed upon the mutual consent and written agreement of the Director and SCWC. Section 7_ Insurance. In addition to the insurance required from SCWC pursuant to the Franchise, SCWC shall cause the City to be named as an additional insured on all insurance policies of SCWC's general contractor. In addition, the City shall be named as an additional insured on all insurance policies of SCWC's subcontractors where SCWC also is named as an additional insured. Section S. Definitions. All capitalized terms used herein shall have the same meaning as in the Ordinance granting SCWC its pipeline franchise. Section 9. Dispute Resolution. (a) In the event SCWC disagrees with any City decision related to the obligations and duties imposed by Sections I-6 of this Agreement (including but not limited to the terms of the encroachment permit, the reasonableness of the construction schedule and the imposition of liquidated damages), SCWC may appeal any such decision by filing a notice of appeal with Thomas W. Lloyd, P.E. (the "Hearing Officer") within 30 days of receiving written notice of the City's decision. No other disputes relating to this Agreement, the Franchise Ordinance or the Settlement Agreement shall be subject to arbitration of any kind unless the parties voluntarily agree to submit such dispute to arbitration. The remedies SCWC and the City may seek include, without limitation, specific performance,injunctive relief, damages, rescission and declaratory relief (b) After receiving notice of the appeal, the Heaving Officer shall promptly hold an evidentiary hearing and issue a written determination resolving the dispute. SCWC shall bear the cost of any fees charged by the Hearing Officer related to the hearing. Each party shall bear its own costs and fees in preparing and presenting their case to the Hearing Officer. The decision of the 5 Hearing Officer shall be final and binding. There shall be no right of appeal, except as provided under California Code of Civil Procedure §§ 1285.8 - 1287. (c) With respect to an appeal of the imposition of liquidated damages, SCWC shall pay the City any amount the Hearing Officer determines is owed to City hereunder within 34 days after receipt of the Hearing Officer's written determination. IN WITNESS WHEREOF, the Parties have executed this Agreement as of , to be effective as of the effective date of the Franchise. SOUTHERN CALIFORNIA WATER COMPANY, CITY OF HUNTINGTON BEACH,a municipal a California corporation corporation of the State of California By: Mayor print name City Clerk ITS: (circle one)Chairman/President/Vice President AND APPROVED AS TO FORM: By: print name City Attorney ITS:(circle one) Secretary/Chief Financial Officer/Asst. Secretary—Treasurer `J REVIEWED AND APPROVED: INITIATED AND APPROVED: City Administrator Director of Public Works 6 MAR-04-2005 11:35 OMM LA 1526 P.02i08 0 . 07MELV"LNY & MYERS UP $EI]INf 400 South HOPC Struct NEW YORK BRUSSELS Los Angeles, California 90071.2899 SAN FRANCISC o CENTURY CITY SHANGHAI TELEPHQNti (113) ,¢3o-6oao HONC KONG FACSIMILE (223)43o-6407 S[LiCUN VALLEY IRVINF SPECTRTIM TOKYO www.omm.com LONDON WASH[NGTON,D.C. NEWPORT BEACH OUR TPIL13 NUMBER March 4, 2005 Sj+675-054 VL4L FA_c'simim WRITER'S DIRECT DIAL (=13)43o.648z Scott Field, Esq. City of Huntington B=h WRITER'S E-MAIL ADDRESS 2WO Main Street, 4th Floor RSwerdlow@omm.coxn Huntington Beach, Califomia 92648 Re: Southern California Water Company v. Halttintgton Beach Dear Scott, I am writing to fallow up on our conversation on Wednesday in which we agreed t4 use Thomas W. Lloyd, P.E. as the arbitrator for disputes under the Construction Agreement. I have spoken with Mr. Lloyd and he has agreed to serve as arbitrator. I also have inserted Mr. Lloyd's name where appropriate in the Cvrlstrnction Agreement and a revised version is enclosed. fn addition, I have confirmed that the Water Company will sign the agreement in its present form. Please feel free to contact me should you have any questions about this matter. Sincerely, Robert M. Swerdlow O'MELVENY&M'YERS LLP RMS:ct Enclosure cc: James Colbert III,Esq. (w/out owl.) Mark Mulkerin, Esq. (w/encl.,via facsirn3[e) (8) February 22, 2005 -Council/Agency Agenda - Page 8 questions please call the Planning Department at 536-5271 and refer to the above items. Direct your written communications to the City Clerk 1. Staff report 2. City Council discussion 3. Open public hearing 4. Following public input,close public hearing PowerPoint presentation titled Good Shepherd Cemetery Expansion Appeal of Mitigated Negative Declaration No. 03-08 is included in the agenda packet. Recommended Action: Motion to: A. Planning Commission Recommendation: Approve Mitigation Negative Declaration No. 03-08 with Findings and Mitigation Measures (5:1 slopes) (Attachment No. 1) OR B. Staff Recommendation: Approve Mitigation Negative Declaration No. 03-08 with Findings and Modified Mitigation Measures (2:1 slopes) (Attachment No. 2) City Clerk read Late Communications, Motion to continue item to March 7 meeting. Approved 7— 0 D-3 (City Council) Public Hearing to Consider Whether the City Council Shall Grant a Water Pipeline Franchise to Southern California Water Company Pursuant to Resolution of Intention No. 2005-7 Adopted on January 18, 2005— Introduction of Ordinance No. 3701 —Approve Agreement Regarding Construction of a Water Pipeline (600.45) Notice is hereby given that on .January 18, 2005, the City Council of the City of Huntington Beach adopted a Resolution entitled LLA Resolution of the City Council of the City of Huntington Beach Declaring Its Intention To Grant a Water Pipeline Franchise to Southern California Water Company." The City Council of the City of Huntington Beach hereby gives notice as follows: On Tuesday, February 22, 2005, at 6:00 p.m. or as soon thereafter as the matter may be heard, in the regular meeting place of this City Council, City Council Chambers, City Hall, 2000 Main Street, Huntington Beach, California, the City Council will conduct a public hearing on whether to adopt "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," If adopted, this ordinance will grant Southern California Water Company a water pipeline franchise to provide water service to the Bolsa Chica Mesa, pursuant to Decision No. 00-10-029 of the California Public Utilities Commission. If granted, the franchise will terminate in fifteen (15) years, and provides that Southern California Water Company will pay to the City of Huntington Beach an annual fee consistent with Section 6231(c) of the California Public Utilities Code, as amended from time to time, and that, in the event such payment is not made, the franchise may be forfeited. (9) February 22, 2005 -Council/Agency Agenda -Page 9 At the above-mentioned time and place any person interested will be heard on the proposed ordinance. A copy of the proposed ordinance is on file in the City Clerk's office. Any questions on the proposed ordinance may be directed to Scott Field, Assistant City Attorney, (714) 536-5555. Any person may make written protest stating objections against granting the franchise by delivering the written protest signed by the protestant to the City Clerk at a time not later than 3:00 p.m. on February 22, 2005. 1. Staff report 2. City Council discussion 3. Open public hearing 4. Following public input,close public hearing Recommended Action: Motion to: 1. Open the public hearing, take testimony and close the public hearing. and 2. Approve for Introduction Ordinance No. 3701 — 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." and City Attorney McGrath reported orally. Public Hearing opened_ City Clerk read Late Communication. Public Hearing closed. Council discussion regarding Construction Agreement. Motion to approve Ordinance for introduction;to direct staff to return with the agreement and the name of the arbitrator at the March 7fh meeting. Approved 7—0 .r E-1. (City Council) Adopt Automatic Aid Agreement for Exchange of Fire, Rescue, and Emergency Medical Services with the Orange County Fire Authority (600.25)— AppFeve V and the City of unA.,. ton S^Gh (This agreement includes an MOU (Memoranda of HN CITY OF HI7NTINGTON BEACH Inter-Department Cr,Inicatio TO: MAYOR JILL HARDY AND z MEMBERS OF THE CITY COUNCIL -„ FROM: JENNIFER McGRATH,City Attorney DATE: Febraary 17,2005 > >-'' � x SUBJECT: Late Communication—Item D-3 On February 22,2005 City CounM � Agenda Regarding Granting Pipeline Franchise To Southern Catf i-A Water Company And Related Construction Agreement Item No. D-3, on the City Council Agenda concerns issuance of a pipeline firnnchise to Southern California Water Company. There are two action items on the Agenda;first, granting a Water Pipeline Franchise, and second,approving the Construction Agreement. Section 9 to the Construction Agreement contains a provision allowing for arbitration of any dispute between the City and Southern California.Water Company regarding the conditions of construction. For example,there could be disputes concerning the imposition of liquidated damages in cases of delays in completion of the pipeline. To rapidly resolve those disputes,the Construction Agreement provides for arbitration. However,the parties have not yet selected an arbitrator. A number of resumes have been reviewed, but the process is not quite complete. It is requested that the Council appprove the Construction Agreement, subject to the provision that the City Attorney may select the name of the arbitrator and add that name to the Construction Agreement after Council approval. �c NNIFER McGRATH City Attorney GVLEAM%uffi an CA WUer%CwmWwdeaceUi=Csmun.Memo.doc NOTICE OF PUBLIC HEARING REGARDING WHETHER THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH SHALL GRANT A WATER PIPELINE FRANCHISE TO SOUTHERN CALIFORNIA WATER COMPANY Notice is hereby given that on January 18, 2005, the City Council of the City of Huntington Beach adopted a Resolution entitled"A Resolution of the City Council of the City of Huntington Beach Declaring Its Intention To Grant a Water Pipeline Franchise to Southern California Water Company." The City Council of the City of Huntington Beach hereby gives notice as follows: On Tuesday, February 22, 2005, at 6:00 p.m. or as soon thereafter as the matter may be heard, in the regular meeting place of this City Council, City Council Chambers, City Hall, 2000 Main Street, Huntington Beach, California, the City Council will conduct a public hearing on whether to adopt "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," If adopted, this ordinance will grant Southern California Water Company a water pipeline franchise to provide water service to the Bolsa Chica Mesa, pursuant to Decision No. 00-10-029 of the California Public Utilities Commission. If granted, the franchise will terminate in fifteen(15)years, and provides that Southern California Water Company will pay to the City of Huntington Beach an annual fee consistent with Section 6231(c) of the California Public Utilities Code, as amended from time to time, and that, in the event such payment is not made, the franchise may be forfeited. At the above-mentioned time and place any person interested will be heard on the proposed ordinance. A copy of the proposed ordinance is on file in the City Clerk's office. Any questions on the proposed ordinance may be directed to Scott Field, Assistant City Attorney, (714) 536- 5555. Any person may make written protest stating objections against granting the franchise by delivering the written protest signed by the protestant to the City Clerk at a time not later than 3:00 p.m. on February 22, 2005. Dated: fsl Joan Flynn City Clerk, City of Huntington Beach CITY OF HUNTINGTONIBE'ACH MEETING DATE: January 18, 2005 DEPARTMENT ID NUMBER: CA 05-01 Council/Agency Meeting Held. -- �— Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied Clerk& Sig ure Council Meeting Date: January 18, 2005 Departme ID Number: CA 05-01 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR and CITY COUN IL MEMBERS SUBMITTED BY: PENELOPE C CBRET�I-GRAFT,TCITY ADMINISTRATOR PREPARED BY: JENNIFER McGRAT fityAttorney ROBERT F. BEARDSLEY, Director of ublic Works SUBJECT: Adopt A Resolution of Intention to Grant a Water Pipeline Franchise to Southern California Water Company. 159T. if/e, Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachments) Statement of Issue: Staff recommends that the City Council adopt a resolution declaring its intention to grant a water pipeline franchise to Southern California Water Company. A public hearing and adoption of an ordinance granting the franchise will follow the resolution. Funding Source: None Recommended Action: Motion to: 1. Adopt Resolution No. entitled: A Resolution of the City Council of the City of Huntington Beach of Intention to Grant a Water Pipeline Franchise to Southern California Water Company. 2. Direct the City Clerk to notice a public hearing for February 22, 2005 at-6:00 p.m. or as soon thereafter as the matter may be heard, for the adoption of an ordinance granting a water pipeline franchise to Southern California Water Company. Alternative Action(s): Do not adopt the resolution. G:IRCA120051SCWC.doc 113/2005 4:00 PM REQUEST FOR COUNCIL ACTION MEETING DATE: January 18, 2005 DEPARTMENT ID NUMBER: CA 05-01 Analysis: On July 23, 2002, the County of Orange recommended that the Coastal Commission approve Hearthside Homes' 378 single-family unit development on the upper bench of the Bolsa Chica Mesa. The Coastal Commission rejected the project on October 13, 2004, although it is expected to reconsider it in the next few months. In order to build this project, Hearthside contracted with Southern California Water Company ("SCWC")to provide water service. SCWC is a water utility regulated by the California Public Utilities Commission ("CPUC"). Consequently, SCWC applied in November 1998 to the CPUC for authority to build the water pipeline to serve the development. The CPUC approved the pipeline in October 2000. With the CPUC approval in hand, on February 1, 2002, SCWC applied to the City for a franchise to install the pipeline underneath Bolsa Chica Road. When the City deferred consideration of the franchise application, on January 23, 2003, SCWC sued to compel the City to grant a franchise: Southem California Water Company v. City of Huntington Beach, et aL, OCSC Case No. 03CCO2021. Based ul2on the CPUC approval, in December 2003 the Orange County Superior Court ordered the City to issue a franchise. However, instead of issuing a franchise, the City appealed the Court order. In order to avoid the lengthy appeal process, on August 2, 2004, SCWC filed an eminent domain suit to condemn an easement in Bolsa Chica Street for the pipeline: Southern California Water Company v. City of Huntington Beach, et al., OCSC Case No. 04CC08141. Ultimately, if the City did not grant a franchise, SCWC could condemn an easement and still build the water pipeline. Alternatively, if the Court of Appeal affirmed the Superior Court order, the City would be compelled to grant the franchise. Consequently, City Staff began negotiating a franchise ordinance and settlement of the litigation. Three separate documents have been completed: Franchise Ordinance, Construction Agreement and Settlement Agreement. The Settlement Agreement was approved by the City Council at its January 3, 2005 closed session. The settlement is conditioned upon the approval of the Franchise Ordinance and Construction Agreement. Briefly, the three documents provide as follows: 1. The Franchise Ordinance. The Franchise Ordinance is modeled after standard water franchises, and is very similar to the franchise agreement the City of Los Alamitos granted SCWC in 2000 to serve that City. It also resembles franchises Huntington Beach has granted Southern California Gas Company and Southern California Edison. The Franchise is for a fifteen-year term, and will yield franchise fee payments of less than $3,000 per year. 2. The Settlement Agreement. The Settlement Agreement provides for a $126,000 payment to the City for settling both suits. The payment is due if and when the City GARCAMOMSCM.doc -a- 113120054.01 PM REQUEST FOR COUNCIL ACTION MEETING DATE: January 18, 2005 DEPARTMENT ID NUMBER: CA 05-01 Council approves the Franchise Ordinance and the Construction Agreement. By approving the Settlement Agreement, the City Council did not commit itself to approving the Franchise Ordinance or the Construction Agreement. The Council retains full discretion to reject or modify the Franchise or Construction Agreement, after conducting a noticed public hearing. However, if either agreement is rejected, or modified in a manner SCWC finds unacceptable, the Settlement Agreement is null and void. SCWC may then proceed with condemnation in Superior Court. 3. Construction Agreement. The Construction Agreement contains the conditions designed to mitigate the effect of pipeline construction on traffic on Bolsa Chica Road. Briefly, these conditions are as follows: 1. Construction will be open trench in the number 1, northbound lane, except that the intersections at Warner, Heil, Edinger, McFadden and Rancho Road will be bored. 2. Hours of construction and lane closures on Bolsa Chica are limited to 9:00 a.m. to 4:00 p.m., except that work from Argosy to Rancho will be performed at night, from 7:00 p.m. to 5:00 a.m. 3. Warner will remain open at all times. 4. The maximum length of lane closure on Bolsa Chica shall be one- quarter mile in each direction, excluding lane reduction tapering. At a minimum there will be two northbound and three southbound lanes from Rancho Road to Warner Avenue, and one northbound and one southbound lane from Los Patos to Warner Avenue. 5. Instead of the standard "T" patch repaving, SCWC shall grind and overlay the full width of the lane excavated, to a maximum of 12 feet in roadway width for any given section of roadway. 6. Pursuant to the encroachment permit, the Public Works Director will establish a construction schedule. Violating the schedule results in a fine of$800 per lane closed, per day. 7. Any disputes regarding enforcement of the Construction Agreement, specifically the reasonableness of the construction schedule and the imposition of liquidated damages, shall be submitted to binding arbitration. SCWC shall pay for the cost of the arbitrator. Environmental Status: The CPUC approved the EIR for this project as part of its Decision No. 00-129-029 on October 5, 2000. G:1RCM2005=WC.doc 12/22/2004 2:30 PM REQUEST FOR COUNCIL ACTION MEETING DATE: January 18, 2005 DEPARTMENT ID NUMBER: CA 05-01 Attachment(s1: City Clerk's Page Number No. Description 1. Resolution No..P?a0 -7 , entitled: A Resolution of the City Council of the City of Huntington Beach of Intention to Grant a Water Pipeline Franchise to Southern California Water Company with Exhibit A— Proposed Ordinance, Exhibit B— Proposed Construction Agreement and Exhibit C — Public Hearing Notice GARCX20051SCWC.doc -,9-- 12/22/2004 4:18 PM 7 ATTACHMENT # 1 RESOLUTION NO. 2 0 0 5-7 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH DECLARING ITS INTENTION TO GRANT A WATER PIPELINE FRANCHISE TO SOUTHERN CALIFORNIA WATER COMPANY On October 5, 2000, Southern California Water Company, a California corporation ("SCWC," or "Grantee"), pursuant to Decision No. 00-129-029 of the California Public Utilities Commission ("CPUC"), obtained a Certificate of Public Convenience and Necessity ("CPCN") to construct a pipeline to provide 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; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Huntington Beach as follows: SECTION 1. It is the intention of the City to grant a water pipeline franchise to Southern California Water Company. The terms of the proposed franchise arc set forth in "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," attached hereto as Exhibit A. Concurrently with approving the Ordinance, the City intends to approve"An Agreement Between The City Of Huntington Beach And Southern California Water Company Regarding Construction Of A Water Pipeline,"attached hereto as Exhibit B. SECTION 2. On Tuesday, February 22, 2005, at 6:00 p.m. or as soon thereafter as the matter may be heard, in the regular meeting place of this City Council, City Council Chambers, City Hall, 2000 Main Street, Huntington Beach, California, the City Council will conduct a public hearing on an "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," at which time all persons having any objection to the granting of the franchise to Southern California Water Company may appear before the City Council and be heard thereon. SECTION 3. The City Clerk is hereby directed to cause notice of said public hearing to be given by publication one time within fifteen (15) days of the adoption of this resolution, in a newspaper of general circulation. The notice shall be substantially in the form of Exhibit C hereto. 04reso/grant franchise/1 A 1/05 —�— Resolution No. 2005-7 SECTION 4. This Resolution shall take effect upon its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 18 thday of January , 2005. ATTEST: AAPPROVED AS TO FORM: C er 'ty Attorn y REVIEWED AND APPROVED: ITIATE AND APP VED: ,/City Adm 'strator Director o Public Works 04reso/gant franchise/!/5105 -2- EXHIBIT A ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THB 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 {"CPCM) 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 , 2005, the City Council of the City of Huntington Beach adapted Resolution No. setting forth the Council's intention to grant a water pipeline franchise; and, WHEREAS, pursuant to Resolution No. , 'the City Council set the date of 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 , 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; I 9zaiLT01M XVd W OT toay/LTrZT (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 terra is defined in Section 1004(3)of the Resource Conservation and Recovery Act(RCRA) (42 U.S.C. § 6903(5)). (e) "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, grass negligence, contractual, statutory or strict liability, or otherwise, and any claims seeldng judicial or administrative relief, or relating to any administrative proceedings by any governmental agency,whether or not any such claim is ultimately defeated. (1) "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, 2 9Z0/9T01j YVA W OT tOOZ/LT/ZT 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 a non-exclusive water pipeline franchise to Grantee to lay and use up to an 1 S-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 law 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 tunes and places hereinafter specified, in lawful money of the United States, a sum equivalent to two percent (2%) of the gross annual 3 9ZO/BT01] YVA LV:OT b06Z/LT/ZT 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 (II%) 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. 4 9ZO/OZOIn 3N3 L6:OT VOOZ/LT/ZT 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. Indmnity. 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 5 8Z0/TZ0in gV3 8V=01 t00Z/GT/ZT 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 Assigpment At least thirty (30) days prior to any We, 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 S. Emergency 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. 6 9za/ZZ00 YM WOT V00Z/LT/Z1 SECTION 10. Facility Location Maps. 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 perfonning 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. 7 9Zo/£Zon XVd ot:OT t00Z/LT/ZT SECTION 13. Grantee's Failure to Compy 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(c) 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 Bond 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 W 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 least 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 occunrence, and at least Five-Hundred- Thousand Dollars($500,000.00)for property damage. 8 szoivzoe YVA aV:oi VooziLrrtit 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, 214.3 Convention Center Way, Suite 110, Ontario, California 91764, Attention: Vice President Customer Service,by certified mail, overnight mail 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 gzoisio� XVA 02:oT taoziiTrzT 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 shall cause same to be published in a Aewspaper 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 day of 2006.. Mayor ATTEST: APPROVED AS TO FORM: City Clerk City Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: City Administrator Director of Public Works INITIATED AND APPROVED Director of Administrative Services 10 a7nia7nM $V3 OS:OT V00Z/LT/ZT CONSTRUCTION PLANS FOR THE END OF SEGMENT 1 IWRLIa RYO ; --a BOLSA CHICA 18" DOMESTIC WATER TRANSMISSION PIPELINE SEGMENT 1 18"WATERTR LosAuµlTos uN ANSMISSION s -- -- DA MAIN 19'WATER MAIN SEGMENT iGARDEN PROJECT r G LOCATION AIJAFIEVd °"" "` 9 '--- GARDEN GROW ORANGE . 6arrt M T[M1u6[ WESTIANSTER SEAL HU TON 118r'WATER MAIN BEACH EACH %AL SEGMENT � BEACH MINSI ER NFwpQRT [MINE � BEACH l/d� -• .4 e i r i c FOREST 1Ml6W T3TM1F I'Y LAG BEAM SAN 1B'WATER AM SEGMENT�1 C RANO .,.., SEN REACH VICINITY MAP SAN ¢ BFACH CLEMENTE �4 SYVY9b91f1iR! DRAWINGS INDEX SHEET Wa oawoaou+�s N0. NO WOFMON 1 T1 411E OHM.WPL Ow"m 66T12WL Nm s 12 Co sl>dcnoW Walla.QUWM s,LEWVtl ABWM*r*d a 3 W Las PA=A% -F110Y SCL IINISS m 5TA 1M00.0D nWn6w,56r6[ � 6 L5 !06 M103 WE -MGM M w+aG.Wo To 9TA 23.mw i HUB N 6alse o6ra m.-Mou fA 13430M m S1A-*ON 5 u 661SL peu IT.-FRW IRA u+man m STA a6+ M L lI1117NeUdt e M WM c111u 5r.-MW 61A 3o40M TO VA�6+O6A6 F�Ji >' 1E am 060L sr.-ftm sr&+6+66m m srA"+Dom - 6 w 6mm cwA sr.-nm sm s wom m ITF.65+e4.oa Ir66[r�Raonr6� 0 u Wow 36 x Sr.-MOW srA ee+oG.eo m bTA 1e+aaw r 1a L6 6mS6 CMm Ill.-NSW STA,N(OAa M M 6T+aaoo I CC LOCATION MAP 11 w lEl/aim St.-mu sm m oom m M 106+WA 1¢ Llo W.M OAM ST,-MGM M[waom+ T6 m l l"WM . 13 411 WLM or&%5T.-rwu m T16+Gam To ttA 1tM6640 I 14 Lit wm m"Sr.-FR6W 6TA 156+65=m RA[Mw500 15 L13 6m.M aVG m.-M011]rw 170106AG TO Sfk 166w5aG 16 LI+ S a ST,-FRW STA 149E .aa m S7A 156+00.0G j�—.__��I 11 ll6 6m81 GHIGA ST.-FWM STA.156+6W 90 6TA 165W5aa ISInaTe16,e6is _ CITY OF HUNTINGTGN BEACH Is '16 TmLS1 a111eL Sr.-F STA les+oom m]A 112.00M yG6rna6 V9 LI1 LL9C6U d=WrA S [� 361101Eg1 CILIFCRwL mm CD~ EO_40 m-I-m-16 TRWM CCMROL PLAM SHEET N& IETT KEY MAP -mum Pu�wow V€ PROJECT NO,K!;ff MBp OPDII rteTITLE SHEET ""'A" DRAWING No dZ4?Z41[ ,nr gine� a 181 WATERTRANSMISSION MAIN Ti aSEGMEN SHT.t OP a �w.. "�0' °i DEVELOPER; HEARTHSIDE HOMES A'"'m EXHIBIT B 7n 1�rs. Ab,. AOOOJ- (A0,0"s&d h6RENWAge�) AN AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND SOUTHERN CALIFORNIA WATER COMPANY REGARDING CONSTRUCTION OF A WATER PIPELINE WHEREAS, on October 5, 2000, Southern California Water Company, a California corporation ('SCWC'), pursuant to Decision No. 00-10-029 of the California Public Utilities Commission C'CPUC'}, obtained a Certificate of Public Convenience and Necessity ("CPCM) to extend water service to a development on the Bolsa Chica Mesa; and WHEREAS, SCWC applied to the City on February 1, 2002, for a pipeline franchise pursuant to the CPCN; and WHEREAS, a dispute has arisen between the City and SCWC regarding the terms of the franchise and the conditions under which SCWC will initially construct and install the pipeline and related appurtenances; and WHEREAS, in order to resolve the dispute, the City and SCWC have agreed that prior to issuing a franchise to SCWC, the City and SCWC shall enter into this Agreement. This Agreement shall be null and void if the City does not issue a franchise in substantially the form of Exhibit A hereto (the"Franchise). NOW, THEREFORE, the City Council of the City of Huntington Beach and SCWC agree as follows: Section 1. Encroachment Permit. SCWC shall not begin constructing the Facilities authorized by the Franchise without first obtaining an encroachment permit from the City Director of Public Works pursuant to Chapter 12.13 of the Municipal Code. As part of the encroachment permit application, SCWC shall submit to the Director detailed engineering and traffic control plans, including site-specific hours of construction, prepared under the supervision of a professional civil engineer or traffic engineer licensed to practice in the State of California. The application shall include a construction schedule identifying reasonable time periods for the completion of each stage of construction. If SCWC applies for the encroachment permit within 365 days of the effective date of the Franchise, SCWC shall pay any permit and inspection fees required by the terms of City Council Resolution No. as it exists on December 1, 2004. If SCWC applies for the encroachment pensit more than 365 days after the effective date of the Franchise, SCWC shall pay any permit and inspection fees required by the terms of City Council Resolution No. as it exists at the time SCWC applies. Upon submission of such plans and payment of such fees, the Director shall issue SCWC an encroachment permit, which permit shall constitute the sole encroachment permit necessary to construct the pipeline including a construction schedule. Such encroachment permit shall be consistent with this Agreement, shall not discriminate against SCWC, and shall include such terms and conditions that the Director may reasonably establish which are not in conflict with or incotfsistent with this Agreement or the paramount authority of the State of California. 1 9Zo/£ooe xvA 6£:01 tOOZ/LT/ZT Upon request, the Director shall grant reasonable time extensions to the construction schedule or modifications to the other terms and conditions due to changed conditions, inclement weather or inspection delays. Such requests may be made at any time during construction of the Facilities. Section 2. Liquidated Damages. (a) The Director may levy, and SCWC shall pay liquidated damages of Eight Hundred Dollars ($800.00) per 1,320 feet of lane closure per day, or any portion thereof, that exceeds without good cause the lane closures permitted under the construction schedule submitted by SCWC or any extensions granted by the Director pursuant to Section 1. (b) As a condition to the issuance of the encroachment permit, SCWC shall file with the City Clerk of City a corporate surety bond in the sum of Fifty Thousand Dollars ($50,000.00) to secure SCWC's obligations hereunder. In the event SCWC fails to pay the amount of any liquidated damages owed to City within thirty days of receiving written notification from the City or, if SCWC files an appeal, within the timeframe established by Section 9, the City may recover from the principal and sureties upon the bond the mount of liquidated damages owed by SCWC. Section 3. Construction Requirements. (a) Construction of the Facilities shall be accomplished pursuant to the terms of this Agreement, the encroachment permit and Applicable Law. (b) SCWC shall provide the City a telephone contact number, and staff it during regular business hours, to enable the City to report any concerns regarding Street work. After business hours such calls will be routed to an on-call supervisor_ In the event that the City reports any concerns to SCWC, SCWC shall use its best efforts to respond in such time as the Director reasonably establishes, but SCWC shall not be required by the City to deviate from the terns of construction set forth in this Agreement and the encroachment permit. (c) . SCWC shall use directional boring or trenchless construction on the segments of the pipeline traveling through the intersections at Warner,Heil,Edinger,McFadden and Rancho Road. (d) Every working day during construction, SCWC shall notify the designated City staff member of the location of the next day's construction activities. The number of concurrent construction locations may be limited by the City. (e) When repairing Street work, SCWC shall grind and overlay the full width of the primary lane which has been excavated or otherwise damaged. In no case, shall SCWC be required to grind and overlay more than 12 feet in roadway width for any given section of roadway. (f) SCWC will provide at its sole cost such shoring or other support as shall be reasonably required to support, maintain, and protect City Property, any storm drain or sewer constructed by the County of Orange, or any similar facilities by any other governmental agencies, from damages during construction of the Facilities. 2 9Z0/i�DD1� %VA 6E=4T k00Z/LT/ZT (g) The bearing area for all thrust block restraints shall be constructed against undisturbed earth and shall not impact the existing City water pipelines. Bearing area calculations shall be prepared by a licensed civil engineer and submitted to the City for review and approval. The civil engineer shall verify that the existing City water pipelines are not affected by any surcharge loading caused by the Facilities. All mechanical restraints for the Facilities shall be identified on the construction plans. (h) During the excavation and construction of the Facilities, SCWC shall use its best efforts to maintain the condition of plant material on the landscaped medians. At the conclusion of construction, SCWC shall replace in-kind any dead or damaged plant material, clean any valves, lines and heads that are plugged by materials entering the lines due to the cutting/breaking of lines caused by SCWC, and otherwise restore the medians to their condition at the beginning of construction. (i) SCWC's construction activities shall be confined to the hours between 9:00 a.m. and 4:00 p.m., Monday through Friday, with the exception that Bolsa Chica, north of Argosy shall be limited to 7:00 p.m.to 5:00 a.m. All traffic lanes shall be reopened for traffic outside of the identified lane closure periods. 0) Parking prohibitions on all roadways, where parking is currently permitted, shall be confined to the hours between 7:00 a.m. and 5:00 p.m. or to the hours of 5.00 p.m. to 6:00 a.m. in the case of nighttime construction for Bolsa Chica,north of Argosy- (k) Street closures will not be allowed during construction except as permitted by the Director, who shall not unreasonably prohibit them. The maximum length of any lane closure activity on Bolsa Chica Street shall be one-quarter mile in each direction, excluding lane reduction tapering. The following minimum lane requirements shall be provided at all times during construction, subject to time of day restrictions as established above. These lane requirements are based on the alignment using the number 1 northbound lane of Bolsa Chica Street. Any modification to this alignment may result in the minimum lane requirements being modified during construction of the pipeline. Arterial street closures shall be limited as follows: (i) Bolsa Chica Street — Rancho Road to Warner Avenue: Maintain two northbound through travel lanes and three sorthbound lanes in each direction during work hours. Bolsa Chica Street—Warner Avenue to Los Patos: Maintain one southbound travel lane and one northbound travel lane during working hours. Warner Avenue: No lane closures at any time. (ii) Trenchless intersections: As provided by Section 3(c), construction at the following intersections shall use directional boring or trenchless construction. Should lane closures still be necessary at these intersections, they shall be limited as follows: 3 sznisao(M xvd 6c:01 tOOZILUZT Rancho Road at Bolsa Chica Street: Maintain one castbound through travel lane, one westbound left turn lane and one westbound right t1un lane during working hours. McFadden Avenue at Bolsa Chica Street: Maintain one eastbound through travel lane and one westbound left/ right turn lane during working hours, in addition to required through lanes on Bolsa CWca Street. Edinger Avenue at Bolsa Chica Street: Maintain one eastbound through travel lane and one westbound left turn lane during working hours, in addition to required through lanes on Bolsa Chica Street. Heil Avenue at Bolsa Chico Street: Maintain one eastbound through travel lane and one westbound left turn lane during working hours, in addition to required through lanes on Bolsa Chica Street. Warner Avenue at Bolsa Chico Street: Maintain one eastbound through travel lane, one eastbound lest turn lane, one westbound through travel lane and one westbound left turn lane during working hours, in addition to required through lanes on Bolsa Chico Street. (iii) During construction of the Facilities, lane closures of local streets shall allow one taro-way travel lane with flagger control. (iv) Where traffic signal detection is impacted by the construction activities, signal control for the impacted lanes shall be placed on recall. All modifications to existing signal controls will be coordinated with the City Engineer. If traffic signal detection is impacted longer than ten working days, the City may require video detection be furnished and installed by the contractor. (1) Loop detectors shall be restored to full operation within 14 days of completion of an intersection. Under no circumstances shall, detectors be out of operation at more than one intersection at the same time. (m) Prior to construction, SCWC shall contact the City's traffic signal maintenance crew to coordinate the installation of the video detection and the replacement of traffic sibmal detection on an as-needed basis as is reasonably determined by the Director. (n) K-rail may be used to control traffic on an as needed basis. Section 4. Completion Statement. Upon the completion of the construction of the Facilities, SCWC shall submit as-built drawings and a statement to the Director identifying the permit or permits issued by the Director, the total length of, material and diameter of the pipeline, and any other Facility actually constructed. 4 990/9001M YVd 6£:01 VOOZILI191 Section 5. Damage to City Property. SCWC shall promptly repair any damage it causes to City property while constructing the Facilities, at its sole cost and expense to as goad a condition as it was before such damage occurred. If SCWC,within thirty(30) days after receipt of written notice from the City instructing it to repair such damage, fails to commence with such repairs, or thereafter fails to diligently complete them, then the City immediately may do all work reasonably necessary to complete the repairs at the cost and expense of SCWC,which cost and expense SCWC agrees to pay upon demand The amount so chargeable shall be the reasonable or direct cost of such work(whichever is lower) plus the current rate of overhead being charged by the City for reimbursable work. The Director may establish a repair period shorter than 30 days if public safety so demands. If such damage constitutes an immediate danger to the public health or safety requiring the immediate repair thereof, the City, without notice, may repair such damage and SCWC agrees to pay all reasonable costs. the City incurs. Section 6. Changes by Mutual Agreement Any of the terms of this Agreement may be changed upon the mutual consent and written agreement of the Director and SCWC. Section 7. Insurance. In addition to the insurance required from SCWC pursuant to the Franchise, SCWC shall cause the City to be named as an additional insured on all insurance policies of SCWC's general contractor. In addition, the City shall be named as an additional insured on all insurance policies of SCWC's subcontractors where SCWC also is named as an additional insured. Section 8. Definitions. All capitalized terns used herein shall have the same meaning as in the Ordinance granting SCWC its pipeline franchise. Section 9. Dispute Resolution. (a) In the event SCWC disagrees with any City decision related to the obligations and duties imposed by Sections 1-6 of this Agreement (including but not limited to the terms of the encroachment permit, the reasonableness of the construction schedule and the imposition of liquidatcd damages), SCWC may appeal any such decision by filing a notice of appeal with (the "Hearing Officer") within 30 days of receiving written notice of the City's decision. No other disputes relating to this Agreement, the Franchise Ordinance or the Settlement Agreement shall be subject to arbitration of any kind unless the parties voluntarily agree to submit such dispute to arbitration. The remedies SCWC may seek include, without limitation, specific performance, injunctive relief, damages, rescission and declaratory relief. (b) After receiving notice of the appeal, the Hearing Officer shall promptly hold an evidentiary hearing and issue a written determination resolving the dispute. SCWC shall bear the cost of any fees charged by the Hearing Officer related to the hearing. Each party shall bear its own costs and fees in preparing and presenting their case to the Hearing Officer. The decision of the 5 9ZO/LOOIM XVd 6£:OT t00%/LT/ZT Hearing Officer shall be final and binding. There shall be no right of appeal, except as provided under California Code of Civil Procedure§§ 1285.8 - 1287. (c) With respect to an appeal of the imposition of liquidated damages, SCWC shall pay the City any amount the Hearing Officer determines is owed to City hereunder within 30 days after receipt of the Hearing Officer's written determination. IN WITN-ESS WHEREOF, the Parties have executed this Agreement as of , to be effective as of the effective date of the Franchise. SOUTHERN CALIFORNIA WATER COMPANY, CITY OF HUNTINGTON BEACH,a municipal a California corporation corporation of the State of California By: Mayor print name City Clerk ITS: (circle-one)Chainnan/PresidentNice President AND APPROVED AS TO FORM: By: print name City Attorney ITS:(circle one)Secretary/Chief Financial Officer/Asst,Secretary—Treasurer REVIEWED AND APPROVED: INITIATED AND APPROVED: City Administrator Director of Building&Safety 6 9Z0/9001Z YVJ WOT VOOZINIZT EXHIBIT C EXHIBIT C NOTICE OF PUBLIC HEARING REGARDING WHETHER THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH SHALL GRANT A WATER PIPELINE FRANCHISE TO SOUTHERN CALIFORNIA WATER COMPANY Notice is hereby given that on January 18, 2005, the City Council of the City of Huntington Beach adopted a Resolution entitled"A Resolution of the City Council of the City of Huntington Beach Declaring Its Intention To Grant a Water Pipeline Franchise to Southern California Water Company." The City Council of the City of Huntington Beach hereby gives notice as follows: On Tuesday, February 22, 2005, at 6:00 p.m. or as soon thereafter as the matter may be heard, in the regular meeting place of this City Council, City Council Chambers, City Hall, 2000 Main Street, Huntington Beach, California,the City Council will conduct a public hearing on whether to adopt "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," If adopted, this ordinance will grant Southern California Water Company a water pipeline franchise to provide water service to the Balsa Chica Mesa, pursuant to Decision No. 00-10-029 of the California Public Utilities Commission. If granted, the franchise will terminate in fifteen(15) years, and provides that Southern California Water Company will pay to the City of Huntington Beach an annual fee consistent with Section 6231(c) of the California Public Utilities Code, as amended from time to time, and that, in the event such payment is not made, the franchise may be forfeited. At the above-mentioned time and place any person interested will be heard on the proposed ordinance. A copy of the proposed ordinance is on file in the City Clerk's office. Any questions on the proposed ordinance may be directed to Scott Field, Assistant City Attorney, (714) 536- 5555. Any person may make written protest stating objections against granting the franchise by delivering the written protest signed by the protestant to the City Clerk at a time not later than 3:00 p.m. on February 22, 2005. Dated: Is/Joan Flynn City Clerk, City of Huntington Beach A-1 Res. No. 2005-7 STATE OF CALIFORNIA COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH y 1, JOAN FLYNN, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-offcio 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 resolution was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council at an regular meeting thereof held on the 18th day of January, 2005 by the following vote: AYES: Hansen, Coerper, Sullivan, Hardy, Green, Bohr NOES: Cook ABSENT: None ABSTAIN: None City (Frk and ex-officio CI o the City Council of the City of Huntington Beach, California RCA ROUTING SHEET INITIATING DEPARTMENT: City Attorney SUBJECT: Adopt A Resolution of Intention to Grant a Water Pipeline Franchise to Southern California Water Company. COUNCIL MEETING DATE: January 18, 2005 .. EE " ... MW Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Attached Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attome ) Not Applicable Subleases, Third Party Agreements, etc. _(Approved as to fonn by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attome Not Applicable Financial Impact Statement (Unbud et, over$5,000) Attached Bonds (If applicable) s Not Applicable Staff Report If applicable) Not Applicable Commission, Board or Committee Report If applicable) Not Applicable Find in s/Conditions for Approval and/or Denial Not Applicable �XR N'A I Mfok M M GATTA M T VA NR Administrative Staff Assistant City Administrator Initial -City Administrator initial City Clerk ]C�"�I�L�Tl �.F � I��TE�Rk O F ITEM` . .; . Space RCA Author; PROOF OF PUBLICATION STATE OF CALIFORNIA) ) SS. --- COUNTY OF ORANGE } HM.� ►Iw0 aF� . I�dIE NEE "�'�"t err vF .tw _ HUNTHIITON BEACH am a Citizen of the United States and a 1416 =MTOON resident of the County aforesaid; I am onIM(A1, ,,C 48 on ORDINANCE OF THE IOAN 36-522� C]TY COUNCIL OF THE over the age of eighteen years, and not a CITY- OF HUNTINGTON CWCFLERK BEACH GRANYING A PubIIW. d .Huntington party to or interested in the below entitled PIPELINE FRANCHISE Beach. Independent FOR TRANSMITTING March17,2005 .033.565 matter. I am a principal clerk of the WATER IN, UNDER ALONG AND ACROSS HUNTINGTON BEACH INDEPENDENT, STREETS, IN THE CITY OF HUNTINGTON.BEACN" a newspaper of general circulation SYNOPSIS: - BASED UPON CALI- printed and published in the City of TIES a PUBLICSION - TIEs COMMISSION Huntington Beach, County of Orange, DECE BERR NW,LM ORANGE COWM Sp- - State of California, and that attached PERIOR 'COURT OR- DEI(ED THE CITY TO Notice is a true and complete copy as IssI1E A. PIPELINE ERANCENSE..STAFF NE- was printed and published in the GOTIATEO A MAN, p p CHME ORDINANCE AND SETTLEMENT -orI THE Huntington Beach issue of said LIYIG!�TIOII WITH sOUTHIR114,COIF UA newspaper to wit the Issue(s) of: �►;H� ONIVA I ATE DOCUMENT- HAVE 'BEEN 'COMPLETYp, FRANCNtSE.0RDl- NANCE, CbNSTRUC- - T#ON AGRREMENT'ARD SETTLEMENT A6R,EE-. MENT. THE SETTLE- MARCH 17,2005 MINS Y TILL PEFIMJTS THE COUNCIL iO EKERCIU ITS FULL DISCRETION TO REJECT.OR!Yf OOlklf 'TFSE- FRAIKHISE OR CONSTRUCTION AGREEMENT. THE FRANCHISE ORDINANCE IS' MODELED AFTER I declare, under penalty of perjury, that SBA"Hl fsWAXER the foregoing is true and correct. CONST.x �p g . SIINECD .�rr1:r1TnBuOt'T# THE EFFKTAP PIPWN Executed on MARCH 17,2005 Trt ST �tTi O 4 OF at Costa Mesa, California. C0 -THIS OR-. D#IANCE-'•ARE Ayl�- A GE I TIRE ivy:! ��D w of n Signature roll Call