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Zenith Energy West Coast Terminals LLC Formerly Known As; Plains West Coast Terminals LLC; and Pacific Terminals LLC (Acquired Franchise from SCE). - 2004-05-03 (2)
RECEIVED BY: CITY CLERK RECEIPT COPY de VI n , A" h Return DUPLICATE to City Clerk's Office (Nam ) after signing/dating (Date) in CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION TO: City Treasurer FROM: City Clerk DATE: '2-2-J2t-1 SUBJECT: Bond Acceptance I have received the bonds for &1-C VMe,- 'CDG1St 1'r r, JJ (Company Name) CAPITAL PROJECTS (Includes CC's and MSC's) ai1Y1i-( 13,t1D2 ?(r320 Performance Bond No. %Y V c 2 tNGllr"Vt4'1C& 3LSLI Payment Bond (Labor and Materials) Bond No. Warranty or Maintenance Bond No. TRACT AND DEVELOPMENT Faithful Performance Bond No. Labor and Material Bond No. Guarantee and Warranty Bond No. Monument Bond No. Franchise Bond No. Letter of Credit Bond No. ,� Other � 11'll,t6rh 611 Ce r (, -& pp ��, � Re: Tract No. Approved )20o (Council Approval Date) CC No. Agenda Item No. MSC No. City Clerk Vault No. 000. L) 5 Other No ) P1l1Y1Q,ta111/111 .-) SIRE System ID No. I 31#0 D r g:/forms/bond transmittal to treasurer ZENITH ENERGY ZENITH ENERGY WEST COAST TERMINALS'LLC 18000 Studebaker Rd.,Suite 960 Cerritos,CA 90703 October 30, 2024 City of Huntington Beach a Attn: Kenneth Dills, Public Works x 2000 Main Street `- Huntington Beach, CA 92648 : N Re: Original Bond #022229320 �, Type: Performance Bond - Franchise Ordinance 3654 co Obligee: City of Huntington Beach ry Principal: Zenith Energy West Coast Terminals LLC ` ' Amount: $50,000.00 VIA FedEx Dear Mr. Dills, Enclosed please find the Continuation Certificate for Bond number 022229320. The Bond renewed October 15, 2024 and will be continued until October 15, 2025. The Continuation Certificate has been signed by the surety and is being delivered to you to evidence that the Bond will continue in full force and effect for the purposes stated therein. Thank you for your attention to this matter. Should you have any questions concerning this Bond, please do not hesitate to call me at 562-263-3919. Sincerely, Becky Sitton Right of Way Manager Zenith Energy West Coast Terminals LLC Becky.Sitton(a�zenithterminals.com Attachment: Continuation Certificate with Power of Attorney attached CONTINUATION CERTIFICATE Liberty Mutual Insurance Company Surety upon a certain Bond No. 022229320 dated effective October 15,2020 (MONTH-DAY-YEAR) Pacific Terminals LLC on behalf of (PRINCIPAL) and in favor of City of Huntington Beach (OBLIGEE) does hereby continue said bond in force for the further period beginning on October 15,2024 (MONTH-DAY-YEAR) and ending on October 15,2025 (MONTH-DAY-YEAR) Amount of bond $ 50,000.00 Description of bond Franchise Bond PROVIDED: That this continuation certificate does not create a new obligation and is executed upon the express condition and provision that the Surety's liability under said bond and this and all Continuation Certificates issued in connection therewith shall not be cumulative and that the said Surety's aggregate liability under said bond and this and all such Continuation Certificates on account of all defaults committed during the period (regardless of the number of years) said bond had been and shall be in force, shall not in any event exceed the amount of said bond as hereinbefore set forth. Signed and dated on October 1,2024 (MONTH-DAY-YEAR) Liberty Mutual Insurance Company kaum.dva vwsu, By J sica Richmond ,Attorney-In-Fact ; G"Po`tiyo0 1912 o > ; y O rd S4cHu5e 9/7 * S-0157/GEEF 11/99 i M. Vphi Liberty POWER OF ATTORNEY Certificate No: 8204866 rA mutual. Liberty Mutual Insurance Company SURETY The Ohio Casualty Insurance Company West American Insurance Company • KNOWN ALL PERSONS BY THESE PRESENTS:That The Ohio Casualty Insurance Company is a corporation duly organized under the laws of the State of New Hampshire,that Liberty Mutual Insurance Company is a corporation duly organized under the laws of the State of Massachusetts, and West American Insurance Company is a corporation duly organized under the laws of the State of Indiana(herein collectively called the"Companies"),pursuant to and by authority herein set forth,does hereby name,constitute and appoint, Jessica Richmond all of the city of Houston ,state of Texas each individually if there be more than one named,its true and lawful attorney-in-fact to make,execute,seal,acknowledge and deliver,for and on its behalf as surety and as its act and deed,any and all undertakings,bonds,recognizances and other surety obligations,in pursuance of these presents and shall be as binding upon the Companies as if they have been duly signed by the president and attested by the secretary of the Companies in their own proper persons. IN WITNESS WHEREOF,this Power of Attorney has been subscribed by an authorized officer or official of the Companies and the corporate seals of the Companies have been affixed thereto this 1st day of July,2024. Liberty Mutual Insurance Company 1NSU ZY INS INSU The Ohio Casualty Insurance Company pV Rq 4.0 pV q� ex Rq West American Insurance Company > ; 4,0 ▪ 1912g0 0_ 2at1919� o s 1991 0 -74"Ai Z r4 S`SACHUs ,da yO ,yHAMPsa`,4> 'ls *MAW' J By: vh * )- �yl * V.3. M * R•%.1 Nathan J.Zangerle,Assistant Secretary STATE OF PENNSYLVANIA ss u COUNTY OF MONTGOMERY a) Etc On this 1st day of July,2024,before me personally appeared Nathan J.Zangerle,who acknowledged himself to be the Assistant Secretary of Liberty Mutual Insurance Company,The a cam?, c`a Ohio Casualty Company,and West American Insurance Company,and that he,as such,being authorized so to do,execute the foregoing instrument for the purposes therein contained co v co by signing on behalf of the corporations by himself as a duly authorized officer. c 0 O w IN WITNESS WHEREOF,I have hereunto subscribed my name and affixed my notarial seal at Plymouth Meeting,Pennsylvania,on the day and year first above written. o > O 7 P PAST om N N > .Q-,400Nwp9(F(� Commonwealth of Pennsylvania-Notary Seal y�;//� /�,�� C = v Teresa Pastella,Notary Public /[f'.2�wt� O L N O OF Montgomery County (Y JPa��' My commission expires March 28,2025 By: Q m Commission number1126044 Teresa Pastella,Notary Public 0 O ` RY P� Member,Pennsylvania Association of Notaries - d O N O This Power of Attorney is made and executed pursuant to and by authority of the following By-laws and Authorizations of The Ohio Casualty Insurance Company,Liberty Mutual o Insurance Company,and West American Insurance Company which resolutions are now in full force and effect reading as follows: c C 132 ARTICLE IV—OFFICERS:Section 12.Power of Attorney. o m p)N _ Any officer or other official of the Corporation authorized for that purpose in writing by the Chairman or the President,and subject to such limitation as the Chairman or the < `o co President may prescribe,shall appoint such attorneys-in-fact,as may be necessary to act in behalf of the Corporation to make,execute,seal,acknowledge and deliver as surety o? C any and all undertakings,bonds,recognizances and other surety obligations.Such attorneys-in-fact,subject to the limitations set forth in their respective powers of attorney, it CV co E c shall have full power to bind the Corporation by their signature and execution of any such instruments and to attach thereto the seal of the Corporation.When so executed,such 3o N a? instruments shall be as binding as if signed by the President and attested to by the Secretary.Any power or authority granted to any representative or attorney-in-fact under the 0_c o E. provisions of this article may be revoked at any time by the Board,the Chairman,the President or by the officer or officers granting such power or authority. o`c9 N ARTICLE XIII-Execution of Contracts:Section 5.Surety Bonds and Undertakings. CD tit Any officer of the Company authorized for that purpose in writing by the chairman or the president,and subject to such limitations as the chairman or the president may prescribe, m= o shall appoint such attorneys-in-fact,as may be necessary to act in behalf of the Company to make,execute,seal,acknowledge and deliver as surety any and all undertakings, c 7 v bonds,recognizances and other surety obligations.Such attorneys-in-fact,subject to the limitations set forth in their respective powers of attorney,shall have full power to bind o a) the Company by their signature and execution of any such instruments and to attach thereto the seal of the Company.When so executed such instruments shall be as binding -,o m as if signed by the president and attested by the secretary. to Q Certificate of Designation—The President of the Company,acting pursuant to the Bylaws of the Company,authorizes Nathan J.Zangerle,Assistant Secretary to appoint such attorneys-infact as maybe necessary to act on behalf of the Company to make,execute,seal,acknowledge and deliver as surety any and all undertakings,bonds,recognizances and other surety obligations. Authorization—By unanimous consent of the Company's Board of Directors,the Company consents that facsimile or mechanically reproduced signature of any assistant secretary of the Company,wherever appearing upon a certified copy of any power of attorney issued by the Company in connection with surety bonds,shall be valid and binding upon the Company with the same force and effect as though manually affixed. I,Renee C.Llewellyn,the undersigned,Assistant Secretary,of Liberty Mutual Insurance Company,The Ohio Casualty Insurance Company,and West American Insurance Company do hereby certify that this power of attorney executed by said Companies is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed the seals of said Companies this 1st day of October 2024 Pv INSUR4 P01 INs°jp aJ pDaPOR4, 46 y, ooNPDRii et. f9t - O o 919 By: t:.l«�f� dp1 as4CHUs 4b 0 AMPsa L �S rNDIANP da Renee C.Llewellyn,Assistant Secretary 9i7 * 0 �'yi * '7M * eta Marsh MSurety POA LMIC OCIC WAIC Multi Co_092024 • CALIFORNIA ALL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of ' Texas } County of Harris } On October 1,2024 before me, Jennie Goonie ,Notary Public , (Here Insert name and title of the officer) personally appeared Jessica Richmond who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. � , JENNIE GOONIE WITNESS my hand and official seal. 2;' �=Notary Public,State of Texas N9 +�� Comm.Expires 06-15-2026 • • i%,,,,,,�O;,,‘‘�` Notary ID 125034504 N• - Public Signature (Notary Public Seal) • mission Expires: Ju a 15,2026 •ADDITIONAL OPTIONAL INFORMATION • INSTRUCTIONS FOR COMPLETING THIS FORM This form complies with current California statutes regarding notary wording and, DESCRIPTION OF THE ATTACHED DOCUMENT if needed,should be completed and attached to the document.Acknowledgments from other states may be completed for documents being sent to that state so long as the wording does not require the California notary to violate California notary law. (Title or description of attached document) • State and County information must be the State and County where the document signer(s)personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s)personally appeared which (Title or description of attached document continued) must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her Number of Pages Document Date commission followed by a comma and then your title(notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. CAPACITY CLAIMED BY THE SIGNER • Indicate the correct singular or plural forms by crossing off incorrect forms(i.e. he/she/they-is/eve)or circling the correct forms.Failure to correctly indicate this ❑ Individual (s) information may lead to rejection of document recording. ❑ Corporate Officer • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges,re-seal if a (Title) sufficient area permits,otherwise complete a different acknowledgment form. ❑ Partner(s) • Signature of the notary public must match the signature on file with the office of the county clerk. ❑ Attorney-in-Fact • Additional information is not required but could help to ensure this ❑ Trustee(s) acknowledgment is not misused or attached to a different document. Indicate title or type of attached document,number of pages and date. ❑ Other . Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer,indicate the title(i.e.CEO,CFO,Secretary). 2015 Version www.NotaryClasses.com 800-873-9865 • Securely attach this document to the signed document with a staple. RECEIVED BY: CITY CLERK RECEIPT COPY Return DUPLICATE to City Clerk's Office (Name) after signing/dating (Date) , CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION TO: City Treasurer FROM: City Clerk DATE: l / 121A SUBJECT: Bond Acceptance I have received the bonds for ii'\I' k V1r c OMS'� '`�il'1N��t/1GiES u C', ��V (Company Name) CAPITAL PROJECTS (Includes CC's and MSC's) n ��2;2�ZCi 32(� Performance Bond No. �� V1GVl� OrAir Ir1CP -3,094 Payment Bond (Labor and Materials) Bond No. • Warranty or Maintenance Bond No. TRACT AND DEVELOPMENT • Faithful Performance Bond No. Labor and Material Bond No. Guarantee and Warranty Bond No. Monument Bond No. Franchise Bond No. Letter of Credit Bond No. � nn,^, Other (^^����L I � C?}h'(1 �& — -0-181`nit.b 65-n4U Re: Tract No. Approved 51_ )200 Li • (Council Approval Date) CC No. Agenda Item No. MSC No. City Clerk Vault No. 000. /A 5 Other No0 I YIVIii i-raIt'Yhice) SIRE System ID No. Ita gal gJforms/bond transmittal to treasurer ! E CEIVED ;vaTII ENERGY 2023 MAR 16 PM 12: 4 l ZENITH ENERGY WEST COAST TERMINALS LLC CITY Ct r x. 18000 Studebaker Rd..Suite 960 C I T Y O f Cerritos,CA 90703 .>'i 1+ �Ay j p tj . T f f`1i f.:T Yi0 i36.A March 8, 2023 Sean Crumby Director Public Works Department City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 RE: Franchise Ordinance 3654 Renewal Dear Mr.Crumby, Zenith Energy West Coast Terminals LLC(formerly Plains West Coast Terminals LLC)is the owner of Franchise Ordinance 3654. The original fifteen-year term expired on July 31, 2018, was subsequently extended for a five-year term, per Section 1.3 of the Ordinance,and will expire on July 31, 2023. Therefore, per Section 1.3 of said Ordinance, we respectfully request your consent for a second five-year extension of the Franchise. Please sign below indicating your approval.With your approval and the extension, the new expiration date will be July 31,2028. If you have any c .) _ut ons,please feel free to contact me at becky.si'-w_: 01.zenithhterminals.com or(562-263- 3919. Sincerely, Becky Sitton Right of Way Manager Zenith Energy West Coast Terminals LLC APPROVED: BY. Sean Crumby Director, Department of P c Works City of Huntington Beach cc: Dana Love; Bill Krill PARAGON PARTNERS L7D March 3,2021 VIA FEDEX City of Huntington Beach 2000 Main Street,5th Floor Huntington Beach,CA 92648 Attn:Shannon Boon, Real Property Coordinator RE: Replacement Performance Bond for Franchise Ordinance No.3564 Shannon, Please find attached Performance Bond No.022229320 written by Liberty Mutual Insurance Company effective October 15,2020 to replace Bond No. RLB0009854 written by RLI Insurance Company effective November 15,2006. This Performance Bond was required by Pipeline Franchise Ordinance No.3564. Also,as requested,is an attached Change Rider to said Bond. No.022229320 which changes the name and address of the principal. Please accept this replacement bond and rider and return the previous bond in the enclosed FedEx envelope. For your reference,Ordinance No.3564 was issued to Pacific Terminals LLC which filled a name change to Plains West Coast Terminals, LLC with the California Secretary of State on June 1,2009. Subsequently, Plains West Coast Terminals, LLC filed a Name Change Amendment to Zenith Energy West Coast Terminals,LLC with the California Secretary of State on October 16,2020. I have enclosed a copy of each of these the Secretary of State filings. Please contact me at mboss@paragon-partners.com or(714)379-3376 ext. 106 if you have any questions or concerns. Thk you, >,` wa., Michael Boss Contract Land Agent for Zenith Energy West Coast Terminals, LLC Enclosures: Performance Bond No.022228923 effective October 15,2020 Change Rider to Bond No.022229320 dated February 25,2021 California Secretary of State Name Change Filings FedEx Envelope to return previous bond a " 5660 Katella Avenue,Suite 100 I Cypress,California 90630 714.379.3376 1888.899.7498 I Fax 714.908.8484 I www.paragon-partners.com Bond No.022229320 • This bond replaces Bond No. RLB0009854 written by RLI Insurance Company effective 11/15/2006. FRANCHISE BOND KNOW ALL MEN BY THESE PRESENTS: That we, Pacific Terminals LLC, 333 Clay Street, Suite 1600, Houston,TX 77002 herein referred to as the Principal, and Liberty Mutual Insurance Company,7900 Windrose Ave.,Plano,TX 75024 a corporation organized and existing under the laws of the State of Massachusetts as Surety, are held and firmly bound unto THE CITY OF HUNTINGTON BEACH, CALIFORNIA, 2000 Main Street, Huntington Beach, CA 92648 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 aty 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 which 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 become 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 October 15. 2021 but may be continued by continuation certificate signed by Principal arid 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 after such thirty day notice period,except for defaults occurring prior thereto. Surety is licensed in California and maintains a Best's Financial Size Category of IX.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 Surety has a Best's 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 California 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 15th day of October ,2020. Pacific Terminals LLC By: Dana D.Love Secretary Liberty al In rance Company By: ilip N. Bair,Attorney-in-Fact This Power of Attorney limits the acts of those named herein,and they have no authority to r Lib bind the Company except in the manner and to the extent herein stated. .� `t,e Li ►pert Liberty Mutual Insurance Company Ej � Mutual* The Ohio Casualty Insurance Company Certificate No:8201260-022001 —„-- West American Insurance Company SURETY POWER OF ATTORNEY KNOWN ALL PERSONS BY THESE PRESENTS:That The Ohio Casualty Insurance Company is a corporation duly organized under the laws of the State of New Hampshire,that Liberty Mutual Insurance Company is a corporation duly organized under the laws of the State of Massachusetts,and West American Insurance Company is a corporation duly organized under the laws of the State of Indiana(herein collectively called the"Companies"),pursuant to and by authority herein set forth,does hereby name,constitute and appoint, Philip N. Bair,Alfredo B.Banera III,Janie Cermeno,Eric S.Feighl,John L.Hohlt,Joyce A.Johnson,Jessica Richmond,Chelsea Nielson all of the city of Houston state of Texas each Individually If there be more than one named,Its tare and lawful attorney-in-fact to make, execute,seal,acknowledge and deliver,for and on its behalf as surety and as its act and deed,any and all undertakings,bonds,recognizances and other surety obligations,in pursuance of these presents and shall be as binding upon the Companies as if they have been duly signed by the president and attested by the secretary of the Companies in their own proper persons. IN WITNESS WHEREOF,this Power of Attorney has been subscribed by an authorized officer or official of the Companies and the corporate seals of the Companies have been affixed thereto this 13th day of May , 2019 . Liberty Mutual Insurance Company �,INSrr,7p�q� tY INOU N Oath* The Ohio Casualty Insurance Company J?`p�oNeta ow°R,,Ar �.� „p*aoswPitaa+0 West American Insurance Company ro 1912 1n r' 1919 n g 1991 n ci o aa�� /�1 t f/�, a r.•*,,act dD IA yAr D� ,fS3'4aUN►' .1:1 y. >et°a A $ f :.,( 00i N 77 * * Hl * D M * 1,.., B 85 E' David M.Carey,Assistant Secretary = State of PENNSYLVANIA ss "$ = County of MONTGOMERY its 0 0 N On this 13th day of May , 2019 before me personally appeared David M.Carey,who acknowledged himself to be the Assistant Secretary of Liberty Mutual Insurance 0 o ,,, Company,The Ohio Casualty Company,and West American Insurance Company,and that he,as such,being authorized so to do,execute the foregoing instrument for the purposes— Qy > therein contained by signing on behalf of the corporations by himself as a duly authorized officer. 8 w =o a ID = IN WITNESS WHEREOF,I have hereunto subscribed my name and affixed my notarial seal at King of Prussia,Pennsylvania,on the day and year first above written. c 0- L-o al N .4,s"" .. ;`.., COMMONWEALTH OF PENNSYLVANIA �( l k ri'� g Hh[arai Scat ._-. t p 4 Qj O i o6 Te ess Pastia Ham Puck C 0 t(Upper WnianT+ MYrrgorneryCounty By: ) At"Pi t 43 r4 C N /q,, ,„,vx t My Cnnrlissiot Fxo;yes March 28 2 21 eresa Pastella,Notary Public p rso a. ��, ,, ,,- Me:soa,Pares}wocAssecivecc Si NoNece Q-O O h .,„$4' to O ra 2 c ro This Power of Attorney is made and executed pursuant to and by authority of the following By-laws and Authorizations of The Ohio Casualty Insurance Company,Liberty Mutual 0.S Insurance Company,and West American Insurance Company which resolutions are now in full force and effect reading as follows: o a? E di ARTICLE IV-OFFICERS:Section 12.Power of Attorney. ," oAny officer or other official of the Corporation authorized for that purpose in writing by the Chairman or the President.and subject to such limitation as the Chairman or the m ";a President may prescribe,shall appoint such attorneys-in-fact,as may be necessary to act in behalf of the Corporation to make:execute,seal,acknowledge and deliver as surety >o m c any and all undertakings,bonds,recognizances and other surety obligations.Such attorneys-in-fact,subject to the limitations set forth in their respective powers of attorney,shall 2 N „_, E, have full power to bind the Corporation by their signature and execution of any such instruments and to attach thereto the seal of the Corporation.When so executed,such"-'°t?, Zinstruments shall be as binding as if signed by the President and attested to by the Secretary.Any power or authority granted to any representative or attorney-in-fact under the E ee provisions of this article may be revoked at any time by the Board,the Chairman,the President or by the officer or officers granting such power or authority. o ci . ARTICLE XIII-Execution of Contracts:Section 5.Surety Bonds and Undertakings. o in Any officer of the Company authorized for that purpose in writing by the chairman or the president,and subject to such limitations as the chairman or the president may prescribe, i .- shall appoint such attorneys-in-fact,as may be necessary to act in behalf of the Company to make,execute,seal,acknowledge and deliver as surety any and all undertakings, bonds,recognizances and other surety obligations.Such attorneys-in-fact subject to the limitations set forth in their respective powers of attorney,shall have full power to bird the Company by their signature and execution of any such instruments and to attach thereto the seal of the Company.When so executed such instruments shall be as binding as if sired by the president and attested by the secretary. Certificate of Designation-The President of the Company,acting pursuant to the Bylaws of the Company,authorizes David M.Carey,Assistant Secretary to appoint such attorneys-in- fact as may be necessary to act on behalf of the Company to make,execute,seal,acknowledge and deliver as surety any and all undertakings,bonds,recognizances and other surety obligations. Authorization-By unanimous consent of the Company's Board of Directors.the Company consents that facsimile or mechanically reproduced signature of any assistant secretary of the Company,wherever appearing upon a certified copy of any power of attorney issued by the Company in connection with surety bonds.shall be valid and binding upon the Company with the same force and effect as though manually affixed. I,Renee C.Llewellyn,the undersigned,Assistant Secretary,The Ohio Casualty Insurance Company,Liberty Mutual Insurance Company,and West American Insurance Company do hereby certify that the original power of attorney of which the foregoing is a full,true and correct copy of the Power of Attorney executed by said Companies,is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed the seals of said Companies this 15th day of October , 2020 P,mat, 'Cla IHSV Q*ono_ %Y J ono 19122. ^ c 1919 a f 1991 0 o' B a�'°e.c„usaya� �o4erv/'��0 l,P3nveu><� ,�a�' y-ReneeC.Llewellyn,AssistantSecretary sty * t- A'1 * 1 M * ti LMS-12873 LMCOCIC WAIL Multi Co_06201e SURETY NOTARY ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF HARRIS Before me, the undersigned authority, a Notary Public in and for said State and County, on this day personally appeared Philip N. Bair, personally known to me to be the person whose name is subscribed to the foregoing instrument, as the Attorney-in-Fact for LIBERTY MUTUAL INSURANCE COMPANY acknowledged to me that he subscribed the name of LIBERTY MUTUAL INSURANCE COMPANY hereto as Surety and his own name as Attorney-in-Fact, and executed the same for the purposes and consideration therein expressed, and in the capacity therein set forth. Given under my hand and seal of office this the 15th day of October,2020. 12141./1.1sij ssica Richmond, Notary Public in and for STATE OF TEXAS JESSICA RICHMOND � • NOTARY 101128519389 ' ,-A My Commission Expires t; t•:A : May 07.2023 efr Liberty Interchange Corporate Center Mutual t�# tiuL __1 TM 450 Plymouth Road,Suite 400 Plymouth Meeting,PA 19462-1644 Ph.(610)832-8240 CHANGE RIDER To be attached to and form a part of surety bond number 022229320 ,dated the 15th day of October , 2020 issued by Liberty Mutual Insurance Company, a Massachusetts stock insurance company, as surety(the"Surety"), on behalf of Pacific Terminals, LLC 333 Clay Street, Suite 1600, Houston, TX 77002 , as principal(the"Principal"), in favor of The City of Huntington Beach, CA 2000 Main Street, Huntington Beach, CA, 92648 , as obligee(the"Obligee"). The Principal and the Surety hereby consent to changing the attached bond as follows: Principal Name Change From: Pacific Terminals LLC To: Zenith Energy West Coast Terminals LLC Principal Address Change From: 333 Clay Street, Suite 1600, Houston, TX 77002 To: 3900 Essex Lane, Suite 700, Houston,TX 77027 This change is effective 15th day of October , 20 20 . The attached bond shall be subject to all of its terms,conditions and limitations except as herein modified. IN WITNESS WHEREOF, said Principal and Surety have caused these presents to be duly signed and sealed this 25th day of February , 20 21 WITNESS/ATTEST: Zenith Energy West Coast Terminals LLC (Pri ip'ul) '7 r` ct By: 00 (Seal) Na e: lr Uwe._ Title: LIBERTY MUTUAL INSURANCE COMPANY (Surety) By: �••_'_ A ney-in-Fact ACCEPTED: Philip N.Bair, 1NSUp 4JP 4opvortq Ty., (Obligee) ?1912 o By: (Seal) `9,� 43 Name: d� 84eHus .t$a Title: '/7 * Date: Seal No.4440 LMIC-3000 Rev.03/04 This Power of Attorney limits the acts of those named herein,and they have no authority to ove .... bind the Company except in the manner and to the extent herein stated. 1 # � y� lib ty Liberty Mutual Insurance Company rf t .Mutual° The Ohio Casualty Insurance Company Certificate No: 8204862-022001 West American Insurance Company SURETY POWER OF ATTORNEY KNOWN ALL PERSONS BY THESE PRESENTS:That The Ohio Casualty Insurance Company is a corporation duly organized under the laws of the State of New Hampshire,that Liberty Mutual Insurance Company is a corporation duly organized under the laws of the State of Massachusetts,and West American Insurance Company is a corporation duly organized under the laws of the State of Indiana(herein collectively called the"Companies'),pursuant to and by authority herein set forth,does hereby name,constitute and appoint, Chelsea Nielson;Jessica Richmond;Joyce A.Johnson;Philip N.Bair;Stephanie Gross all of the city of Houston state of TX each individually if there be more than one named,its true and lawful attorney-in-fact to make, execute,seal,acknowledge and deliver,for and on its behalf as surety and as its act and deed,any and all undertakings,bonds,recognizances and other surety obligations,in pursuance of these presents and shall be as binding upon the Companies as if they have been duly signed by the president and attested by the secretary of the Companies in their own proper persons, IN WITNESS WHEREOF,this Power of Attorney has been subscribed by an authorized officer or official of the Companies and the corporate seals of the Companies have been affixed thereto this 12th day of February , 2021 . Liberty Mutual Insurance Company ..at' Mew& .ZY INSU C1991 The Ohio Casualty Insurance Company AJ coa"°4+r 4 c0ee0e,, West American Insurance Company 3 `s la a. * t n+ ` 1912 0 0 1919 h A //7 uire re $ Z Rao ,/ l e'- rUo to sos4cHU6 a O�i�/AMps b lG � r�,,c; 'i`- U c e * I,� 44 * t, By: `. to David M.Carey,Assistant Secretary 0 3 k`tt State of PENNSYLVANIA CD at County of MONTGOMERY SS o .,. z On this 12th day of February , 2021 before me personally appeared David M.Carey,who acknowledged himself to be the Assistant Secretary of Liberty Mutual Insurance 0 a)1 Na) Company,The Ohio Casualty Company,and West American Insurance Company,and that he,as such,being authorized so to do,execute the foregoing instrument for the purposes,a CD> therein contained by signing on behalf of the corporations by himself as a duly authorized officer. ^0 IN WITNESS WHEREOF,I •have hereunto subscribed my name and affixed my notarial seal at King of Prussia,Pennsylvania,on the day and year first above written. 0 CO c-an, O o qw}4 0Wk,r4:- Comma:weallhofPennsylvania-NotarySeal >„_ C .0' aey.( Teresa PasteSM,Notary Public C"t 2 r Montgomery County //�,. �f i 1 E Cl�' or My commission expires Mardi 28,2025 By: �) w.a�r. d tLII �, <tr Coamnlssion number 1126'044 i y�F ' Member,PennsyNanta Association d notaries eresa Pastelia,Notary Public Q o L CNI ., This Power of Attorney is made and executed pursuant to and by authority of the following By-laws and Authorizations of The Ohio Casualty Insurance Company,Liberty Mutual ao c Insurance Company,and West American Insurance Company which resolutons are now in full force and effect reading as follows: a m 2 ARTICLE IV-OFFICERS:Section 12.Power of Attorney. o`o o Any officer or other official of the Corporation authorized for that purpose in writing by the Chairman or the President, and subject to such limitation as the Chairman or the-0,- President may prescribe,shal appoint such attorneys-in-fact,as may be necessary to act in behalf of the Corporation to make,execute,seal,acknowledge and deliver as surety m_ TV> C any and all undertakings,bonds,recognizances and other surety obligations.Such attorneys-in-fact,subject to the limitations set forth in their respective powers of attorney,shall o 8 ED. have full power to bind the Corporation by their signature and execution of any such instruments and to attach thereto the seal of the Corporation.When so executed,such oar Z 0 instruments shall be as binding as if signed by the President and attested to by the Secretary.Any power or authority granted to any representative or attrne -in-fact under the attorney-in-fact ,_ m provisions of this article may be revoked at any time by the Board,the Chairman,the President or by the officer or officers granting such power or authority. to Q ARTICLE XIII-Execution of Contracts:Section 5.Surety Bonds and Undertakings. Any officer of the Company authorized for that purpose in writing by the chairman or the president,and subject to such limitations as the chairman or the president may prescribe; shall appoint such attorneys-in-fact,as may be necessary to act in behalf of the Company to make,execute,seal,acknowledge and deliver as surety any and all undertakings, bonds,recognizances and other surety obligations.Such attorneys-in-fact subject to the limitations set forth in their respective powers of attorney,shall have full power to bind the Company by their signature and execution of any such instruments and to attach thereto the seal of the Company.When so executed such instruments shall be as binding as if signed by the president and attested by the secretary. Certificate of Designation-The President of the Company,acting pursuant to the Bylaws of the Company,authorizes David M.Carey,Assistant Secretary to appoint such attorneys-in- fact as may be necessary to act on behalf of the Company to make,execute,seal,acknowledge and deliver as surety any and all undertakings,bonds,recognlzances and other surety obligations. Authorization-.By unanimous consent of the Company's Board of Directors,the Company consents that facsimile or mechanically reproduced signature of any assistant secretary of the Company,wherever appearing upon a certified copy of any power of attorney issued by the Company in connection with surety bonds,shall be valid and binding upon the Company w':th the same force and effect as though manually affixed. I,Renee C.Llewellyn,the undersigned,Assistant Secretary,The Ohio Casualty Insurance Company,Liberty Mutual Insurance Company,and West American Insurance Company do hereby certify that the original power of attorney of which the foregoing is a full,true and correct copy of the Power of Attorney executed by said Companies,is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF,I have hereunto set my hand and affxed the seals of said Companies this 25th day of February , 2021 . 0134 0 t INS( N%NSU .T�eJ ,p3 �o�T �Fs kn �J oap 'Fyn a o* o*roe4% 0 1912 o a 1919 `' I' 1991 0 `-.G./'y�'� By: Y�:d.'4cMasin s 3° IAMPII/4o :e %MO" .." Renee C.Llewelyn,Assistant Secretary LMS-12873 LMIC OCIC WAIC Multi Co 02/21 4 i.L -I,JP State of California Secretary of State LIMITED LIABILITY COMPANY FILED APPLICATION FOR REGISTRATION In the Office of the secfetaly S CERTIFICATE OF AMENDMENT of the State ofCalifom.- JUN 01-2009 A$30.00 filing fee must accompany this form IMPORTANT—Read instructions before completing this form. This Space For Filing Use Only 1. Secretary of State File Number 200207410087 2. Name under which this foreign limited liability company is conducting business In California: Pacific Terminals LLC 3. COMPLETE ONLY THE SECTIONS WHERE INFORMATION IS BEING CHANGED. ADDITIONAL PAGES MAY BE ATTACHED,IF NECESSARY. CONSULT THE INSTRUCTIONS BEFORE COMPLETING THIS FORM. A. The name under which this foreign limited liability company conducts business in California. (End the name with the words"Limited Liability Company,"or'Ltd.Liability Co.."or the abbreviations"LLC"or"L.L.C.") Plains West Coast Terminals LLC B. The name of the foreign limited liability company has been changed as follows and has been recorded in the home state or country: Plains West Coast Terminals LLC C. State or country of formation of the foreign limited liability company, if false or erroneous at time of registration. { D. Date on which the foreign limited liability company was formed,if false or erroneous at time of registration. E. Address of the principal executive office: City State Zip Code F. Address of the principal office in California: City State CA Zip Code 4. Future effective date, if any: Month Day Year 5. Number of1paages attached,if any: 6. Doci of, relay declared that 1 am the person who executed this instrument,which execution is my act and deed. Tim Moore,Vice President sgr; rre of Authorized Person Type or Pint Name and Tide ofAuthoriied Person May 28,2009 Dale RETURN TO: NAME FIRM ADDRESS CITYISTATE �I ZIP CODE SEC/STATE(REV. 03/2005)LL FORM ILC4-FILING FEE. S3000 �.�_..._ Approica l 5ccrotole of Stith ilatastaty of Mato Lire. Unsibt liability Kz.-1,4,07/ �Chong*Anionti nt alai aRrailr•»1Ne.al tr ritrtreltono lashes campilsem Oda trords. FLED Must trams"Oh cement enlaG$e ornament 1he.npm.d ai , by Secretary of State auommilt ligoogrlewe the ilC sestomed. ern tetebirecao no. Soh of CaNpi'ma MIR* — $34.00 tom' t OCM1— Copy Pose — Pint page.b1:a0%each attachment peg.100-60; Con Fee.$&W Net:You must tile s Statement of Informarion(Form t!G-12)to dame the U.C'e barite enetireee(es),erhi the name at address atlhsU.C9t agent ix sw op ar amass.Steem.n Mnforns on(Form LLC-12)am be lied online el CA" rnreet odetti. Above Vacs.For Oticetest Oak 1.LLC Exact Ike Used in Callthernia(Enierlhet we used to 4 iliamia sooty as 1irYsi onlhe monk orihe 4ieeorres arameiry otreaM.) Plains West.Coast Terminals LLC 2 LW 12.0tit. Entity Number(Fewer versed R Mitt(t )number lsmrsa Whit Ceinbmts 3ememry times) 2 ' 0 0 2 01 7 4 340 ` '0 8 7 3:New LLC Marne in the.tithe,Counby,or•Other PNea.•ai LLC Fenastion mew LLC theme lortame iamexetsr!1emof t nnehm,Wig arewlist')nears ea avidlondrig Ito near.amps.) •Z• any Energy West Coast Terminals LLC &California Altenmis IReettleed 03 Se 1reL'Yc0m*"ColVele elm'ate,46. 4a.Ust en sitemito name to timed In Cretana r(1)the IiC name in Item 3 does noteomply with Caligula naming reedreme ntis or ft)> adror'e fag ale form to daps art. eft atom.*twee used in Cet toreia.Lint Me ahameee name aescily as it is to smear on thermals arthe►Caltkaiatioratary of Oath. 4b.Chair b*box/you completed item 3,above and if aerpiosbie. It you dick this box,do not complete leant 4a above or 44 below. CI This 1st C moldered in Callamla before January y 1,2014;casr r tame*bimetal&business in Calfornia under-the alternate name listed In iOsrn 1 above and upon this Ming,will continue to hens**&bras► business in California under the alternate name Voted is Item 1 above.. 40.1 you ttetiiiiismot,dorrotaorrlpede Itain4acr4babove a Madras bdx If suite tern :see California name. Signatine By darting.Ladino tinder pen*/adpeirlury Medd the information hank is true end comd and that I am authorised to sign on beiiiltlf of the foreign U.C. Mutate signet sea Worth an eutchid .fie,harry.ars MteorpmsWd beads by relbaw°.sad mode pout Olds Forty LLC4.(M atichmentestauld bad%x 11,onsarea,hob*ad d.aq narked se an•riectmerd to this form LLC-S.) Dana D. Love Two or Priit thine act(FEY 6) 9919Cie4nis=arah_ Delaware Page 1 The First State I, JEFFREY W. BULLOCK, CRY OF STATE OF THE STATE OF rZLAW ARE, DO IDTRzar CERTIFY THAT TEE SAID 'PLAINS WEST COAST TERa1ALE LLC: , FILED A CERTIFICATE OF JUSITHIMENT, CNANGIgiG ITS Nam TO 'ZEMITE ENERGY WEST COAST TERMINALS LLC' ON TEE rzrzsmarill DAY OF OCTCBER, A.D. 2020, AT 4:58 O'CLOCK P.M. Alia* PP f . 3497065 8320 ' � Authentication:203873327 SR#20207857001 Date: 10-15-20 You may verify this certificate online at corp.delaware.gov/authvershtml kZENITH ENERGY ZENITH ENERGY WEST COAST TERMINALS LLC 3900 F'Lane,Suite 700 Houston,Texas 77027 Dana D.Love General Counsel 713.395.6213 danalove@zertithterminals.com June 1,2021 VIA EMAIL Michael Vigliotta City of Huntington Beach 2000 Main Street Huntington Beach,CA 92648 Re: Oil Pipeline Franchise a Ordinance No. 3654 by and between the City of Huntington Beach and Zenith Energy West Coast Terminals LLC (the"Franchisee"or the"Company")dated June 21, 2004(the"Franchise Agreement") Dear Mr.Vigliotta: Thank you for your letter of May 21,2021,which was received via email on May 26,2021.After reading your letter, it is dear that I need to correct a misunderstanding you may have from the description of the transaction in my letter of February 25, 2021 to the City Clerk's office. Specifically, the Franchise Agreement was not acquired by or otherwise transfetted to Zenith Energy Terminals Holdings LLC ("ZETH"). 1 respectfully disagree with your assertion that there has been a violation of Section 1.9 of the Franchise Agreement, which pertains to sales, transfers, assignments and leases, none of which have transpired. Further,the change of control language in City Municipal Code Section 3.44.210 refers to corporations and partnerships, not limited liability companies, which do not have voting stock or general partners, and is inapplicable to the transaction that occurred.The Franchisee continues as the franchisee under the Franchise Agreement and continues to use the franchised premises in the same manner as it did prior to the closing of the previously described transaction. What transpired was a change in the name of the Franchisee from Plains West Coast Terminals LLC to Zenith Energy West Coast Terminals LLC. Attached to this correspondence is a copy of the certificate of name change from the Delaware Secretary of State. With respect to your concern about a delay in the communications to the City,ZETH purchased the equity of the Franchisee from Plains Marketing, L.P. ("Plains") pursuant to a Membership Interest Purchase Agreement (the "MIPA"), which by its terms prohibited ZETH and its affiliates from contacting governmental agencies or representatives,employees,and counterparties to any of the agreements to which the Company was a party prior to the closing of the transaction.However,as you point out,the filing with the CPUC for approval of the transaction,which included a redacted copy of the MIPA, was available to the public from January 2020. There was no attempt to hide the transaction, but Plains was, as any seller would be,protective of its business relationships and thus controlled the communications with respect to those relationships.The fact that Plains did not communicate directly with the City about the transaction prior to the closing is unfortunate,but after ZETH and its affiliates(which now included the Franchisee) were no longer prohibited from doing so,the letter was sent to the City Clerk and the Company set about providing other information and documentation to ensure compliance with the Franchise Agreement. Oil Pipeline Franchise-Ordinance No.3654 June I,2021 Page 2 We are continuing to finalize the Company's outstanding payment obligations with Plains' assistance, which has been an ongoing effort since the transaction closed.Until we received your letter,we had been expecting an invoice from the City for the 2020 Franchise Fee and were unaware that there was an underpayment issue with respect to years past.Despite the change in the name of the Company,the mailing address of the California office of the Franchisee has not yet changed and.I am unaware of any invoice or notice being sent by the City of Huntington Beach to Plains West Coast Terminals LLC with respect to a payment due, an arrearage or otherwise. Regardless, we have confirmed and processed the request for payment of the 2020 Franchise Fee and a check for $25,942.24 is being overnighted for arrival on Wednesday,June 2,2021,and we are reconciling the differential noted for years 2016-2019. With respect to Section 2.4 of the Franchise Agreement,I am attaching to this correspondence a certificate of insurance("COI")that had previously been prepared for the City of Huntington Beach,which we are having amended to comply with the applicable limits in the Franchise Agreement. The Franchise Agreement allows for the possibility of higher deductibles than cited in your letter upon certain approvals after the submission of appropriate assurances.l do not believe the deductibles in the Franchise Agreement are currently available in the commercial insurance market so we respectfully request that requirement be waived, but please advise what appropriate assurances the City would consider in order to increase said deductibles,We will send the updated COI with the limits set forth in the Franchise Agreement to Mr.Krill next week,if not before. In compliance with Section 2.5 of the Franchise Agreement, the Company provided a copy of the replacement bond to the City Attorney's office in February for its review prior to issuance,to which your office then requested that the bond be endorsed to reflect the changed name of the Company.The complete bond package was sent to Shannon.Boon on March 3,so please refer Mr.Krill to Ms Boon for the originals, but I have attached a copy of the package to this correspondence. As explained above,there was no assignment of the Franchise Agreement,therefore it is inappropriate to impose additional terms and conditions under Section 3.44.210 of the City Municipal Code.I respectfully request that you reconsider this position as well as the request for a penalty in lieu of forfeiture and a transfer processing fee because there was no assignment of the Franchise and no transfer of the Franchise is necessary.The Franchisee was and is Zenith Energy West Coast Terminals LLC,formerly known as Plains West Coast Terminals LLC. Zenith would very much like to maintain a good relationship with the City of Huntington Beach,and in the spirit of cooperation is amenable to increasing the insurance limits and the principal amount of the surety bond to those set forth in the draft Resolution attached to your letter so long as the City is in agreement with the requests of the Company as set forth in this letter. I look forward to hearing from you after you have fully reviewed this letter and the attachments to this correspondence. 4Ve truly yours, na D.Love Encl. Certificate of Name Change Certificate of Insurance. Surety Bond Package C: Ken Dills William Krill CITY OF HUNTINGTON BEACH Mike Vigliotta +'UrTitGt i Chief Assistant City Attorney OFFICE Gemia L.Taylor of the Community Prosecutor .Q ,.3,„% ,s 0:�,' CITY ATTORNEY Jemma Dunn �„g Sr.Deputy City Attorney Daniel S.Cha P.O.Box 190 Sr.Deputy City Attorney Michael E. Gates 2000 Main Street Pancy Lin City Attorney Huntington Beach,California 92648 Sr.Deputy City Attorney Telephone: (714)536-5555 Scott Field Facsimile: (714)374-1590 Deputy City Attorney May 20, 2021 Mr. Dana D. Love Sent via US Mail and Email General Counsel Zenith Energy Terminals Holdings, LLC 3900 Essex Lane Suite 700, Houston, Texas 77027 dana.love@zenithterminals.com Re: Oil Pipeline Franchise Transfer from Pacific Terminals to Zenith Energy Terminals Dear Mr. Love: Until recently, Plains Terminals held the Oil Pipeline Franchise the City of Huntington Beach originally granted in 2004 pursuant to City Ordinance No. 3654 (the "Franchise"). I am in receipt of your February 25, 2021 letter notifying the City that Zenith Energy Terminals Holdings closed its transaction with Plains to acquire the Pipeline Franchise. I expect that you are well aware that Zenith closed this transaction in violation of Huntington Beach Municipal Code Section 3.44.210 and Section 1.9 of the Franchise, both providing that the Franchise is subject to forfeiture if the Franchisee directly or indirectly sells or assigns the Franchise without written approval of the City Council. Further, after investigating the situation upon receipt of your letter, I discovered that in January 2020, over a year before your letter to the City, Zenith applied to the California Public Utilities Commission("CPUC") for approval of the sale. Even when the CPUC approved the transfer on August 6, 2020, Zenith took no action to notify the City. At a minimum, before the City may consider approving the Franchise Transfer, Zenith must comply with the existing terms and conditions of the Franchise. In particular, Zenith must pay its 2020 Franchise Fee of$25,942.24. The City also determined that in the past, Plains underpaid the Franchise Fee by rounding downwards the statutory base rate of$0.264 per foot specified at Public Utilities Code Section 6231.5(a)(4)to $0.26 per foot. The City applied the correct base rate of$0.264 per foot to calculate the CPI adjusted, 2020 rate. Please pay the $25,942.24 to the City within 14 days of this letter. Please send this check, and all future checks to the City of Huntington Beach, City Treasurer, 2000 Main Street, Huntington Beach, CA 92648. 21-9448/254642/SFF Re: Oil Pipeline Franchise Transfer from Pacific Terminals to Zenith May 20, 2021 Page 2 Further, Section 2.4 of the Franchise specifies the general liability, pollution, business and auto insurance policies the Franchisee must obtain. Please arrange for Zenith to submit to the City the required policies with endorsements naming the "City and its officers, elected and appointed officials employees, agents and volunteers" as additional insureds. Please note that in no case may the deductible exceed $10,000. Please submit these policies within 21 days to William Krill, Administrative Analyst, 2000 Main Street, Huntington Beach CA 92648. In addition, in compliance with Franchise Section 2.5, Zenith must submit to Mr. Krill within 21 days of this letter the required letter of credit or surety bond. Finally, Section 3.44.210 of the City Municipal Code provides that as a condition to the consenting to the assignment of an oil pipeline franchise,the Council "may impose such additional terms and conditions"upon Zenith"which the Council may deem to be in the public interest, and that such additional terms and conditions shall be expressed by Council Resolution." Accordingly, the Public Works Director is prepared to recommend to the City Council that it approve the Franchise transfer subject to the conditions set forth in the enclosed Resolution. Before presenting the Resolution to the City Council, I am presenting it to you for comment. Briefly, the first key provision of the Resolution is that Section 1.A of the Resolution imposes a$10,000 penalty on Zenith in lieu of declaring a forfeiture for failing to obtain City approval prior to closing the assignment from Plains to Zenith. Section IA also requires Zenith to pay the City $5,000 for the cost of processing the transfer of the Franchise. In addition,the City granted Plains a 15-year Franchise in 2004, and later extended the term to 2023. To account for inflation, Sections 6, 7, and 9 of the Resolution increase the minimum amounts of insurance,the letter of credit or surety bond, and liquidated damages. Please contact me within two weeks of the date of this letter regarding whether Zenith in is agreeable to the terms and conditions of this letter and the Assignment Resolution. Very truly yours, Michael Vigliotta Chief Assistant City Attorney Encl. Draft Resolution Approving Franchise Transfer Ordinance No. 3654 C: Ken Dills William Krill Delaware Page 1 The First State I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "PLAINS WEST COAST TERMINALS LLC", CHANGING ITS NAME FROM "PLAINS WEST COAST TERMINALS LLC" TO "ZENITH ENERGY WEST COAST TERMINALS LLC", FILED IN THIS OFFICE ON THE FIFTEENTH DAY OF OCTOBER, A.D. 2020, AT 4:58 O'CLOCK P.M. WWI*,w,*Wow*.twwWwrrtuft Wo 3497065 8100 ',� • Authentication:203873122 SR#20207856365 " Date: 10-15-20 You may verify this certificate online at corp.delaware.gov/authver.shtml State of Delaware Secretary of State Division of Corporations Delivered 04:58 PM 10115/2020 CERTIFICATE OF AMENDMENT FILED 04:58 PM 10/15/2020 TO SR 20207856365 - FiteNumber 3497065 CERTIFICATE OF FORMATION OF PLAINS WEST COAST TERMINALS LLC It is hereby certified pursuant to Section 18-202 of the Delaware Limited Liability Company Act that 1. The name of the limited liability company is Plains West Coast Terminals LLC. 2. The first paragraph of the Certificate of Formation of the limited liability company is hereby amended in its entirety to read as follows: "1. The name of the limited liability company farmed hereby is Zenith Energy West Coast.Terminals LLC." IN WITNESS WHEREOF,the undersigned has executed this Certificate of Amendment as of this 15th day of October.2020 >. 7 Dana ,Love Authorized Person OMM Us:79073779.1 iy ,I t1 - State of California ,/ , :,s, r Secretary of State .t aaa LIMITED LIABILITY COMPANY FILED APPLICATION FOR REGISTRATION in the Office ofthesecretary Ste CERTIFICATE OF AMENDMENT of the State ofCaliforn — JUN 012009 A$30.00 filing fee must accompany this form IMPORTANT—Read instructions before completing this form. This Space For Filing Use Only 1. Secretary of State File Number 20020 74 1 0087 2. Name under which this foreign limited liability company is conducting business in California: Pacific Terminals LLC 3. COMPLETE ONLY THE SECTIONS WHERE INFORMATION IS BEING CHANGED. ADDITIONAL PAGES MAY BE ATTACHED,IF NECESSARY. CONSULT THE INSTRUCTIONS BEFORE COMPLETING THIS FORM. A. The name under which this foreign limited liability company conducts business in California. (End the name with the words"Limited Liability Company,"or"Ltd.Liability Co.,"or the abbreviations"LLC"or"L.L.C.") Plains West Coast Terminals LLC B. The name of the foreign limited liability company has been changed as follows and has been recorded in the home state or country: Plains West Coast Terminals LLC C. State or country of formation of the foreign limited liability company,if false or erroneous at time of registration. r • . D. Date on which the foreign limited liability company was formed, if false or erroneous at time of registration. E. Address of the principal executive office: City State Zip Code F. Address of the principal office in California: City State CA Zip Code 4. Future effective date,if any: Month Day Year 5. Number of .ages attached,if any: 6. Decl- 4,-. -r.=?zereby declared that 1 am the person who executed this instrument,which execution is my act and deed. / /+ Tun Moore,Vice President Signs ire of Authorized Person . Typs or Print Name and Title of Authorized Person May 28,2009 Date RETURN TO: NAME 1— FIRM ADDRESS CITY/STATE L _I ZIP CODE SECISTATE(REV. 0212005) FORM LLC.ri—FILING FEE. Sao oo Approved by Secrula of Sinlo Somotely.of Wide Cam(LLC)- Name Change Amendment t Cl rittr-••a i rta FeNraacacia il.iba tore completing ttak farm. FILED flue be.aubatdtsd enh emoted*SOW.eviceencing thaa.npeee charge baled hY Secretary of State the sortammeatt+gen y>aihsta the U.ai»was forarted. Sea Inaeluctione. Fee — max State of California , NinaCopy� — Find p $1.04 ead�a.�pep$0 a5a; -OCT 1 C t�k'f Cedalltioll tee-$oo ttlele:You must files Sti era.M of kdor iatton(Form LL0-12,,)to mange the LL.C'a busies addrangea aria Menge the-rare or address ofirie iLLC s agent for aiel ,,r , IO of pmcaes.Statements (Form abon(Fo LLC-12)can be Med online at ICalataaelt.bagozal. I move Space For Me Use Only 1.ti.0 Exact None Used In California(Enter Manatee used in Caked'wady as Id on**remote tithe C ellorraiaa 8eorebry of Stew) Plains West Coast Terminals LLC 3.tLC U-O It Entity Number Wear Seined 1240 miles(Fie)Number reeled dime Wren*Seanetsry a Sias.) 2 © 0 2 0 7 4 1 fl - ' 8 7 3:NOW LLC Mora In threat.*Country,or.Ot er Ple.s.c 1,1,0 Formation grew LLC changed Ns Mane i011101011,SONOrt of bmedlen,Addle new U.0 name as Mad ch)aur reached caartirnete mblendrg the name change-) Zenith Energy West Coast Terminals LLC 4raitron*Atesaaai,gawk itRerperad Meeastnicacti-Cemplete either 40.44,44 4*.Ulltenititemete nine tD hominid Irn Cstfoiralaa k(1)the tic name ki lent 3 does notaao mpty with Celina*naming requhremenes or (2)you only are Mgt*ford to change en skating alternate name used in California Ust the a It mete name exactly as it is to appear on the.recc ds Or theCeltilbmieleixetny of State. 4b.Checkthi.box If you completed tern 3,above and U apptioebie. If you check this box,do not complete Sam 4a above or 44 below [,) This U.0 registered in Cal omia beta:January 1,2014;•lnurently transacts intrastate business in California underthe alternate name listed in Item 1 above;and upon tiara lair,will continue to transact*Mutate ate business In Callon*under the alternate name listed in Item 1 above. 40,_MyoUnliatkihis baps,+da tint Wavle*itetn4a or+4haabove. Q Che>atlt this bate if yOultre relinquishing.the California alternate name. Stanalere By signing,Leans nn tinder penalty of perjury that the information herein is trees and garnet and that i am authorized to sign on behead the taetart U.C. saillsonal a geslum.$t faith on attached p Vary.am Incorporated herein by reference and made part otitis Form U.C4.(All attachments should ball Tea x If,axae4ld.d,legible and dearly marked as anneadurient to this Form ilea) • .. Dana D. Love Type or Pdiit Name U04111l,mnO10) 241/CCifogriaa dread. . . Delaware Page 1 The First State I, ✓zJ2ZiEY W. BULLOCK, SECRETARY OP STATE OP THE STATE OF DELAWARE, DO 1RERESY CERTIFY TEAT THE SAID 'PLAINS WEST COAST TERIENALS LLC', FILED A CERTIFICATE OP AMBNZNT, CHANGING ITS NAME TO 'ZENITH ENERGY WEST COAST TERMINALS LLC" ON THE PIJ TEENTH DAY OF OCTOBER, A.D. 2020, AT 4:58 O'CLOCK P.M. ' " '414*, °P. 1 � 41/ -v. 3497065 8320 `"fit *'T' Authentication:203873327 SR#20207857001 ;'_'_— Date: 10-15-20 You may verify this certificate online at corp.deiaware.gov/authvershtml 2 r) el 7 />')ti 1 r,,.ti Q AlWie- Secretary of State LLC-12 20-B39750 t.:arlt Statement of Information f. ' (Limited Liability Company) FILED In the office of the Secretary of State IMPORTANT—Read instructions before completing this form. of the State of California Filing Fee—$20.00 MAR 25, 2020 Copy Fees—First page$1.00;each attachment page$0.50; Certification Fee-$5.00 plus copy fees This Space For Office Use Only 1. Limited Liability Company Name(Enter the exact name of the LLC. If you registered in California using an alternate name,see instructions.) PLAINS WEST COAST TERMINALS LLC 2. 12-Digit Secretary of State File Number 3. State,Foreign Country or Place of Organization(only if formed outside of California) 200207410087 DELAWARE 4. Business Addresses a.Street Address of Principal Office-Do not list a P.O.Box City(no abbreviations) State Zip Code 333 CLAY STREET, STE 1600 HOUSTON TX 77002 b.Mailing Address of LLC,If different than Item 4a City(no abbreviations) State Zip Code 333 CLAY STREET,STE 1600 HOUSTON TX 77002 c.Street Address of California Office,if Item 4a is not in California-Do not list a P.O.Box City(no abbreviations) State Zip Code CA If no managers have been appointed or elected,provide the name and address of each member.At least one name Rad address 5. Manager(s)or Member(s) must be listed.If the manager/member is an individual,complete Items 5a and 5c(leave Item 5b blank). If the mananerr/ ber is an entity complete Items 5b and Sc(leave Item 5a blank). Note: The LLC cannot serve as its own manager or member. If the LLC has additional managers/members,enter the name(s)and addresses on Form LLC-12A(see instructions). a.First Name,if an individual-Do not complete Item 5b Middle Name Last Name Suffix b.Entity Name Do not complete item 5a PLAINS MARKETING, L.P. c.Address City(no abbreviations) State Zip Code 333 CLAY STREET, STE 1600 HOUSTON TX 77002 6. Service of Process(Must provide either Individual OR Corporation.) INDIVIDUAL—Complete Items 6a and 6b only. Must include agents full name and California street address. a.California Agent's First Name(if agent is not a corporation) Middle Name Last Name Suffix b.Street Address(If agent is not a corporation)-Do not enter a P.O.Box City(no abbreviations) State Zip Code CA CORPORATION—Complete Item 6c only. Only include the name of the registered agent Corporation. c.California Registered Corporate Agent's Name(if agent is a corporation)—Do not complete Item 6a or 6b CORPORATION SERVICE COMPANY WHICH WILL DO BUSINESS IN CALIFORNIA AS CSC-LAWYERS INCORPORATING SERVICE (C1592199) 7. Type of Business a.Describe the type of business or services of the Limited Liability Company Liquids storage,terminalling& 8. Chief Executive Officer,if elected or appointed a.First Name Middle Name Last Name Suffix b.Address City(no abbreviations) State Zip Code 9. The Information contained herein,including any attachments,is true and correct. 03/25/2020 RICHARD K. MCGEE SECRETARY Date Type or Print Name of Person Completing the Form Title Signature Return Address(Optional)(For communication from the Secretary of State related to this document,or if purchasing a copy of the filed document enter the name of a person or company and the mailing address.This information will become public when filed. SEE INSTRUCTIONS BEFORE COMPLETING.) Name: 1 1 Company: Address: City/State/Zip: L J LLC-12(REV 01/2017) Page 1 of 1 2017 California Secretary of State www.sos.ca.gov/business/be '"°`' LLC-12 20-E54036 �•` Secretary of State tiS'`=• ,t'�-,e �3- Statement of Information ►. (Limited Liability Company) FILED °°tfF 0$ In the office of the Secretary of State IMPORTANT—Read instructions before completing this form. of the State of California Filing Fee—$20.00 NOV 10, 2020 Copy Fees—First page$1.00;each attachment page$0.50; Certification Fee-$5.00 plus copy fees This Space For Office Use Only 1. Limited Liability Company Name(Enter the exact name of the LLC. If you registered in California using an alternate name,see instructions.) ZENITH ENERGY WEST COAST TERMINALS LLC 2. 12-Digit Secretary of State File Number 3. State,Foreign Country or Place of Organization(only If formed outside of California) 200207410087 DELAWARE 4. Business Addresses a.Street Address of Principal Office-Do not list a P.O.Box City(no abbreviations) State Zip Code 3900 Essex Lane, Suite 700 _Houston TX 77027 b,Mailing Address of LLC,if different than item 4a City(no abbreviations) State Zip Code 3900 Essex Lane,Suite 700 Houston TX 77027 c,Street Address of California Office,If Item 4a is not in California-Do not list a P.O.Box City(no abbreviations) State Zip Code CA If no managers have been appointed or elected,provide the name and address of each member.At least one name and address 6. Manager(s)or Member(s) must be listed.If the manager/member is an individual,complete Items 5a and 5c(leave Item 5b blank). If the manager/member is an entity,complete Items 5b and 5c(leave Item 5a blank). Note: The LLC cannot serve as its own manager or member, if the LLC has additional managers/members,enter the name(s)and addresses on Form LLC-12A(see instructions). a.First Name,if an individual-Do not complete Item 5b Middle Name Last Name Suffix b.Entity Name-Do not complete Item 5a Zenith Energy Terminals Holdings LLC c.Address City(no abbreviations) State Zip Code 3900 Essex Lane, Suite 700 Houston TX 77027 6. Service of Process(Must provide either Individual OR Corporation.) INDIVIDUAL—Complete Items ea and 6b only. Must include agent's full name and California street address. a.California Agent's First Name(if agent is not a corporation) Middle Name Last Name Suffix b.Street Address(If agent Is not a corporation)-Do not enter a P.O.Box City(no abbreviations) State Zip Code CA CORPORATION—Complete Item 8c only. Only include the name of the registered agent Corporation. c.California Registered Corporate Agent's Name(if agent is a corporation)—Do not complete item fia or 6b C T CORPORATION SYSTEM (C0168406) 7. Type of Business a,Describe the type of business or services of the Limited Liability Company Operates Terminals for petroleum storage 8. Chief Executive Officer,if elected or appointed a.First Name Middle Name Last Name Suffix Jeffrey R. Armstrong b.Address City(no abbreviations) State Zip Code 1 Highland Avenue Metuchen NJ 08840 9. The Information contained herein,including any attachments,is true and correct. 11/10/2020 Dana D. Love Secretary Date Type or Print Name of Person Completing the Form Title Signature Return Address(Optional)(For communication from the Secretary of State related to this document,or if purchasing a copy of the filed document enter the name of a person or company and the mailing address.This information will become public when filed. SEE INSTRUCTIONS BEFORE COMPLETING.) Name: 1 1 Company: Address: City/State/Zip: L J LLC-12(REV 01/2017) Page 1 of 1 2017 California Secretary of State www.sos,ca.gov/business/be Oil Pipeline Franchise Ownership Timeline Zenith Energy • 1958-2003: South California Edison Owned the Franchise subject to Ordinance 687. • 2003-2009: Pacific Terminals LLC acquired Franchise from SCE,as documented by Ordinance 3654. • 2009—2020: Pacific Terminals LLC changes name to Plains West Coast Terminals LLC. • 2020—Present: Plains West Coats Terminals LLC changes name to Zenith Energy West Coast Terminals LLC ?Z, .,&1 L- S �� V., PLAINS West Coast Terminals LLC Date: June 3, 2009 Certified Mail RRR 7005 0390 0004 8249 5916 City of Huntington Beach Joan L. Flynn, City Clerk 2000 Main Street Huntington Beach, CA 92648 Re: Name and Ownership Change for Pacific Terminals LLC Ladies and Gentlemen: Effective June 1, 2009, Pacific Terminals LLC ("Pacific Terminals") changed its name to Plains West Coast Terminals LLC and became a direct subsidiary of Plains Marketing, L.P. instead of Pacific Energy Group LLC. Our operations, people and services remained unchanged. Attached is a copy of the Certificate of Name Change. The records of Pacific Terminals indicate that it is a party with you to the Agreement[s] listed in Exhibit A. This letter is being sent to you as a courtesy and for informational purposes only. After the name change, Plains West Coast Terminals LLC will remain as the same legal entity that existed while the company was known as Pacific Terminals LLC. The change to the Plains West Coast Terminals LLC name will require no action on your part other than to change our company name on your records. To that end, please replace the notice provisions of the Agreement[s] with the following information: Plains West Coast Terminals LLC 333 Clay Street, Ste. 1600 Houston, TX 77002 Attention: Land Department Phone: 713-646-4100 Facsimile: 713-646-4146 with a copy to: Plains All American Pipeline, L.P. 333 Clay Street, Ste. 1600 Houston, TX 77002 Attention: Lawrence J. Dreyfuss, Vice President Phone: 713-646-4100 Facsimile: 713-646-4216 333 Clay Street,Suite 1600(77002) ■ Houston,Texas 77210-4648 ■ 713-646-4100 Please note that this change did not impact our ongoing organization or operations and our tax identification number, storage assets, services, addresses, contracts and commitments remain the same as before. Further, the ultimate ownership of Pacific Terminals LLC did not change because Plains All American Pipeline, L.P. is both the parent of Plains Marketing, L.P. and Pacific Energy Group LLC. Please update your records to reflect our new name Plains West Coast Terminals LLC. We look forward to continuing our business relationship with you under our new name. Please acknowledge receipt of this letter by signing in the signature blank below and return one original to the undersigned in the enclosed reply envelope at your earliest convenience. Please retain the other original for your records. If you have any questions regarding this notice or the matters set forth herein, please contact Eileen Wilson Kisluk at 713-993-5203 or visit our web site at http://www.paalp.com should you need more information about our company. Thank you for your attention in this matter. Very truly yours, Plains West Coast Terminals LLC By: Name: L. Richard Gilbert Title: Manager, Land and Contracts The undersigned hereby acknowledges receipt of the foregoing Notice this 23rd day of June , 2009. City of Huntington.Beach By: Name: Joan L. Flynn Title: City C1_-erk Attachments: Certificate of Name Change Agreement(s) cc: James Jacoby Steven Kaplan Exhibit A—List of Agreement(s) File Grantor/ Grantee/ Agreement Agreement Agreement Legal Description County,State Number Assignor Assignee —Type Date Number 03-0205 City of Pacific FRANCHISE 6/21/2004 Ord# Generally along the following route: Orange, CA Huntington Terminals 3654 1- southerly along Bolsa Chica Beach LLC Street from and including the intersection of Bolsa Chica Street and Westminster Ave to Warner Ave; 2- easterly along Warner Ave to and including the intersection of Warner Ave and Edwards Street; 3- southerly along Edwards Street to and including the intersection of Edwards Street and Garfield Ave; 4- easterly along Garfield Ave to and including the intersection of Garfield Ave and Newland Street; 5- southerly along Newland Street from the intersection of Newland Street and Garfield Ave to Pacific Coast Highway. Delaware PAGE 1 die First State I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "PACIFIC TERMINALS LLC", CHANGING ITS NAME FROM "PACIFIC TERMINALS LLC" TO "PLAINS WEST COAST TERMINALS LLC", FILED IN THIS OFFICE ON THE FIRST DAY OF JUKE, A.D. 2009, AT 12:48 O'CLOCK P.M. GPE�PRY'S R, ead o Jeffrey W Bullock,Secretary of State 3497065 8100 o �� AUTHEN C TION: 7332487 SV, 1yh 090570815 o�FIAw DATE: 06-01-09 You may verify this certificate online at corp.delaware.gov/authver.shtml State of Delaware Secretary of State Division o{Corporations Delivered 12:57 PM 0610112009 FILED 12:48 PM 0610112009 SRV 090570815 - 3497065 FILE STATE OF DELAWVARE CERTIFICATE OF AMENDMENT 1. Name of Limited Liability Company: Pacific Terminals LLC 2. The Certificate of Formation of the limited liability company is hereby amended as folloWs:The name of the limited liability company is Plains West Coast Terminals LLC, effective as of June 1,2009. IN WITNESS WHEREOF,the undersigned have executed this Certificate on the 28th day of May , A.D. 2009 By: Authorized Person(s) Name: Tim Moore,Vice President Print or Type a. ORDINANCE NO. 3654 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH GRANTING AN OIL PIPELINE ,FRANCHISE TO PACIFIC TERMINALS.LLC WHEREAS,on April 7, 1958 by adoption of Ordinance No. 687,the City Council of the City of Huntington Beach granted to the Southern California Edison Company ("Edison") a pipeline franchise(the "1958 Franchise");and On March 22, 2002, Edison and Pacific Terminals LLC, a California limited liability company ("Pacific Terminals," "Pacific"or "Franchisee") filed an Application ("A. 02-03-035") before the California Public Utilities Commission("CPUC")requesting the CPUC to approve the sale of certain assets from Edison to Pacific; and The assets subject to the sale include the 1958 Franchise; and On July 10,2003,the CPUC approved with conditions A.02-03-035; and Pacific Terminals has applied to the Director of Public Works of the City of Huntington Beach for City,consent to:the transfer of the 1958 Frarichise�to Pacific; and The City Council hereby consents to the transfer by way of this new Franchise to Pacific Terminals. By accepting this Franchise, Pacific Terminals hereby relinquishes any interest in the 1958 Franchise. By granting this Franchise, City does not release Edison from any claims the City presently has or may have in the future against Edison or any entity owned or controlled by Edison. NOW, THEREFORE, the City Council of the City of Huntington Beach does ordain as follows: Part One General Provisions. Section 1.0 Grant of Franchise. Pursuant to Chapter 3.44 of the Municipal Code of the City of Huntington Beach, the City hereby grants a non-exclusive oil pipeline franchise (the "Franchise") to Pacific Terminals LLC to lay, operate, maintain, use, renew, repair, replace, move, change the size and number of and remove or abandon in place a system of pipelines, together with such valves,fittings,manholes, vaults,pumps and other appliances, appurtenances, attachments or equipment as the Franchisee may deem necessary or convenient for the purpose of conducting, transporting, conveying and carrying oil and petroleum, extending generally along the following route: (1) southerly along Bolsa Chica Street from and including the intersection of Bolsa Chica Street and Westminster Avenue to Warner Avenue;(2)easterly along Warner Avenue to and including the intersection of Warner Avenue yy d EdWards Street; (3) g/OJ ord/pacific terminals/4/8/04 ___1W01511511587 __ W southerly along Edwards Street to and including the intersection of Edwards Street and Garfield Avenue; (4) easterly along Garfield Avenue to and including the intersection of Garfield Avenue and Newland Street; (5) southerly along Newland Street from the intersection of Newland Street and Garfield Avenue to Pacific Coast Highway, all as more particularly depicted as Exhibit A attached hereto.. In the event that the provisions of Chapter 3.44=and this Franchise conflict;the provisions of this Franchise shall apply. This Franchise only authorizes the transportation of oil and petroleum; the Franchise does not authorize the transportation of any other hazardous or non-hazardous substance, including but not limited to natural gas and water. ab4 As of the Effective Date,the diameter of the existing pipeline is 12" inches with a length of 42,830.22 and 20" with a length of 1,463.75 feet . This size shall be used for purposes of calculating the Franchise Fee pursuant to Section 3.1(a). Franchisee shall give the City ninety (90)days notice of any change in the size of the pipeline. Section 1.1 Definitions. For the purpose of this Franchise,the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. "Shall" is man atory an "may" is.permissive (a) "Applicable Law" shall mean all present or future Federal, State,City, or other locale laws, rules, regulations, franchises, codes, orders, permit requirements,judgments, injunctions, or decrees, or any judgment or order or decree by a court applicable to the Franchisee or any of Franchisee's Facilities or activities. Applicable Law includes all Municipal Code requirements for pipeline franchises, encroachment permits, excavation permits, and any other permit or. agreement as required by the Code for any construction performed within the public right-of-way or within the public utility easements or public service easements located on private property, including but not limited to Chapters 3.44 and 12.13 of the Municipal Code. (b) "City"shall mean the City of Huntington Beach,a municipal corporation. �c) 'City ' Y Clerk":shall mean the City.Clerk.of the City of Huntington Beach,� (d) "City Council"shall mean City Council of the City of Huntington Beach. (e) "City Property"shall mean the property or facilities owned by the City of Huntington Beach or property owned by any of the City's affiliated agencies. (f) "Claims" shall mean all claims, losses, liabilities, causes of action, demands, damages, suits,judgments, debts, costs, contribution or indemnity, expenses (including but not limited to attorney's fees and costs) fines, penalties,judgments, orders, injunctions and liens of every kind and nature, including, but not limited to, claims relating to any Environmental 2 as g/04 oWpacific terminals/4/8/04 2 SUMMED 0 Condition or any Release of any Contaminant, claims for personal or bodily injury, wrongful death, injury to real or personal property, natural resources damages, and including claims based on active or passive negligence, gross negligence, contractual, statutory or strict liability, or otherwise, and any claims seeking judicial or administrative relief, or relating to any administrative. proceedings by any.governmental. agency,.whether or not any such claim is ultimately;defeated (h) "Contaminant" shall mean any material, substance or constituent originating from Franchisee's facilities or activities, whether solid, liquid, semisolid, or gaseous in nature, including any hazardous substance or waste, hazardous material, chemical compound,petroleum (or fraction thereof), or any hydrocarbon substance, pollutant or contaminant, as those terms are defined by any federal,state or local law,rule,regulation or order. (i) "Day"shall mean calendar day unless otherwise provided. 0) "Department" shall mean the Public Works Department of the City of Huntington Beach. (k) "Director" shall mean the Director of the Department of Public Works of the City of Huntington Beach, or his written designee. (1) "Effective Date" is July 31, 2003, the 'date that Pacific Terminals closed escrow on Up acguisitionof the Facilities.from Edison:' ao (m) "Environmental Condition" shall mean the presence or evidence of the likely presence of any Contaminant originating from Franchisee's Facility (s) or from Franchisee's activities, in surface water, ground water drinking water supply, soil, land surface, subsurface strata or the air. (n) "Facility"or"Facilities"shall mean a system of pipelines,together with such valves, fittings, manholes,vaults, pumps and other appliances, appurtenances, attachments or equipment as the Franchisee may deem necessary or convenient for the purpose of conducting,transporting, conveying and carrying oil and petroleum under and across the public streets, ways, alleys and places within the City of Huntington Beach. (o) "Fire Chief"shall mean the Chief of the Huntington Beach Fire Department. (p) "Franchise" shall mean this Ordinance granting a Franchise to Pacific Terminals LLC,unless some other franchise is specified. (q) "Franchisee"shall mean Pacific Terminals LLC and its successors and assigns. (r) "Franchise Payment Period"shall mean the time period between the Effective Date of this Franchise and December 31 of the same year, and each calendar year thereafter, during the life of the Franchise. win A g/04 ord/pacific terminals/4/8/04 3 SuWNEL) Y (s) "Franchise Report Period" in all cases shall mean the time period between the Effective Date of this Franchise through and including December 31 of that year, and each calendar year thereafter,during the life of the Franchise. (t) "Municipal.Code'.'shall mean the.Municipal Code of the.City.of Huntington Beach. (u) "Person"shall mean any individual:*person, firm;partnership or'corporation. (v) "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)3), 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)1), or any discharge, active or passive migration, deposit, storage, burial, emplacement, seepage, filtration or disposal of a Contaminant into the environment originating from any Facility or from Franchisee's activities. (w) "Remediation Costs" shall mean all costs and expenses, including the City's current rate of overhead, incurred by the City in performing and monitoring any Remedial Work. (x) "Remedial Work" means all "Remedial Action", as that term is defined in Section 101(24) of CERCLA [42 U.S.C. §9601), and all other actions as are necessary or required to remediate a Release of any Contaminant or an Environmental Condition to a condition which would allow unimpaired and unrestricted use and development and would comply with Applicable Law;and mcluding-but r►ot limitedlo all actions necessary-to Respond to,Remove,--or. :Remedy, as hose terms are defned..in Sections 101(23). 101(24) and 1.01(25) of.CERCLA [42. . U.S.C. §96011,a Release of a Contaminant or Environmental Condition. (y) "Street" shall mean any street, road, highway, alley, lane or court or other public easement, which now exists or may hereafter exist in the City of Huntington Beach and in which the City has the authority to grant a Franchise. Section 1.2 Facilities: Encroachment Permits. Franchisee may not perform any work on the Facilities without obtaining an encroachment permit from the Director pursuant to Chapter 12.13 of the Municipal Code. Franchisee further acknowledges that Section 3.44.380 of the Municipal Code does not authorize installation of above-ground appurtenances pursuant to this Franchise. Notwithstanding Section 3.44.380, Franchisee may apply for an encroachment ' ` permit to install above-ground:appurtenances, which the Director.may grant in his reasonable •discretion: . Section 1.3 Term. The Franchise Term shall begin on the Effective Date and terminate fifteen(15)years after the Effective Date,on July 31,201 S. The Director is hereby authorized to enter into a memorandum of understanding with Pacific Terminals memorializing the Effective Date and termination date of this Franchise, which memorandum shall be filed with the City Clerk. No later than 120 days before expiration of the term of this Franchise, Franchisee may apply in writing to the Director for a f ve-year extension of the Franchise. If the Director finds that, throughout the term of this Franchise, Pacific has been in substantial and material compliance with all the terms of this Franchise, he shall extend the Franchise without further @/04 ord/pacific tcrminals/4/8/04 4 City Council approval. The Director's decision to extend or not extend the Franchise may be appealed to the City Council by any person within fourteen (14)days of the Director's decision. A second five-year extension of this Franchise may be granted pursuant to the above procedures. Section 1.4..Acceptance of Franchise. The Franchisee.shall, within thirty(30):days after ...'the:passage of.this Ordinance;file with the City.Clerk of the City of Huntington Beach:written; acceptance'of the terms and 'conditions'of this Franchise in the form set forth in`'Exhibit B; attached hereto. The Franchisee shall accept the Franchise within the designated time. The Franchise shall be null and void if the written acceptance is not filed within the prescribed time. Section 1.5 Nonexclusive Franchise. The granting of this Franchise shall not prevent the City from granting any identical or similar franchise to any Person other than the Franchisee. Section 1.6 Change in Status. If the Franchisee no longer qualifies before the Public Utilities Commission of the State of California as a common carrier, the Franchisee shall then have no right to continue to operate hereunder after the date of such disqualification, except with the consent of the Council granted upon such additional terms and conditions as the Council may deem proper. Such additional terns and conditions shall be expressed by Ordinance. Section 1.7 Forfeiture. The Franchise is granted and shall be held and enjoyed upon each and every condition contained in this Franchise and shall be strictly construed against the Franchisee. The Franchise shall grant only those rights that are stated in plain and unambiguous terms.•Failure:or.refusal.to comply with an .of the:conditions of.the Franchise, including the: failure to comply with any Applicable La iv .shall .constitute:grounds for the suspension or forfeiture of the Franchise in accordance with the terms and procedures specified in Part Five. Section 1.8 Eminent Domain. The Franchise granted hereunder shall not in any way to any extent impair or affect the right of the City or any successor to acquire the property of the Franchisee 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 abridge, either for a term or in perpetuity, the City's rights of eminent domain before any court or other public authority in any proceeding of any character. Section 1.9 Assignment. The Franchisee shall not directly or indirectly sell, transfer, assign or lease the Franchise or any part thereof, or allow another Person or entity to operate any .pipeline or related Facility subject'to the` Franchise, except with..the.consent of the Council; which:consenf shall:not be:unreasonably withheld...Such "sale, transfer, assignment.lease or` agreement shall be made only by filing with the Council a copy of the duly executed instrument of such sale, transfer, assignment lease or agreement and a written request for the consent of the Council to such sale, transfer, assignment, lease or agreement. If such duly executed instrument and such written request is not filed with the Council before the expiration of sixty (60) days after the effective date of such sale, transfer, assignment or lease, then, upon the expiration of said sixty (60) days, the Franchise shall be subject to forfeiture and the Council may, without notice, by Ordinance,repeal the Franchise. As a condition to the granting of consent to such sale, transfer, assignment, lease or agreement, the Council may impose such reasonable additional terms and conditions upon the Franchise and upon the Franchisee or assignee,which the Council g/04 ord/pacific terminaW4/8/04 5 SCANNED may deem to be in the public interest. Such additional terms and conditions shall be expressed by Ordinance. The Franchisee shall have no right to sell, transfer, assign or lease the Franchise, or any part thereof,except in the manner aforesaid. This Section applies to any assignment,whether by operation of law, by a voluntary act of the Franchisee or otherwise, and includes a transfer of more than fifty percent.(50%) of the voting.stock.of any corporate,grantee or the change in identity of any general partner of a Franchisee which is a partnership, whether to a third patty or to any subsidiary,parent,or affiliatedagency of Franchisee. Section 1.10 Prior Franchises. All Facilities erected, constructed, laid, operated or maintained by the Franchisee in the streets, whether installed by the Franchisee or not, prior to the Effective Date of this Franchise shall become subject to all the terms and conditions of this Franchise upon such Effective Date. Section 1.11 City Officers. Any right or power conferred, or duty imposed upon any officer, employee or Department of the City shall be subject to transfer to any other officer, employee, or Department of the City. Section 1.12 Severability. If any part of this Franchise or the application thereof to any Person or circumstances is for any reason held invalid by a court of competent jurisdiction, the validity of the remainder of the Franchise or the application of such provision to other Persons or circumstances shall not be affected. Sectiori 1:13 Release:of.Products.or Contamirrarits:; Notwithstanding Any other;provision liere>ri, in the event of Release :of a'Confaminarit by Franchisee..or .from anv.'Facility of Franchisee or the discovery of an Environmental Condition caused by Franchisee or any Facility of Franchisee, Franchisee shall immediately conduct such Remedial Work and pay all Remediation Costs, at its sole expense, as is necessary to fully mitigate and remediate the same in accordance with all Applicable Law, and as directed by the City except to the extent that City direction conflicts with Applicable Law. In the event that Franchisee fails to perform necessary remediation work, City may impose liquidated damages and/or Franchise termination pursuant to Part 5 of this Franchise, or take an), other legal action the City deems appropriate in the circumstances. Section 1.14 Compliance With Applicable Law. Until such time as (i) the Franchise terminates; and(ii)the Franchisee removes all of its Facilities; and(iii)completes any necessary Remedial Work,Franchisee will._comply with all Applicable Law. Section 1.15 Notices and Records. Upon request, Franchisee will transmit to City copies of all notices, orders or statements, other than those relating to taxes, sent to or received from any governmental agency concerning any Facility or any operations conducted by Franchisee in the City pursuant to the Franchise. Upon request,Franchisee shall send to the City copies of requested documents concerning any Facility or any operations conducted by Franchisee pursuant to the Franchise sent to any other governmental agency concurrently with sending them to the other agency and shall send to City documents received by Franchisee within five days of receipt by Franchisee unless providing documents to City would conflict with Applicable Law. SCANNED g/04 ord/pacific terminals/4/8/04 6 Section 1.16 Access to Records and Property. Upon request,the Franchisee shall permit the City or its duly authorized representative to examine all of Franchisee's Facilities, together with any appurtenant property of the Franchisee, and to examine and transcribe any and all books, accounts, papers, maps,_and,other records kept,or maintained by the:Franchisee or under its control which concern.ihe operations; affairs; transactions or property of the Franchisee' wrth. , . respect thereto: Said records shall be made available to `the City`at a location in either the County of Orange or the County of Los Angeles. Section 1.17 Removal or Abandonment of Facilities. Subject to Applicable Law, at the time of the expiration (unless extended), revocation, or termination of this Franchise, or the permanent discontinuance of the use of its Facilities,or any portion thereof,the Franchisee shall, within thirty (30) days thereafter make written application to the Director and to the City Fire Chief for authority to either abandon all or a portion of such Facilities in place or to remove all or a portion of such Facilities. Thereupon the Director and the Fire Chief jointly and unanimously shall determine whether any abandonment or removal which is thereby proposed may be effected without detriment to the public interest or under what conditions such proposal of abandonment or removal may be safely affected and shall then notify the Franchisee according to such requirements as shall be specified in the Director's order. In order to make their determination, the Director and the Fire Chief may require the Franchisee to pressure test the Facilities, to complete a sample testing program requiring borings and physical examination of the integrity of the Facilities, and such other steps as they deem reasonable. The Franchisee shall.pay to-the City the cost of all tests`required:"t .-determine whether .the;Facilities shall::be abandoned:or:removed::' Within ninety(90)days after receipt of the Director's and Chief s order,Franchisee shall, pursuant to such order, remediate the soil surrounding the Facilities pursuant to the standards of Applicable Law, and either(a) remove all or a portion of such Facilities; or(b) abandon in place all or a portion of such Facilities in accordance with all conditions prescribed. If any Facilities to be abandoned in place, subject to prescribed conditions, shall not be abandoned in accordance with all of such conditions, then the Director may make additional appropriate orders, including if deemed appropriate,an order that the Franchisee shall remove all such Facilities. If the Director and Fire Chief approve abandonment in place of all or part of the Facilities, the Franchisee shall pay to the City a fee in the amount the Director reasonably determines to be equal io one=half of thecost of removal of the Facilities' Section 1.18 Appeal. Any decision made by the Director pursuant to authority delegated in this Franchise may be appealed by any person to the City Council. For purposes of seeking judicial review, the decision of the City Council shall be final when notice of the decision is mailed by first class mail to the Franchisee. D g/04 ord/pacific terminals/4/8/04 7 a Part Two Liability Indemnification and Insurance ,Section 2.1 Liability. The Franchisee shall be liable to the City for damage to City property, including but not.limited to any street, or anyother cost incurred by the City caused by. Franchisee, any.of.Franchisee's Facilities or by any Person acting on Franchisee.'s behalf' The' Franchisee shall lie held"to a standard of strict liability to"City for any activity conducted pursuant to or in connection with the Franchise. The Franchisee's strict liability shall extend to any consequential damages incurred by the City, and to any costs, including Remediation Costs, incurred by the City for control or abatement of any Environmental Condition, Release of Contaminants, Remedial Work or resulting from any activity conducted by or on behalf of Franchisee pursuant to the Franchise. Section 2.2 Dama a to o City Property. Any damage done to City property by Franchisee in exercising any right,power, or privilege under this Franchise,or in performing any duty under or pursuant to the provisions of this Franchise, shall be promptly repaired by Franchisee at its sole cost and expense to as good a condition as it was before such damage was incurred, to the satisfaction of the Director. If the Franchisee, within ten(10)days after receipt of written notice from the City, instructing it to repair such damage, shall fail to commence to comply with such instructions, or, thereafter, shall fail diligently to prosecute such work to completion, then the City immediately may do work necessary to carry out said instructions at the cost and expense of the Franchisee, which cost and expense, by the acceptance of the Franchise, the Franchisee a`re: to. av u on deniand. :Ifsuch damage constitutes,an immediate.danger to the.public.health or_safety requiring the imrnediafe repair tleceof,'the City without notice may repair,such damage and the Franchisee agrees to pay all costs incurred. Section 2.3 Indemnification. The Franchisee shall indemnify to the fullest extent permitted by law, and defend and hold the City, and its. Council members, employees, remediation consultants, environmental consultants, agents and attorneys free and harmless from and against all Claims arising from or in any way related to the Franchise or activities conducted by or on behalf of Franchisee. The City and the other parties indemnified herein shall have the right to approve the attorneys selected by Franchisee to represent them. In the event Franchisee does not provide attorneys acceptable to the indemnified parties, the indemnified parties may select attorneys of their choice, so long as the attorney's rates do not exceed the lesser of the rates the indemnified parties or the Franchisee pays for other legal services. The indemnity provided herein shall survive he expiration or.other termination of the Franchise. Section 2.4 Insurance. Franchisee shall for the duration of this Franchise, at Franchisee's sole cost and expense, keep or cause to be kept in full force and effect, for the mutual benefit of City, its officers, elected or appointed officials, employees, agents and volunteers,and Franchisee,the following insurance coverages: (a) A comprehensive form of commercial general liability insurance, including but not limited to coverage for liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and protecting against claims, liability and defense costs VO4 orNpacific certninals/4/8/04 8 5CANNED arising from Franchisee's exercise of the rights granted by this Franchise, including the use,construction, and/or maintenance of the Facilities authorized by this Franchise,of at least three million dollars($3.000,000)per occurrence. (b} Pollution legal liability coverage applicable to bodil in.ur property dama e, . g PP. .. - Y � 1 Y� R P .. y g. cleanup costs, and defense, including costs :and expenses tncurred in. the- investigation., defense, or settlement of claims, all in connection with, any - pollution loss arising from the Facilities. Coverage shall be maintained in an amount of at least two million dollars ($2,000,000) per loss, with an annual aggregate of at least ten million dollars($10,000,000). (c) Business auto insurance covering Franchisee's owned, non-owned and hired vehicles, with limits of not less than three million dollars ($3,000,000) each accident. (d) Workers' compensation and employer's liability coverage as required by statute. aAll insurance required by provisions of this Franchise shall be carried only in responsible insurance companies licensed to do business in the state of California and having a Best rating of no less than ANIL All such policies shall contain endorsements to the effect that(a)the insurer waives the right of subrogation against the City, including its elected officials, officers, employees and agents; (b) the policies are primary and noncontributing with any insurance that maybe tamed b the Cit c the cannot be cancelled :or. maferkill ..char ed .e tce :t'after . .. Y .- y> E ) Y Y p providing-no.less than thirty.days.:prior:written.notice to:the.City;:.and (d). the City; rts elected officials, officers and employees are named additional insureds under the commercial general liability and pollution legal liability policies. Franchisee shall fumish City with copies of all such policies promptly upon receipt of them, or certificates with endorsements evidencing the insurance, prior to exercising any of the rights granted by this Franchise. Thereafter, Franchisee shall provide evidence of renewal or replacement of a policy already in existence and required by this Franchise,no less than twenty days' prior to expiration or other termination of such policy. The liability policies required by this Section may provide for deductibles or retentions of up to Ten Thousand Dollars($10,000.00)per claim. Notwithstanding the foregoing, if the Franchisee submits appropriate assurances, and with the joint approval of the City's Director of.Public Works, Risk Manager and City Attorney; which may be denied in their reasonable discretion, the Aeductible maybe increased:up-te.Two Million Dollars($2,000,000.00). The Franchisee shall file with the City Clerk endorsement and certificates of insurance for each of the required policies executed by the company issuing the policy, certifying that the policy is in force and providing the following information with respect to said policy: (a) The policy number; (b) The date upon which the policy will become effective and the date upon which it will expire; Am Aft a g/04 ord/pacitic terminals/4/8/04 9 RANNEL) a (c) The names of the named insured and any additional insured; (d) Subject of the insurance; (e) The type of coverage provided by the insurance; (f) Amount of limit of coverage provided by the insurance; A description of all endorsements that form a part.of the.policy... The Franchisee shall not commence operations until Franchisee has complied with this Section.The Franchisee shall cease operations if the Franchisee fails to maintain said policies in full force and effect. In the event any policy is cancelled or reduced in amount or scope or coverage, the Franchisee shall provide the City, not later than fifteen (15) days prior to the effective date of the cancellation or reduction in coverage, a certificate of insurance showing that the Franchisee will have replacement insurance in full force and effect after the effective date of the cancellation or reduction in coverage and shall provide a certified copy of such replacement insurance meeting the requirements of this section. Not more frequently than once every two (2) years, if, in the sole opinion of City, the amount and/or scope of the above insurance is not adequate, Franchisee shall adjust the insurance coverage required under this Section as reasonably required by City. Section 2.5 Faithful Performance Letter of Credit. (1) Letter of Credit. The Franchise shall establish a letter of credit in the sum of Twenty Thousand Dollars ($20 000.00) :within forty five >(45.) days after`:ahe Effective Date:of this. Franchise: Theldterof credit shall.be`in'a form consistent with Exhibit C; attached:hereto: The City may draw on the letter of credit any amounts assessed as liquidated damages pursuant to Part Five. The Franchisee shall restore to the letter of credit any amount the City withdraws as liquidated damages,within thirty(30)days after the City withdraws the money. The Franchisee may provide cash or a cash equivalent in substitution of the letter of credit including without limitation a certificate of deposit or savings account, the rights of which have been signed over to the City. Any interest accrued on such cash or cash equivalent security shall be paid over annually to the Franchisee. Franchisee's recourse, in the event Franchisee believes any taking of funds from the Letter of Credit is improper, shall be through legal action, after the Letter of Credit has been -drawn upon. (2) Surety Bond. As an alternative to establishing a Letter of Credit securing the payment of liquidated damages as set forth in Part Five, the Franchisee may obtain a surety bond acceptable to the City,to guarantee the sum of Fifty Thousand Dollars ($50,000.00). The Surety Bond shall be in a form acceptable to the City and shall be submitted within forty-five (45) days after the Effective Date of this Franchise Agreement. The form of the Surety Bond shall contain, at a minimum: (a) That the surety is licensed in California and maintains a Best's Financial Size Category of IX. ific 4/pl04 ordipac terminals/ 8/04 10 SCANNED (b) That the surety holds a Certificate of Authority from the United States Department of the Treasury as an acceptable reinsuring company pursuant to Department Circular 570 as published in the Federal Register. (c). The surety shall have a Best's insurance rating of not less than A. (d) The principal amount of the obligation shall be Fifty Thousand Dollars ($50,000.00). (e) The obligation by the surety to pay the principal amount to the City is unconditional pursuant to Civil Code Section 2806. (f) The liability of the surety for the payment of the principal amount accrues immediately upon the default of the Franchisee, and without demand or notice pursuant to Civil Code Section 2807. (g) The surety shall waive any defense based on or arising out of any defense of the Franchisee other than payment in full of the principal amount including, without limitation, a defense based on or arising out of the disability of the Franchisee,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 rig to;require the City to proceed against.the.Franchisee '. or pursue`any`other remedyin.the.City's power: Further,said 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. (h) The surety shall also undertake to pay reasonable attorneys' fees and other costs incurred by the City in enforcing the Surety Bond. (i) Franchisee shall require said surety to submit to the City documentation evidencing the above requirements and any documentation required of the Franchisee by the surety for the purpose of ascertaining Franchisee's financial condition. Part Three Compensation Section 3.1 Rates. As consideration for the Franchise granted, the Franchisee shall pay to the City in lawful money of the United States the following: (a) Annual Franchise Fee. Pursuant to City Code § 3.44.260, the Franchisee, as consideration for the Franchise, shall, within sixty (60) days after the end of each calendar year during the life of the Franchise, including the year of granting the 04 ordt acific tenninalstV&04 . � SCANNED P 1.1 a Franchise, pay to the City a fee based on the formula set forth in Public Utilities (P.U.) Code § 6231.5. For pipelines with an internal diameter not listed in P.U. Code § 6231.5, the fees shall be in the same proportion to the fees of a 12-inch- diameter pipe as the diameter of the unlisted pipe is to 12 inches. As of the Effective Date of-that.Franchise; the'Franchise Fee..shall be $ 0`26 per. . linear foot of 12"pipeline and$ 0.44 per linear°foot of 20"pipeline;'multiplied by the applicable Consumer Price Index. Consequently, the Franchise Fee for the prorated period from the Effective Date through December 31, 2003 shall be $7,095.88. This amount shall be paid within sixty (60) days after the end of calendar year 2003 or passage of this Ordinance, whichever occurs later. The Franchise Fee for the prorated period from January 1, 2004 through December 31, 2004 shall be$17,571.70. (b) Base Construction Fee. In addition to the Annual Franchise Fee, any fees imposed by Applicable Law and any fees or conditions on any encroachment permit issued for street work, pursuant to Municipal Code Section 3.44.280, the Franchisee shall pay at the time of installation, relocation, or replacement of any pipeline or other Facility covered by the Franchise, a Base Construction Fee of One Dollar ($1.00) for each foot of pipeline or fractional part thereof installed, replaced or relocated in, on or under streets or other rights-of-way within the City. The Base Construction Fee shall be escalated in accordance with the provisions of Section 3:44 290 of the Code;with.the base year being'.January 1; 2003 through December 31,2003. .This fee shall not be'applicable to work performed:. pursuant::..... to Section 4.13. (c) Publication and Administrative Issuance Costs. The Franchisee shall pay to the City within thirty (30) days after receiving a statement therefor, all reasonable administrative and other costs, including attorneys fees, incurred by the City in processing the application for a Franchise, including but not limited to the preparation of any reports, statements or studies pursuant to the California Environmental Quality Act("CEQA")(Public Resources Code §§ 21000, et seq.,) and any similar Federal statute, or any successor statute, and for all reasonable advertising and publishing costs, including the cost of publishing the Franchise, if necessary-, incurred in connection with the granting of the Franchise. In the event that envirorinierital studies..or.reports are riot required,'such costs shall:not exceed `ten thousand dollars($10,.000): . Section 3.2 Late Franchise Fee Payments. (a) Fees and rates due from the Franchisee 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 return must be received by the Treasurer during normal business hours on the first regular working day following the weekend or legal holiday. A direct deposit, including electronic fund transfers and other similar methods of electronically exchanging monies between financial g/04 ord/pacific tminats/4/8/04 12 SCANED e accounts, made by the Franchisee in satisfaction of its obligations under this Section shall be considered timely if the transfer is initiated on or before the due date, and the transfer settles into the City's account on the following business day. (b) If. the;Franchisee jails to; remit any fee or:..rate.on or before the. due:date, the Franchisee: shall pay a penalty for such dehnquencles at the rate of ten percent (10%)of the total that is delinquent'in the remittance. (c) If the fee or rate is not received by the Treasurer within thirty(30) days following the date on which it first became delinquent, the Franchisee shall pay a second delinquency penalty of ten percent(10%) of the amount of fee or rate in addition to the amount of the fee or rate and the penalty first imposed. (d) The City Treasurer shall have the power to impose additional penalties upon the Franchisee for fraud or gross negligence in reporting or remitting at the rate of twenty-five percent(25%)of the amount of the fee or rate required to be remitted. (e) In addition to any other penalties imposed by this Section, the Franchisee shall pay interest at the rate of one and one-half percent (1-1/2%) per month, or any fraction thereof, on the amount of the fee or rate, exclusive of penalties, from the date on which the fee or rate first became delinquent, until paid. (fj For. collection :purposes-only, every penalty :imposed and such interest:that is accrued underi the provisions of this section shall:.become`a part:of the fee'or rate: herein required to be paid. Section 3.3 Proration of Payments. In the event of abandonment of Facilities in compliance with Section 1.19 or in the event of removal of such Facilities by the Franchisee, the annual franchise fee required under Section 3.1 shall be prorated for the calendar year in which such removal or abandonment occurs as of the end of the calendar month in which removed or abandoned. Section 3.4 Records. The Franchisee 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. Part Four Construction Section 4.1 Construction Requirements. (1) Pipelines and all other Facilities shall be constructed and maintained in a good workmanlike manner and in conformity with Applicable Law and in accordance with the latest edition of Standard Specifications for Public Works Construction or other construction standards per the approved encroachment or excavation permit(HBMC 12.10). 03 ord/ aci6c terminals/dMN d ► 13 SC'AN N E D a (2) All construction shall be accomplished between the hours specified by the City in the approved encroachment or excavation permit or Applicable Law. (3) Prior to commencing any Street work, Franchisee shall submit to Director detailed engineering and.traffic control plans, including. site-specific..hours.of construction, prepared,_:.: under the supervision of a ptofessional civil engineer or traffic.engineer licensed to practice iri. the State of California. No construction related activities maybe conducted in the Street without a City- approved encroachment or excavation permit, engineering plans, and a traffic control plan. (4) Franchisee 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 Franchisee, Franchisee shall respond in a timely manner. Unless the Director grants an extension, which the Director shall not unreasonably deny, Franchisee shall correct within twenty-four hours any adverse impact to the Streets caused by Franchisee's Facilities. (5) Every working day during construction, Franchisee 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. Section 4.2 Automated Equipment. Within 5 years:of the acceptance of the grant of Franchise, Franchisee hall.install uch controls ;valves and:other`appurtenances sufficient..,o remotely monitor and control the operations of the pipeline and storage interface within the City of Huntington Beach. Such controls and equipment shall include the capability of remotely detecting leaks, spills or releases of petroleum products from Franchisee's facilities within the City of Huntington Beach. Section 4.3 New Installation or Replacement. New installation or replacement of pipelines and all other Facilities necessary for the installation, operation,maintenance,and safety of pipelines and conduits shall be laid and maintained pursuant to Applicable Law. All such installations or replacements shall be reviewed by the Director as to the most desirable location in the streets of the City and his or her decision shall be final and binding on the Franchisee subject to appeal to the Council pursuant to Section 1.18. Section 4.4 .Permits. Where the provisions of any.Applicable.Law; which shall be in. . . force at the time,require the issuance of an excavation, encroachment or other type of permit,the Franchisee shall not commence any excavation or encroachment work under the Franchise until it shall have obtained such permits, except in cases of emergency affecting public health, safety or welfare or the preservation of life or property, in which case the Franchisee shall apply for such permits not later than the next business day. The Franchisee's application for a permit under Applicable Laic shall show the length and proposed location of the pipeline and/or other Facility intended to be installed, and such other facts as the Department may require. The Franchisee shall pay any and all permit inspection fees to the Department. g/04 ord/pacific terminals/4/8/04 14 SCANNED ' • V 4 Section 4.5 Work on and Restoration of Streets. The work of constructing, laying, replacing, maintaining, repairing or removing all pipelines and other Facilities authorized under the provisions of this Franchise in, over, under, along or across any Street shall be conducted pursuant to HBMC §§12.13:120 — 12.13.150 to minimize hindrance to the use of the Street for purposes of travel, and as soon as such work is completed,all,portions of the Street which have been':excavated or.otherwise damaged thereby:shall promptly;and in a workerlike manner be. repaired, replaced or restored and placed in as`good condition as the same was before`the commencement of such work. When repairing Street work, Franchisee shall grind and overlay the full width of any lane or partial lane which has been excavated or otherwise damaged. In the event that the Franchisee shall fail or neglect to make such. Street repair, replacement, or restoration work, then ten (10) days after notice therefor has been given Franchisee by the Director,the City may repair,replace or restore said highway at the expense of Franchisee. The Franchisee agrees to pay to the City the cost of performing such work. The amount so chargeable shall be the direct cost of such work plus the current rate of overhead being charged by the City for reimbursable work. Section 4.6 Failure to Timely Comply. Whenever the Franchisee fails to complete any work required by the terms and conditions of the Franchise, and the permits issued thereunder, within the time limits required thereby, the City may complete or cause to be completed said work in compliance with Applicable Law, at the expense of the Franchisee. The Franchisee agrees to pay to the City the cost of performing such work. The amount so chargeable to Fr anchisee:shall be the reasonable direct cost of said work plus the current rate.of overhead being' charged by the City for reimbursable work: Section 4.7 Completion Statement. Upon the completion of the construction of any pipelines or other Facilities constructed pursuant to this Franchise, the Franchisee shall submit a statement to the Director, identifying the permit or pen-nits issued by the Department, the total length of pipeline, pipeline material, diameter of pipeline, the construction of which was authorized under such permit or permits, the total length of pipeline or other Facility actually laid, and as-built drawings. Section 4.8 Shoring. The Franchisee will provide at its sole cost such shoring or other support as shall be reasonably required to support, maintain, and protect Franchisee's facility in connection with any storm drain or sewer constructed by the County of Orange or other duly- . constituted`authority,or in.connection-Mth anyfacility constructed by"City,.or by any successor agency of any of these agencies. Section 4.9 Mans. Within ninety (90) days following the date in which any Facilities have been laid, removed or abandoned under the Franchise, the Franchisee shall file a map or maps in City-approved digital format with the Department showing the location, depth, and size of the Facilities so laid,removed or abandoned. Section 4.10 Facilities. The Franchisee shall have the right to construct, maintain and repair such traps, manholes,conduits,valves. appliances, attachments and other Facilities as may be necessary or convenient for the proper maintenance and operation of the pipelines under said RNILM g/04 ord/pacific terminals/4/8/04 15 SCAMED Franchise, and said Facilities shall be kept flush with the surface of the street and so located as to conform to any Franchise, rule or regulation of the City, or of any permit issued by the Department in regard thereto and shall not interfere with the use of the street for travel. The- Franchisee shall have the right, subject to such Franchises,rules or regulations as are now or may hereafter.be.in:force,.to make.,all..necessary excavations. in.said.streets.for.the :construction, . maintenance and repair`of said Facilities;. provided, however, that.`the Franchisee shall_ first obtain an excavation permit from the Department for`doing any-such work. Section 4.11 Ordinary Repair. The Franchisee shall obtain an excavation permit from the Department to perform repair work. In the event of a condition that could cause a threat to public health or safety and requires emergency repair work,the Franchisee shall proceed with the repairs and notify the Department as soon as possible,not later than the next business day. Section 4.12 Breaks or Leaks. If any portion of the street shall be damaged by reason of breaks or leaks in any pipe, conduit or appurtenance constructed or maintained under the Franchise, the Franchisee shall, at its own expense, immediately following written or oral notification thereof,promptly repair any such damage and put such street in as good condition as it was in before such damage or leak,all to the satisfaction of the Director. The Franchisee shall obtain an excavation permit from the City for doing any such work. Section 4.13 Relocation. If, in the sole discretion of the Director, subject to appeal to the Council pursuant to Section 1.20, the Franchisee's Facilities conflict in any way with the construction; re ocation or.repair:`of any City or Redevelopment Agency.facility or project, or.:: any-storm.drain.or sever..owned b.y.the County of Urarige .or: other authority or.:any:successor: :. agency of any of these entities, the Franchisee shall relocate its facility to the reasonably nearest alternative location or other location mutually agreeable to the City and the Franchisee necessary to accommodate the construction, relocation or repair of the storm drain, sewer or City facility, either permanently or temporarily, as is determined by the Director to be required within the time required by the Director. Said relocation shall be accomplished at the Franchisee's sole expense. If the Franchisee fails to relocate its Facility within the required time, or fails to pave, surface, grade, repave, resurface or regrade in a timely manner, the City, to the extent permitted by Applicable Law, may cause the work to be done and shall keep an itemized account of the entire cost thereof, and the Franchisee shall reimburse the City or other public entity for such cost within thirty(30)days after presentation to said Franchisee of an itemized account of such costs. The Franchisee shall hold harmless the City, its officers, departments and employees and the other public,agency;if any, from any aiability which may arise on be clairried'to arise from.the moving,:cutting,or:alteration of.any of the Franchisee's Facilities;.'or the turning on or'off of water, oil, or other liquid, gas, or electricity required to be accomplished by City or any other public agency as a result of the Franchisee's failure to relocate said facility by the date established by the City or other public agency. The Franchisee shall also be liable for any consequential damages incurred by the City or other public agency arising from the Franchisee's failure to timely complete the work required by this section. Section 4.14 Force Maieure; Franchisee's Inability to Perform. In the event Franchisee's performance of any of the terms, conditions or obligations of the Franchise is prevented by any cause beyond Franchisee's reasonable control, such inability to perform shall no 04 ord/ acific ierminaW4/8/04 ~ y � 16 SCANNED s be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided Franchisee has notified City in writing within seven (7) days of its discovery of the occurrence of such an event. In such an instance, Franchisee shall have reasonable time, under the circumstances, to perform its Franchise obligations or to procure a substitute for such obligation which is.satisfactory. to.the.City....For the purpose of this.Section,..causes or events not ithin the control.'of the;Franchisee shall:include, but not'be limited to acts.of God,.sabotage; riots or civil disturbanees, epidemic, freight embargoes; explosion, natural disasters such as floods, earthquakes, landslides and fires, rationing, and power or communications failures, but shall not include financial inability of the Franchisee to perform or failure of the Franchisee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is materially due to the acts or omissions of the Franchisee. Part Five Breaches of Franchise Section 5.1 Liquidated Damages. The City finds, and the Franchisee, by its Acceptance, agrees, that as of the time of the renewal of this Franchise, it is impractical, if not impossible to reasonably ascertain the extent of damages which will be incurred by the City as a result of a material breach by the Franchisee of its obligations under this Franchise. Accordingly, the City, through its Director, Council or a hearing officer, may, in its discretion;.assess liquidated,damages in the following amounts (1) Up to two hundred dollars($200.00) for each day of each material breach, not to exceed six thousand dollars ($6,000.00) for each occurrence of material breach; (2) For a second material breach of the same nature occurring within 12 months where a fine or penalty was previously assessed, up to four hundred dollars ($400.00) for each day of each material breach, not to exceed twelve thousand dollars ($12,000.00) for each occurrence of the material breach; (3) For a third or further material breach of the same nature occurring within those.same:12 months where:a fine or'penalty was;previously:: assessed, up to.one thousand dollars`{$1;00000) for each material breach;. not to exceed thirty thousand dollars ($30,000.00) for each occurrence of the material breach. (4) Notwithstanding the above, in the event that the Franchisee fails to complete the street restoration work within the time specified in the encroachment or excavation permit,the City may require the Franchisee to pay to the City one thousand dollars ($1,000.00) per day as liquidated damages for each day construction extends beyond the time specified in the permit, or any extension thereof g/04 or&pacific terminals/4/8/03 17 Prior to assessing any liquidated damages against the Franchisee, the City shall have provided Franchisee with notice and opportunity to cure in accordance with the provisions of Section 5.3. .,.....The.City finds,.and the Franchisee, by its Acceptance, acknowledges and.agrees.that the above-described liquidated damages provisions represent=a reasonable sum 'in fight:of.all of:the circumstances: Said liquidated-dam ages.sums shall be applicable to eachcaleridar day of delay following expiration of the 30-day notice period provided above during which Franchisee has been found by the City Council to be in material default pursuant to this Section. The Franchisee shall pay any liquidated damages assessed by the City Council within ten(10)days after they are assessed. If they are not paid within the ten-day period, the City may withdraw them against the letter of credit or similar security provided pursuant to this Franchise. Section 5.2 Breach of Franchise: Grounds for Assessment of Penalties and Franchise Termination. The City reserves the right to terminate the Franchise or assess damages or penalties against the Franchisee in the event of a material breach of any of the Franchise terms, or any material term of any applicable federal state or local statute or regulation, which breach is not cured following written notice and a reasonable opportunity to cure. Breaches which are grounds for termination include,but are not limited to: (1) If the Franchisee fails to comply with Applicable Law. 2 : If the Fcarichisee ractices,or.attem is fo ractice an fraud or deceit upon.the.Crty: (3) If the Franchisee becomes insolvent,unable or unwilling to pay its debts, or upon listing of an order for relief in favor of Franchisee in a bankruptcy proceeding. (4) If the Franchisee fails to provide or maintain in full force and effect,the liability and indemnification insurance letter of credit or bonds as required by the Franchise. (5) If the Franchisee willfully fails to provide City with required information and/or reports in a timely manner and upon City request, as provided in the Franchise. (6) If the Franchisee fails to pay the Franchise fee within 60 days after the fee is due,then the City may terminate the Franchise or impose additional penalties pursuant to this Section 5 in addition to the penalties and interest authorized in Section 3.2. (7) Any other willful act or omission by the Franchisee which materially violates the terms,conditions or requirements of the Franchise or any order,directive,rule or regulation issued thereunder and which is not timely corrected or remedied pursuant to Section 5.3 of the Franchise. 04 ord! acific terminals/WW � P " 18 SCAMED Section 5.3 Procedure For Adjudication of Breaches of The Franchise. Prior to imposing any sanction or penalty, including termination of the Franchise upon the Franchisee,the.Director shall.give the Franchisee.notice of the.breach and a.reasonable. period to.correct.it: The Director shall establish a reasonable notice of cure period. The notice to cure period shall be a minimum of thirty(30) days in all cases(except in cases of emergency where a shorter time may be prescribed consistent with the nature of the emergency). If the breach is not timely cured,the Director shall cause to be noticed.a public hearing before the City Council (or refer the matter to a hearing officer, who shall make a recommendation to the City Council) on whether there has been a material breach of the Franchise,and the appropriate penalty. Section 5.4 Hearing Procedure. (1) A full evidentiary public hearing shall be held to determine if the Franchisee materially breached the Franchise, and what penalty shall be imposed. (2) The evidentiary hearing shall be conducted upon a minimum of fourteen. (14)days written notice duly given to the Franchisee and published notice providedto.the:public. The-Franchisee:maypresentrelevant and appropriate-evidence;-orally and in:documented form: Based on the . evidence presented at the hearing,a written determination shall be made whether the Franchise should be revoked or the Franchisee should be penalized. The hearing body may make any other determinations which are reasonably related to the Franchise. (3) Should the hearing body find that there has been a material breach of the Franchise,but that revocation is inappropriate,then it may assess and levy monetary penalties against the Franchisee as set forth in this Franchise. (4) The Franchisee shall receive written notice of any action taken following the hearing. (5).. Pursuant.to:Section 5:3 of the.Frarichise,ahe Director hall cause the evidentiary hearing to be conducted by a hearing officer or the City Council. If a hearing officer conducts the hearing,then the City Council shall hold a subsequent public hearing to determine if the hearing officer's recommendation should be affirmed,reversed or modified. (6) The Franchisee shall be entitled to initiate an action in state court to challenge the determination of the City Council pursuant to California Code of Civil Procedure §1094.5 within not more than ninety(90)days of receiving notice of the City Council's action. r/44 ordlpacific terminals/4/8/04 19 SCAMED Section 6. This Ordinance shall take effect thirty days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a _ ....regular meeting thereof.held on.the. 21 st day of June .2004.. :. . 4Ma ATTEST: APPROVED AS TO FORM: • c City Cler Ci Attordey REVIEWED AND APPROVED: MATE AND APP ED: City Adn*nistrator Director of Public Works INITIAT APPROVED IATED AND.APPROVED}. _ Director Administrative Services Fire Chief 4.4 Aft 5uANNED g/04 ord/pacific tenninals/4/8/04 20 r. I Huntington Beach Municipal Code 3.44—Index Chapter 3.44 PIPELINE FRANCHISES (2319-10/78,2676-2184) Sections: 1. GENERAL PROVISIONS AND DEFINITIONS 3.44.010 Short title 3.44.020 General provisions 3.44.030 Pole lines 3.44.040 Definitions 3.44.050 Term 3.44.060 Franchise agreement 3.44.070 Nonexclusive franchise 3.44.080 Maps 3.44.090 Insurance 3.44.100 Liability insurance 3.44.110 Workers'compensation insurance 3.44.120 Workers'compensation insurance-Filing 3.44.130 Faithful performance.bond 3.44.140 Alternative security 3.44.150 Length 3.44.160 Forfeiture 3.44.170 Value of franchise 3.44.180 State highways 3.44.190 Eminent domain 3.44.200 Publication date 3.44.210 Assignment 3.44.220 Hold harmless 3.44.230 Standards 3.44.240 Defective facilities 3.44.250 Hazardous substances II. COMPENSATION 3.44.260 Basic granting fee 3.44.270 Base annual fee 3.44.280 Base construction charges 3.44.290 Adjustments--Base annual fee 3.44.300 Proration of payments 3.44.310 Records III. CONSTRUCTION 3.44.320 Construction requirements 3.44.330 New installation or replacement 3.44.340 Permits 3.44.350 Work on and restoration of streets 3.44.360 Failure to comply timely 3.44.370 Completion statement 3.44.380 Appurtenances 3.44.390 Ordinary repair 3.44.400 Brews or leaks .�?44 it;t Emergency equipment SCANNED 2,84. 3.44—Index-3.44.040(t) Huntington Beach Municipal Code 3.44.420 Removal or abandonment of facilities 3.44.430 Failure to comply 3.44.440 Abandonment"in place"conditions IV. SPECIAL.PROVISIONS FOR OIL PIPELINES 3.44.450 Rights granted 3.44.460 Materials used 3.44.470 Approvals 3.44.480 Reports 3.44A90 Payments due 3.44.500 Cost of relocation I. GENERAL PROVISIONS AND DEFINITIONS 3.44,010 Short title. This chapter shall be known and cited as"Pipeline Franchise Ordinance." (2319-10/78) 3A4.020 General provisions. Every franchise hereafter granted by the city to lay,construct, maintain,operate,renew,repair,change the size of,remove or abandon in place pipes and . pipelines for the collection,transportation or distribution of oil,gas,gasoline,petroleum,wet gas,hydrocarbon substances,together with all manholes,valves;appurtenances and service connections necessary or convenient for the operation of said pipes or pipelines including conduits, cathodic protection devices,wires,cables and other appurtenances necessary or convenient for the exercise of the franchisee's business,in,under,along or across any and all streets within the city of Huntington Beach except as otherwise provided in the particular franchise agreement,shall be granted upon and be subject to the rules,regulations,restrictions and terms and conditions of this chapter,in addition to those rules,regulations,restrictions,terms and provisions set forth in the particular franchise agreement. (2319-10/78) 3,44.030 Pole lines. Nothing in this chapter or in any franchise agreement granting such a franchise shall be construed to permit the grantee to construct new poles or other facilities aboveground. (2319-10178) 3,44.040 Definitions. For the purpose of this chapter,the following terms,phrases,words and their derivations shall have the meaning given herein: (a) "Council"shall mean City Council of the city of Huntington Beach. (b) "Code" shall mean the Huntington Beach Municipal Code. (c) "Department" shall mean the Public Works Department of the city of Huntington Beach. (d) "Director" shall mean the Public Works Director of the city of Huntington Beach. (e) "Franchisee" or"grantee" shall mean the person to whom the franchise is granted,and any + person to whom it is lawfully assigned. I (f) "Facilities" or"appurtenances" shall mean all property of the franchisee,including but not limited to,pipelines,pump stations,and service connection with the franchisee's facilities, whether installed by the franchisee or not,erected,constructed,laid,operated or maintained in,upon,over,under,along or across any street pursuant to any right or privilege granted by the franchise. O � Huntington Beach Municipal Code 3.44.040(g)-3.44.090 (g) "Franchise payment period"shall mean the time period between the effective date of the. franchise agreement granting the franchise and December 31 of the same year,and each calendar year thereafter,during the life of the franchise. (h) "Franchise report period"in all cases shall mean the time period between the effective date of the franchise agreement granting the franchise through and including December 31 of that year,and each calendar year thereafter,during the life of the franchise. (i) "Highway" or"street" shall mean any public highway, freeway(except a state freeway), street,road,alley,lane or court or other public easement,and above and below the same, which now exists or which may hereafter exist in the city of Huntington Beach. 0) "Main" shall mean any pipeline or conduit laid in,along or approximately parallel with any street for the collection,transmission or distribution of any hydrocarbon substances. (k) "Major street" shall mean any street or portion thereof designated as a major secondary highway in the circulation element of the Huntington Beach General Plan. (1) '.'Minor street" shall mean all streets in the city other than those designated as "major"or "secondary highways" in the circulation element of the Huntington Beach General Plan. (m)"Person"-shall mean any individual,person, firm,partnership or corporation. (n) "Section" shall mean a section of the Huntington Beach Municipal Code,unless some other code or statute is mentioned. (o) "Service connection" shall mean the wire,pipes,or conduits connecting the building or place where the service or hydrocarbons supplied by the franchisee is used or delivered,or is made available for use or delivery,with the supply line or supply main in the highway or with such supply line or supply main on private property. (2319-tort8) 3,44,050 Term. Unless the franchise agreement granting the franchise provides otherwise,the term of the franchise shall be twenty-five(25)years. (2319-10n8) 3,44,060 Franchise agreement. The franchisee shall enter into a written agreement with the city of Huntington Beach which grants the franchise and sets forth the terms and provisions therein. (2319-10t78) 3.44,070 Nonexclusive franchise. The granting of the franchise shall not be construed to prevent the city from granting identical or similar franchise to any person other,than the . franchisee. Nothing herein contained shall ever be construed so.as to exempt the franchisee from compliance with all ordinances,rules or regulations of the city now in effect or which may be hereafter adopted which are not inconsistent with the terms of the franchise. (2319-10R8) 3.44.080 1Vlaps. Within ninety(90)days following the date on which any facilities or appurtenances have been laid,removed or abandoned under the franchise,the franchisee shall file a map or maps with the department showing the accurate"as built" location,depth,and size of the facilities or appurtenances so laid,removed or abandoned. (2319-10/78) 3 44.090 Insurance. On or before commencement of any franchise operations, franchisee shall obtain or provide satisfactory evidence of having policies of liability and workers'compensation insurance from companies authorized to transact business in the state of California by the Insurance Commissioner of California. (2319-10n8) r9-4fir ;. 3.44.100-3.44.120(h) Huntington Beach Municipal Code 3.44,100 Liability insurance. The policy of liability insurance required by this chapter shall be . issued to franchisee and name the city and its officers,agents,and employees as additional insureds. It shall further indemnify for all liability for personal and bodily injury,death and damage to property arising from activities conducted pursuant to the franchise by providing coverage thereof,including but not limited to: (a).Negligent acts or omissions of franchisee and the agents,servants and employees thereof, committed in the conduct of franchise operations. (b) Provide a combined single limit liability insurance in the amount of one million dollars ($1,000,000). (c) Be noncancellable without thirty(30)days written notice thereof directed to Council. (2319-10/78). 3.44.110 Workers'compensation i surance. The policy of workers'compensation insurance, required by this chapter,shall: (a) Have been previously approved as to substance and form by the California Insurance Commissioner. (b) Cover all employees of franchisee who in the course and scope of their employment are to conduct or do work pursuant to the franchise operations. (c) Provide for every benefit and payment presently or hereinafter conferred by Division 4 of the Labor Code of the state of California upon an injured employee,including the vocational rehabilitation.and death benefits. 1 (d) Be noncancellable without thirty (30)days written notice thereof directed to Council. (2319-10/78) 3.44.120 Workers' compensation insurance--Filing. Franchisee shall file with the City Clerk prior to commencement of any franchise operations either certified copies of said policies or a certificate of insurance for each of the required policies executed by the company issuing the policy,certifying that the policy is in force and providing the following information: (a) The policy number. (b) The date upon which the policy will become effective and the date upon which it will expire. (c) The names of the insured and any additional insureds. (d) Subject of the insurance. (e) The type of coverage provided by the insurance. (f) Amount of limit of coverage provided by the insurance.. (g) A description of all endorsements that form a part of the policy. (h) The insured shall agree to defend,indemnify and hold harmless the city of Huntington Beach against loss, damage or expense by reason of any suits,claims,demands,judgments caused by insured in the performance of the franchise. 2184 . SCANRIED ar tl , r Huntington Beach Municipal Code 3.44.120-3.44.190 Any franchise operation shall not commence until franchisee has complied with the aforementioned provisions of this section,and any such operation shall be suspended during any period that franchisee fails to maintain said policies in full force and effect. (2319-10n8) 3.44.130 Faithful performance bond. .On or before the effective date of the franchise. agreement granting the franchise,franchisee shall file and thereafter at all times during the life of the franchise keep on file with the.City Clerk a corporate surety bond approved by the City Attorney running to the city in the penal sum of ten thousand dollars($10,000)with a surety to be approved by the City Attorney,conditioned that franchisee shall well and truly observe,fulfill and perform each condition of the franchise and that in case of any breach of condition of the bond-the whole amount of the penal sum shall be deemed to be liquidated damages and shall be recoverable from the principal and sureties of the bond. In the event that said bond, after it has been so filed, shall at any time during the life of the franchise become insufficient, franchisee agrees to renew said bond,subject to the approval of the City Attorney,within ten(10) days after written notice to do so from the Director. (2319-1 ons) 3.44.140 Alternative security. In lieu.of the bond required pursuant to section 3.44.100,the franchisee may deposit with the Director and assign to the city savings and loan certificates or shares,or both,in the same amount as required on such bond. (2319-1 ons) 3,44,150 Lena. Whenever the length of any wire,pipe or conduit is a factor in calculating any payment due under any franchise granted by the city,all service connections shall be excluded in determining such lengths. (2319-1 ons) 3.44,160 Forfeiture. The franchise is granted and shall be held and enjoyed upon each and every condition contained in the franchise agreement,including such conditions contained herein j as are incorporated by reference in said franchise agreement,and shall be strictly construed against the grantee. Any neglect,failure or refusal to comply with any of the terms and provisions of the franchise agreement shall constitute grounds for the suspension or forfeiture of the franchise,shall give to the grantee not less than thirty(30)days notice in writing of any default thereunder. If the grantee does not, within the noticed period,begin the work of compliance or after such beginning does not prosecute the work with due diligence to completion,the Council may hold a hearing,at which the grantee shall have the right to appear and be heard,and thereupon the Council may determine whether such conditions are material and essential to the franchise and whether the.grantee is in default with respect thereto and may declare the franchise suspended or forfeited. Notice of said hearing shall be given to the grantee by certified mail not less than five(5)days before said hearing. (2319-1 ons) 3,44,170 Value of franchise. The grantee of any franchise awarded to a public utility,by accepting the terms and conditions thereof, stipulates and agrees that in any proceeding for the purpose of adjusting the rates of the grantee,no greater value shall be placed upon the franchise than the actual cash paid therefor by the grantee. (2319-10l78) 3,44,180 State highways. If any street or portion thereof becomes a state highway, except for the right to continue to collect franchise payments in such other rights as by law remain with the city,the state shall succeed to all rights reserved to the city by the franchise. (2319-1 ons) 3,44.190 Eminent domain No franchise granted by the city shall in any way impair or affect the right of the city or any successor in authority to acquire the property of the grantee by purchase or condemnation,and nothing contained in such a franchise shall be construed to contract away,modify or abridge either for a term or in perpetuity the city's right of eminent domain in respect to any public utility. (2319-1on8) AL w4d SCANNED 2/�4. 3.44.200-3.44,250(c) Huntington Beach Municipal Code 3,44.200 Publication costs. The grantee shall pay to the city within thirty(30)days after receiving a statement therefor,all advertising and publishing costs,including the cost of publishing the granting of the franchise,if necessary. (2319-10n8) 3.44.210 Assignment. The grantee shall not sell,transfer,assign or lease the franchise or any pant thereof,except with the written approval of the Council:.Such sale,transfer,assignment,or lease shall be made only by filing with the Council a copy of the duly executed instrument of such sale,transfer,assignment or lease and a written request for the consent of the Council to such sale,transfer,assignment or lease. If such duly executed instrument and such written request is not filed with the Council before the expiration of thirty(30)days after the effective date of such sale,transfer,assignment or lease,then,upon the expiration of said thirty(30)days, the franchise shall be subject to forfeiture and the Council may,without notice,revoke the franchise. As a condition to the granting of consent to such sale,transfer,assignment or lease, the Council may impose such additional terms and conditions upon the franchisee and upon the grantee or assignee,which the Council may deem to be in the public interest. Such additional terms and conditions shall be expressed by Council resolution. Nothing herein contained shall be construed to grant to the grantee the right to sell,transfer,assign or lease the franchise,or any part thereof,except in the manner aforesaid. This section applies to any assignment,whether by operation of law,by a voluntary act of the grantee or otherwise. (2319-10n8) 3,44,220 Hold harmless. The grantee shall be responsible to the city and shall defend, indemnify and hold harmless the city and its officers and employees from all damages or liability arising from the use,operation or maintenance of the facilities erected,constructed,laid,operated or maintained thereunder. (2319-10178) 3.44,230 Standards. All facilities erected,constructed,laid,operated or maintained under the provisions of the franchise shall be erected,constructed, laid,operated or maintained in accordance with and conforming to all the ordinances,codes,rules and regulations.now or hereafter adopted by or prescribed by the Council. (2319-10178) .4� 4.240 Detective facilities. If any portion of any street shall be damaged by reason of defective facilities laid or constructed under the franchise,the grantee shall,at its own expense, repair any such defect and put such street in as good condition as it was before such damage was incurred,to the satisfaction of the city. If the grantee,within ten(10)days after receipt of written notice from the city,instructing it to repair such damage, shall fail to commence to comply with such instructions,or,thereafter,shall fail diligently to prosecute such work to completion,then the city immediately may do whatever work is necessary to carry out said instructions at the cost and expense of the grantee,which cost and expense,by the acceptance of the franchise,the grantee agrees to pay upon demand. 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 the grantee agrees to pay the reasonable cost thereof upon demand. (2319-10n8) 3,44 5t2 0 Hazardous substances. Prior to the issuance of any excavation permit for the construction or installation of any pipeline for the transmission of flammable liquids or gases, which are heavier than air,written approval shall be obtained from the Director. Said approval should be based on the determination that no undue fire hazard.will be created to life or property in the areas through which the proposed pipeline will be located. To make such determination, consideration shall be given to: (a) Type of hydrocarbon to be transmitted. (b) Density of population or structural development in the area through which the pipeline will be located. (c) Adequacy of water supplies for fire control purposes. A"'A N 011m E D r j Huntington Beach Municipal Code 3.44.250(d)-3.44.250(e) (d) Extent of available public fire protection facilities. (e) Number and location of shutoff valves in line. (2319-10/78) H. COMPENSATION 3,44,260 Basic granting fee. In the event of an initial grant of franchise or franchises which extend,renew,or continue previously granted franchises,a base granting fee shall be required as established,and amended from time to time,by resolution of the City Council. (2319-10/78, 2676-2/84) 3,44,270 Base annual fee. A base annual fee shall be paid by franchisee at times specified and in the amount established,and amended from time to time,by resolution of the City Council. (2319-10R8,2676-2/84) 3,44,280 Base construction charges. The holder of the franchise shall pay at the time of installation,relocation or replacement of any segment of pipe or pipeline,or any other facility covered by the franchise agreement,a base construction charge established,and amended from time to time,by resolution of the City Council. (2319-10/78,2676-2/84) 3,44.290 Adjustments-Base annual fee. The amount of each annual payment of the base annual fee shall be revised every year from the effective date of the franchise agreement at the time of payment,in accordance with the following formula: (a) The"Wholesale'Producer'Price" index(1967=100) "All Commodities,"established by the United States Bureau of Labor Statistics, Department of Labor,as it stands on the date the franchise is granted, shall be taken as the "base index".upon which the above franchise fee is computed. (b) If said index for the calendar month ending two(2)months prior to the month in which payment to the city is due shall stand at other than said"base index,"then the rate of payment to the city shall vary from said"base annual fee" in direct proportion as said index has increased from the "base index," as hereinabove defined;provided,however,that in no event shall the amount of the annual payment be less than the"base annual fee" as set forth herein. (c) If said bureau shall revise the said index,the parties hereto shall accept the method of revision or conversion recommended by said bureau. (d) If said bureau shall discontinue the preparation of the said index using prices prevailing in the year 1967,as a base of 100 and if no transposition table prepared by said bureau is available, applicable to said year of 1967,then the amount of each annual payment shall be computed by reference to such other price index as may be chosen by city and the city shall be the sole judge of comparability of successive indices. (2319-10n8) 3,44,300 Proration of payments. In the event of abandonment of facilities with the approval of the city as elsewhere in this chapter provided,or in the event of removal of such facilities by the franchisee,or in the event of the grant of a franchise with an initial franchise payment period of less than one year,the annual franchise fee required under section 3.44.390 shall be prorated for the calendar year in which such removal or abandonment or grant occurs as of the end of the calendar month in which removed,abandoned or granted. (2319-10/78) 3.44,310 Records. Franchisee 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. Loa -5CAMED 1aa T 3.44.310-3.44.360 Huntington Beach Municipal Code At all reasonable times,the franchisee shall permit the city or its duly authorized representative to examine all property of the franchisee erected,constructed,laid,operated or maintained , pursuant to the franchise,together with any appurtenant property of the franchisee,and to examine and transcribe any and all books,accounts,papers,.maps,and other records kept or maintained by the franchisee or under its control which concern the operations,affairs,transactions,property or financial condition of the fianchisee with respect thereto. Said records shall be made available to the city at a location in the county of Orange. (2319-10178) III. CONSTRUCTION 3A4.320 Construction requirements. Pipelines and appurtenances shall be constructed and maintained in a good workmanlike manner in conformity with the terms and conditions of any city ordinance,rule or regulation now, or as hereafter amended,adopted or prescribed by the city. All pipes laid under the franchise shall be of first class material. (2319-10M) 3.44,330 New installation or replacement. New installations or replacements of pipelines and appurtenances and all other facilities necessary for the installation,operation,maintenance,and safety of pipelines and conduits shall be laid and maintained only pursuant to permit issued by the department. All such installations or replacements shall be reviewed by the Director as to the most desirable location in the streets of the city and his decision shall be final and binding on the franchisee. (2319-10/78) 3.4A40 Permits. Where the provisions of any city ordinance,resolution or regulation,which shall be in force at that time,require the issuance of an excavation,encroachment or other type of permit,the franchisee shall not commence any excavation or encroachment work under the { franchise until it shall have obtained such permit from the department except in cases of emergency affecting public health,safety or welfare or the preservation of life or property,in which case the franchisee shall apply for such permit not later than the next business day. The application of the franchisee for such permit shall show the following facts: the length and proposed location of the pipeline and/or appurtenance intended to be used,and such other facts as the department may require. The franchisee shall pay any and all permit inspection fees to the department. (2319-10/78) 3.44.350 Work on and restoration of streets. The work of constructing,laying,replacing, maintaining,repairing or removing all pipelines and appurtenances authorized under the provisions of this chapter in,over,under,along or across any street shall be conducted with the least possible hindrance to the use of the street for purposes of travel. As soon as such work is completed,all portions of the street which have been excavated or otherwise damaged thereby shall promptly.and in a workmanlike manner be repaired,replaced or restored and placed in as good condition as before the commencement of such work and shall be done to the satisfaction of the Director at the expense of the franchisee,and in accordance with the terms and conditions of any city ordinance,resolution or regulation. In the event that the franchisee shall fail or neglect to make such highway repair, replacement or restoration work,ten(10)days after notice therefor has been given franchisee by the Director,the city may repair,replace or restore said highway at the expense of franchisee.Franchisee agrees to pay to the city the cost of performing such work. The amount so chargeable shall be the direct cost of such work plus the current rate of overhead being charged by the city for reimbursable work. (2319-10/78) 3.44.360 Failure to com timely. In the event that the franchisee fails to complete the work within the time specified in the permit,the city may require the franchisee to pay to-1e.city not Aah ff � sCANNED Huntington Beach Municipal Code 3.44.360-3.44.420(a) _ more than two hundred dollars($200)per'day as liquidated damages for each day construction extends beyond the time specified in the permit. Whenever the franchisee fails to complete any work required by the terms and provisions of the franchise,and the permits issued thereunder,within the time limits required thereby,the city may complete or cause to be completed any and all such work at the expense of the franchisee. The franchisee agrees to pay to the city the cost of performing such work. The amount so chargeable to franchisee shall be the direct cost of such work plus the current rate of overhead being charged by the city for reimbursable work. (2319-10/78) 3,44.370 Completion statement. Upon the completion of the construction of any pipelines or appurtenances constructed pursuant to said franchise,the franchisee shall submit a statement to the Director,identifying the permit or permits issued by the department,the total length of pipeline,the construction of which was authorized under such permit or permits, and the total length of pipeline or appurtenances actually laid. (2319-1on8) 3,44,380 Appurtenances. The franchisee shall have the right to construct,maintain and repair such traps,manholes,conduits,valves,appliances,attachments and appurtenances(hereinafter collectively referred to as"appurtenances")as may be necessary or convenient for the proper maintenance and operation of the pipelines under said franchise,and said appurtenances shall be kept flush with the surface of the street and so located as to conform to any ordinance,resolution or regulation of the city,or of any permit issued by the department in regard thereto and shall not interfere with the use of the street for travel. The franchisee shall have the right subject to such ordinances,resolutions and regulations as are now or may hereafter be in force,to make all necessary excavations in said street for the construction,maintenance and repair of said appurtenances;provided,however,that the franchisee shall first obtain an excavation permit from the department for doing any such work. (2319-10/78) i 3.44390 Ordinary re_nair. The franchisee shall be privileged to excavate in the road or street for line repair for the number of days agreed upon by the franchisee and the department; provided,however,that the franchisee shall first obtain an excavation permit from the department for the doing of any such work. (2319-1 or78) 3,44,400 Breaks or leaks. If any portion of the street shall be damaged by reason of breaks or leaks in any pipe,conduit,or appurtenance constructed or maintained under the franchise,the franchisee thereof shall,at its own expense,immediately following written or oral notification thereof,promptly repair any such damage and put such street in as good condition as it was in before such damage or leak,all to the satisfaction of the department. The franchisee shall obtain an excavation permit from the department for the doing of any such work. (2319-10n8) 144.410 Emergency equipment. At all times during the term of this franchise,the franchisee shall maintain or.arrange for,on a twenty-four(24)hour a day basis adequate emergency equipment and a properly trained emergency crew within a radius of twenty-five(25)miles from any facilities installed or maintained pursuant hereto for the purpose of shutting off the pressure and the flow of contents of such facilities in the event of an emergency resulting from an earthquake,act of war,civil disturbance,fire,flood, or any other cause or nature whatsoever. (2319-10178) 3.44,420 Removal or abandonment of facilities. (a) At the expiration,revocation or termination of this franchise or the permanent discontinuance of the use of all or a portion of its facilities,the franchisee shall,within thirty (30)days i thereafter make written application to the city for authority either: (1) to abandon all or a portion of such facilities in place;or(2) to remove all or a portion of such facilities. The WE; Nfi �, 3.44.420(a)-3.44.460 Huntington Beach Municipal Code Director shall determine whether any abandonment or removal which is thereby proposed may be effected without detriment to the public interest and under what conditions such proposed abandonment or removal may be safely effected. He shall then notify the franchisee of his determination. (b) Within thirty(30)days after receipt of such notice,the franchisee shall apply for a permit from the department to abandon or remove the facility. ,Such permit is to contain the conditions of abandonment or removal as may be prescribed by the Director. The franchisee shall,within ninety(90)days after obtaining such permit commence and diligently prosecute to completion,the work authorized by the permit. (2319-10/78) 3,44.430 Failure to--comply- (a) If any facilities to be abandoned "in place" subject to prescribed conditions shall not be abandoned in accordance with all such conditions the Director may make additional appropriate orders,including an order that the franchisee shall remove any or all such facilities. The franchisee shall comply with such additional orders. (b) In the event that the franchisee shall fail to comply with the terms and conditions of abandonment or removal as may be required by this chapter and within such time as may be prescribed by the Director,the city may remove or cause to be removed such facilities at the franchisee's expense. The franchisee shall pay to the city the cost of such work plus the current rate of overhead being charged by the city for reimbursable work. (c) If, at the expiration,revocation or termination of this franchise,or of the permanent discontinuance of the use of all or a portion of its facilities,the franchisee shall,within thirty ! (30)days thereafter,fail or refuse to make written application for the abovementioned authority,the Director shall make the determination as to whether the facilities shall be abandoned in place of removed. The Director shall then notify the franchisee of his determination. The franchisee shall thereafter comply with the provisions of subsection(b) of section 3.44.420. (2319-1 on8) 3.44.440 Abandonment"in place" conditim Facilities abandoned"in place" shall be subject to the condition that if,at any time after the effective date of the abandonment,the Director determines that the facility may interfere with any public project,franchisee or its successor in interest must remove the facility at its expense when requested to do so by.the city or to pay city for the cost.of such removal. (2319-10/78) IV. SPECIAL PROVISIONS FOR OIL PIPELINES 3A4.450 Rights granted, The franchisee granted an oil pipeline franchise shall have the right during the life thereof to transport oil,gas,gasoline,petroleum,wet gas and other hydrocarbon substances through the pipelines maintained under the franchise. If the franchisee or assignee later qualifies before the Public Utilities Commission of the state of California as a common carrier,the franchisee or assignee shall then have no right to continue to operate hereunder after the date of such qualification except with the consent of the Council,granted upon such additional terms and conditions as the Council may deem proper. Such additional terms and conditions shall be expressed by resolution. (2319-10n8) 3.44,460 Materials used. All pipelines used or to be used for the transportation of oil,gas, gasoline,petroleum,wet gas and other hydrocarbon substances shall be first class and standard material as set forth by current American Petroleum Institute pipeline specifications. (2319-10/78) 2/84SCANNED - f` ? 'i Huntington Beach Municipal Code 3.44.470-3.44.500 y t f e 3.44,470 Approvals. On all pipelines laid pursuant to the franchise,the Director shall approve where flush-valve connections shall be placed in the line. The availability of adequate water supplies,the hydrocarbons transmitted in the line,and the location of control valves shall be considered when making such determination. Such flush-valve connections shall be installed in the manner prescribed by the Director. (2319-1 On8) 3,44,480 Deports. The franchisee during the life of the franchise,within sixty(60)days after the expiration of each franchise payment period, shall: (a) File with the Director two copies of a verified report of the franchisee showing for the immediately preceding franchise period,the length of lines in streets,the internal diameter of such lines,the rate per foot per year and the total amount due the city. (b) File with the Director a report in triplicate,showing the permit number of each permit obtained for the installation of new mains during the immediately preceding franchise payment period,together with the length and size of said mains. On this report the franchisee shall show any change in franchise footage since the last franchise payment period segregating such footage as to new mains laid,old mains removed,old mains abandoned in place, and the footage of mains in territory annexed or incorporated since the last franchise payment period. (2319-10178) 3,44.490 Paymg tts due..Except for pipelines lawfully maintained other than by the authority granted by the franchise,the annual payments shall accrue from the respective dates of installation,whether before or after the effective date of the franchise agreement,and such payments,together with the initial construction charges,if any,shall be due and payable annually. (2319-10/78) 3 44 500 Cost of relocation. Franchisee shall bear the costs of removing and relocating its facilities used and maintained under this franchise if made necessary by any lawful change of grade,alignment or width of any public street,way,alley or place,or for any public project,even if franchisee's facilities are located on a private easement. (2319-10178) .f. ORDINANCE NO. 3tQ�J i AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH GRANTING AN OIL PIPELINE FRANCHISE TO PACIFIC TERMINALS LLC WHEREAS, on April 7, 1958 by adoption of Ordinance No. 687, the City Council of the City of Huntington Beach granted to the Southern California Edison Company ("Edison") a pipeline franchise (the "1958 Franchise"); and On March 22, 2002, Edison and Pacific Terminals LLC, a California limited liability company ("Pacific Terminals," "Pacific" or "Franchisee") filed an Application ("A. 02-03-035") before the California Public Utilities Commission("CPUC") requesting the CPUC to approve the sale of certain assets from Edison to Pacific; and The assets subject to the sale include the 1958 Franchise; and On July 10, 2003, the CPUC approved with conditions A.02-03-035; and Pacific Terminals has applied to the Director of Public Works of the City of Huntington Beach for City.consent to the transfer of the 1958 Franchise to Pacific; and The City Council hereby consents to the transfer by way of this new Franchise to Pacific Terminals. By accepting this Franchise, Pacific Terminals hereby relinquishes any interest in the 1958 Franchise. By granting this Franchise, City does not release Edison from any claims the City presently has or may have in the future against Edison or any entity owned or controlled by Edison. NOW, THEREFORE, the City Council of the City of Huntington Beach does ordain as follows: Part One General Provisions Section 1.0 Grant of Franchise. Pursuant to Chapter 3.44 of the Municipal Code of the City of Huntington Beach, the City hereby grants a non-exclusive oil pipeline franchise (the "Franchise") to Pacific Terminals LLC to lay, operate, maintain, use, renew, repair, replace, move, change the size and number of and remove or abandon in place a system of pipelines, together with such valves, fittings, manholes, vaults, pumps and other appliances, appurtenances, attachments or equipment as the Franchisee may deem necessary or convenient for the purpose of conducting, transporting, conveying and carrying oil and petroleum, extending generally along the following route: (1) southerly along Bolsa Chica. Street from and including the intersection of Bolsa Chica Street and Westminster Avenue to Warner Avenue; (2) easterly along Warner Avenue to and including the intersection of Warner Avenue and Edwards Street; (3) g/04 ord/pacific term i nals/4/8/04 southerly along Edwards Street to and including the intersection of Edwards Street and Garfield Avenue; (4) easterly along Garfield Avenue to and including the intersection of Garfield Avenue and Newland Street; (5) southerly along Newland Street from the intersection of Newland Street and Garfield Avenue to Pacific Coast Highway, all as more particularly depicted as Exhibit A attached.hereto. In the event that the provisions of Chapter 3.44 and this Franchise conflict,the provisions of this Franchise shall apply. This Franchise only authorizes the transportation of oil and petroleum; the Franchise does not authorize the transportation of any other hazardous or non-hazardous substance, including but not limited to natural gas and water. As of the Effective Date, the diameter of the existing pipeline is 12" inches with a length of 42,830.22 and 20" with a length of 1,463.75 feet . This size shall be used for purposes of calculating the Franchise Fee pursuant to Section 3.1(a). Franchisee shall give the City ninety (90) days notice of any change in the size of the pipeline. Section 1.1 Definitions. For the purpose of this Franchise, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. "Shall" is mandatory and "may" is permissive..' (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 the Franchisee or any of Franchisee's Facilities or activities. Applicable Law includes all Municipal Code requirements for pipeline franchises, encroachment permits, excavation permits, and any other permit or agreement as required by the Code for any construction performed within the public right-of-way or within the public utility easements or public service easements located on private property, including but not limited to Chapters 3.44 and 12.13 of the Municipal Code. (b) "City"shall mean the City of Huntington Beach, a municipal corporation. (c) "City Clerk shall mean the City.Clerk.of the City of Huntington Beach.. (d) "City Council" shall mean City Council of the City of Huntington Beach. (e) "City Property" shall mean the property or facilities owned by the City of Huntington Beach or property owned by any of the City's affiliated agencies. (f) "Claims" shall mean all claims, losses, liabilities, causes of action, demands, damages, suits, judgments, debts, costs, contribution or indemnity, expenses (including but not limited to.attorney's fees and costs) fines, penalties, judgments, orders, injunctions and liens of every kind and nature, including, but not limited to, claims relating to any Environmental 9• g/04 ord/pacific terminals/4i&04 2 Condition or any Release of any Contaminant, claims for personal or bodily injury, wrongful death, injury to real or personal property, natural resources damages, and including claims based on active or passive negligence, gross negligence, contractual, statutory or strict liability, or otherwise, and any claims seeking judicial or administrative relief, or relating to any administrative proceedings by.:any governmental agency, whether or: not any. such claim is ultimately defeated. (h) "Contaminant" shall mean any material, substance or constituent originating from Franchisee's facilities or activities, whether solid, liquid, semisolid, or gaseous in nature, including any hazardous substance or waste, hazardous material, chemical compound, petroleum (or fraction thereof), or any hydrocarbon substance, pollutant or contaminant, as those terms are defined by any federal, state or local law, rule, regulation or order. (i) "Day" shall mean calendar day unless otherwise provided. 0) "Department" shall mean the Public Works Department of the City of Huntington Beach. (k) "Director" shall mean the Director of the Department of Public Works of the City of Huntington Beach, or his written designee. (1) "Effective Date" is July 31, 2003, the date that Pacific Terminals closed escrow on the acquisition of the Facilities from Edison: (m) "Environmental Condition" shall mean the presence or evidence of the likely presence of any Contaminant originating from Franchisee's Facility (s) or from Franchisee's activities, in surface water, ground water drinking water supply, soil, land surface, subsurface strata or the air. (n) "Facility" or"Facilities" shall mean a system of pipelines, together with such valves, fittings, manholes, vaults, pumps and other appliances, appurtenances, attachments or equipment as the Franchisee may deem necessary or convenient for the purpose of conducting, transporting, conveying and carrying oil and petroleum under and across the public streets, ways, alleys and places within the City of Huntington Beach. (o) "Fire Chief' shall mean the Chief of the Huntington.Beach Fire Department. (p) "Franchise" shall mean this Ordinance granting a Franchise to Pacific Terminals LLC, unless some other franchise is specified. (q) "Franchisee" shall mean Pacific Terminals LLC and its successors and assigns. (r) "Franchise Payment Period" shall mean the time period between the Effective Date of this Franchise and December 31 of the same year, and each calendar year thereafter, during the life of the Franchise. g/04 ord/pacific terminals/4/8/04 3 a (s) "Franchise Report Period" in all cases shall mean the time period between the • Effective Date of this Franchise through and including December 31 of that year, and each calendar year thereafter, during the life of the Franchise. (t) "Municipal Code shall mean the Municipal Code of the.City of Huntington Beach. .. (u) "Person" shall mean any individual,person, firm,partnership or corporation. (v) "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)3), 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)1), or any discharge, active or passive migration, deposit, storage, burial, emplacement, seepage, filtration or disposal of a Contaminant into the environment originating from any Facility or from Franchisee's activities. (w) "Remediation Costs" shall mean all costs and expenses, including the City's current rate of overhead, incurred by the City in performing and monitoring any Remedial Work. (x) "Remedial Work" means all "Remedial Action", as that term is defined in Section 101(24) of CERCLA [42 U.S.C. §9601], and all other actions as are necessary or required to remediate a Release of any Contaminant or an Environmental Condition to a condition which would allow unimpaired and unrestricted use and development and would comply with Applicable Law, and including but not limited to all actions necessary to Respond to, Remove, or Remedy, as those terms are defined in Sections.101(23), 101(24) and 101(25) of CERCLA [42 U.S.C. §9601], a Release of a Contaminant or Environmental Condition. (y) "Street" shall mean any street, road, highway, alley, lane or court or other public easement, which now exists or may hereafter exist in the City of Huntington Beach and in which the City has the authority to grant a Franchise. Section 1.2 Facilities; Encroachment Permits. Franchisee may not perform any work on the Facilities without obtaining an encroachment permit from the Director pursuant to Chapter 12.13 of the Municipal Code. Franchisee further acknowledges that Section 3.44.380 of the Municipal Code does not authorize installation of above-ground appurtenances pursuant to this Franchise. Notwithstanding Section 3.44.380, Franchisee may apply for an encroachment permit to. install above-ground appurtenances, which the. Director may grant in his reasonable discretion: Section 1.3 Term. The Franchise Tenn shall begin on the.Effective Date and terminate fifteen (15) years after the Effective Date, on July 31, 2018. The Director is hereby authorized to enter into a memorandum of understanding with Pacific Terminals memorializing the Effective Date and termination date of this Franchise, which memorandum shall be filed with the City Clerk. No later than 120 days before expiration of the term of this Franchise, Franchisee may apply in writing to the Director for a five-year extension of the Franchise. If the Director finds that, throughout the term of this Franchise, Pacific has been in substantial and material compliance with all the terns of this Franchise, he shall extend the Franchise without further g/04 ord/pacific terminals/4/8/04 4 City Council approval. The Director's decision to extend or not extend the Franchise may be appealed to the City Council by any person within fourteen (14) days of the Director's decision. A second five-year extension of this Franchise ma} be granted pursuant to the above procedures. Section 1.4 Acceptance of Franchise. The Franchisee shall, within thirty.(30) days after the passage of this Ordinance, file with the City Clerk of the City of Huntington Beach written acceptance of the terms and conditions of this Franchise in the form set forth in Exhibit B, attached hereto. The Franchisee shall accept the Franchise within the designated time. The Franchise shall be null and void if the written acceptance is not filed within the prescribed time. Section 1.5 Nonexclusive Franchise. The granting of this Franchise shall not prevent the City from granting any identical or similar franchise to any Person other than the Franchisee. Section 1.6 Change in Status. If the Franchisee no longer qualifies before the Public Utilities Commission of the State of California as a common carrier, the Franchisee shall then have no right to continue to operate hereunder after the date of such disqualification, except with the consent of the Council granted upon such additional terms and conditions as the Council may deem proper. Such additional terms and conditions shall be expressed by Ordinance. Section 1.7 Forfeiture. The Franchise is granted and shall be held and enjoyed upon each and every condition contained in this Franchise and shall be strictly construed against the Franchisee. The Franchise shall grant only those rights that are stated in plain and unambiguous terms. Failure or refusal to.comply with any of the conditions of the Franchise, including the ; failure to comply with any. Applicable Law, shall constitute grounds .for the suspension.:or . forfeiture of the Franchise in accordance with the terms and procedures specified in Part Five. Section 1.8 Eminent Domain. The Franchise granted hereunder shall not in any way to any extent impair or affect the right of the City or any successor to acquire the property of the Franchisee 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 abridge, either for a term or in perpetuity, the City's rights of eminent domain before any court or other public authority in any proceeding of any character. Section 1.9 Assignment. The Franchisee shall not directly or indirectly sell, transfer, assign or lease the Franchise or any part thereof, or allow another Person or entity to operate any pipeline or related Facility subject to the Franchise, except with the consent of the Council, which consent shall not be unreasonably. withheld. Such sale, transfer, assignment lease or agreement shall be made only by filing with the Council a copy of the duly executed instrument of such sale, transfer; assignment lease or agreement and a written request for the consent of the Council to such sale, transfer, assignment, lease or agreement. If such duly executed instrument and such written request is not filed with the Council before the expiration of sixty (60) days after the effective date of such sale, transfer, assignment or lease, then, upon the expiration of said sixty (60) days, the Franchise shall be subject to forfeiture and the Council may, without notice, by Ordinance, repeal the Franchise. As a condition to the granting of consent to such sale, transfer, assignment, lease or agreement, the Council may impose such reasonable additional terms and conditions upon the Franchise and upon the Franchisee or assignee, which the Council ,004 ord/pacific terminals/4/8/04 5 may deem to be in the public interest. Such additional terms and conditions shall be expressed by Ordinance. The Franchisee shall have no right to sell, transfer, assign or lease the Franchise, or any part thereof, except in the manner aforesaid. This Section applies to any assignment, whether by operation of law, by a voluntary act of the Franchisee or otherwise, and includes a transfer of more than fifty.percent (50%) of the voting stock of any -corporate. grantee or the change in identity of any general partner of a Franchisee which is a partnership, whether to`a third party or to any subsidiary,parent, or affiliated agency of Franchisee. Section 1.10 Prior Franchises. All Facilities erected, constructed, laid,.operated or maintained by the Franchisee in the streets, whether installed by the Franchisee or not, prior to the Effective Date of this Franchise shall become subject to all the terms and conditions of this Franchise upon such Effective Date. Section 1.11 City Officers. Any right or power conferred, or duty imposed upon any officer, employee or Department of the City shall be subject to transfer to any other officer, employee, or Department of the City. Section 1.12 Severability. If any part of this Franchise or the application thereof to any Person or circumstances is for any reason held invalid by a court of competent jurisdiction, the validity of the remainder of the Franchise or the application of such provision to other Persons or circumstances shall not be affected. Section 1.13 Release of Products or Contaminants. Notwithstanding any other provision herein, in .the event of Release of s a Contaminant _by Franchisee .or from.any Facility of Franchisee or the discovery of an Environmental Condition caused by Franchisee or any Facility of Franchisee, Franchisee shall immediately conduct such Remedial Work and pay all Remediation Costs, at its -sole expense, as is necessary to fully mitigate and remediate the same in accordance with all Applicable Law, and as directed by the City except to the extent that City direction conflicts with Applicable Law. In the event that Franchisee fails to perform necessary remediation work, City may impose liquidated damages and/or Franchise termination pursuant to Part 5 of this Franchise, or take any other legal action the City deems appropriate in the circumstances. Section 1.14 Compliance With Applicable Law. Until such time as (i) the Franchise terminates; and (ii) the Franchisee removes all of its Facilities; and (iii) completes any necessary Remedial Work,Franchisee will comply with all Applicable Law. Section 1.15 : Notices and Records. Upon request, Franchisee will transmit to City copies of all notices, orders or statements, other than those relating to taxes, sent to or received from any governmental agency concerning any Facility or any operations conducted by Franchisee in the City pursuant to the Franchise. Upon request, Franchisee shall send to the City copies of requested documents concerning any Facility or any operations conducted by Franchisee pursuant to the Franchise sent to any other governmental agency concurrently with sending them to the other agency and shall send to City documents received by Franchisee within five days of receipt by Franchisee unless providing documents to City would conflict with Applicable Law. lq g/04 ord/pacific terminals/4/S/04 6 Section 1.16 Access to Records and Property. Upon request, the Franchisee shall permit the City or its duly authorized representative to examine all of Franchisee's Facilities, together with any appurtenant property of the Franchisee, and to examine and transcribe any and all books, accounts, papers, maps, and other records kept or maintained by the Franchisee.or:under its control which concern the operations, affairs,transactions or property of.the Franchisee with respect thereto. Said records shall be made available to the City at a location in either the County of Orange or the County of Los Angeles. Section 1.17 Removal or Abandonment of Facilities. Subject to Applicable Law, at the time of the expiration (unless extended), revocation, or termination of this Franchise, or the permanent discontinuance of the use of its Facilities, or any portion thereof, the Franchisee shall, within thirty (30) days thereafter make written application to the Director and to the City Fire Chief for authority to either abandon all or a portion of such Facilities in place or to remove all or a portion of such Facilities. Thereupon the Director and the Fire Chief jointly and unanimously shall determine whether any abandonment or removal which is thereby proposed may be effected without detriment to the public interest or under what conditions such proposal of abandonment or removal may be safely affected and shall then notify the Franchisee according to such requirements as shall be specified in the Director's order. In order to make their.determination, the Director and the Fire Chief may require the Franchisee to pressure test the Facilities, to complete a sample testing program requiring borings and physical examination of the integrity of the Facilities, and such other steps as they deem reasonable. The Franchisee . shall.pay to. the City the cost of all tests required to determine whether the Facilities shall be abandoned or removed. Within ninety (90) days after receipt of the Director's and Chiefs order, Franchisee shall, pursuant to such order, remediate the soil surrounding the Facilities pursuant to the standards of Applicable Law, and either (a) remove all or a portion of such Facilities; or (b) abandon in place all or a portion of such Facilities in accordance with all conditions prescribed. If any Facilities to be abandoned in place, subject to prescribed conditions, shall not be abandoned in accordance with all of such conditions, then the Director may make additional appropriate orders, including if deemed appropriate, an order that the Franchisee shall remove all such Facilities. If the Director and Fire Chief approve abandonment in place of all or part of the Facilities, the Franchisee shall pay to the City a fee in the amount the Director reasonably determines to be equal to one-half of the cost of removal of the Facilities Section 1.18 Appeal. Any decision made by the Director pursuant to authority delegated in this Franchise may be appealed by any person to the City Council. For purposes of seeking judicial review, the decision of the City Council shall be final when notice of the decision is mailed by first class mail to the Franchisee. g/04 ord/pacific term i nals/4/8/04 7 e Part Two Liability. Indemnification and Insurance Section 2.1 Liability. The Franchisee shall be liable to the City for damage to City property, including but not limited to any street, or any other cost.incurred by the.City.caused by Franchisee, any of Franchisee's Facilities or by any Person acting on Franchisee's behalf. The Franchisee shall be held to a standard of strict liability to City for any activity conducted pursuant to or in connection with the Franchise. The Franchisee's strict liability shall extend to any consequential damages incurred by the City, and to any costs, including Remediation Costs, incurred by the City for control or abatement of any Environmental Condition, Release of Contaminants, Remedial Work or resulting from any activity conducted by or on behalf of Franchisee pursuant to the Franchise. Section 2.2 Damage to City Property. Any damage done to City property by Franchisee in exercising any right, power, or privilege under this Franchise, or in performing any duty under or pursuant to the provisions of this Franchise, shall be promptly repaired by Franchisee at its sole cost and expense to as good a condition as it was before such damage was incurred, to the satisfaction of the Director. If the Franchisee, within ten (10) days after receipt of written notice from the City, instructing it to repair such damage, shall fail to commence to comply with such instructions, or, thereafter, shall fail diligently to prosecute such work to completion, then the City immediately may do work necessary to carry out said instructions at the cost and expense of the Franchisee, which cost and expense, by the acceptance of the Franchise, the Franchisee agrees to pay upon demand. 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 the Franchisee agrees to pay all costs incurred. Section 2.3 Indemnification. The Franchisee shall indemnify to the fullest extent permitted by law, and defend and hold the City, and its Council members, employees, remediation consultants, environmental consultants, agents and attorneys free and harmless from and against all Claims arising from or in any way related to the Franchise or activities conducted by or on behalf of Franchisee. The City and the other parties indemnified herein shall have the right to approve the attorneys selected by Franchisee to represent them. In the event Franchisee does not provide attorneys acceptable to the indemnified parties, the indemnified parties may select attorneys of their choice, so long as the attorney's rates do not exceed the lesser of the rates the indemnified parties or the Franchisee pays for other legal services. The indemnity provided herein shall survive the expiration or other termination of the Franchise. Section 2.4 Insurance. Franchisee shall for the duration of this Franchise, at Franchisee's sole cost and expense, keep or cause to be kept in full force and effect, for the mutual benefit of City, its officers, elected or appointed officials, employees, agents and volunteers, and Franchisee, the following insurance coverages: (a) A comprehensive form of commercial general liability insurance, including but not limited to coverage for liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and protecting against claims, liability and defense costs _ g g/04 ord/pacific terminals/4/8/04 8 arising from Franchisee's exercise of the rights granted by this Franchise, including the use, construction, and/or maintenance of the Facilities authorized by this Franchise, of at least three million dollars ($3,000,000)per occurrence. (b) Pollution legal liability coverage applicable to bodily injury, property damage, cleanup costs, and defense, including costs and expenses incurred in the investigation, defense, or settlement of claims, all in connection with any pollution loss arising from the Facilities. Coverage shall be maintained in an amount of at least two million dollars ($2,000,000) per loss, with an annual aggregate of at least ten million dollars ($10,000,000). (c) Business auto insurance covering Franchisee's owned, non-owned and hired vehicles, with limits of not less than three million dollars ($3,000,000) each accident. (d) Workers' compensation and employer's liability coverage as required by statute. All insurance required by provisions of this Franchise shall be carried only in responsible insurance companies licensed to do business in the state of California and having a Best rating of no less than A:VII. All such policies shall contain endorsements to the effect that (a) the insurer waives the right of subrogation against the City, including its elected officials, officers, employees and agents; (b) the policies are primary and noncontributing with any insurance that may.be carried by the City; (c) they cannot be cancelled or materially changed except after providing no less than thirty-days prior written notice to the City;.and (d) the City, its elected officials, officers and employees are named additional insureds under the commercial general liability and pollution legal liability policies. Franchisee shall furnish City with copies of all such policies promptly upon receipt of them, or certificates with endorsements evidencing the insurance, prior to exercising any of the rights granted by this Franchise. Thereafter, Franchisee shall provide evidence of renewal or replacement of a policy already in existence and required by this Franchise, no less than twenty days' prior to expiration or other termination of such policy. The liability policies required by this Section may provide for deductibles or retentions of up to Ten Thousand Dollars ($10,000.00)per claim. Notwithstanding the foregoing, if the Franchisee submits appropriate assurances, and with the joint approval of the City's Director of Public Works,:Risk Manager and..City.Attorney, which may be denied in their.reasonable discretion, the deductible may be increased up to Two Million Dollars ($2,000,000.00). The Franchisee shall file with the City Clerk endorsement and certificates of insurance for each of the required policies executed by the company issuing the policy, certifying that the policy is in force and providing the following information with respect to said policy: (a) The policy number; (b) The date upon which the policy will become effective and the date upon which it will expire; g/04 ord/pacific term i nals/4/8/04 9 F (c) The names of the named insured and any additional insured; (d) Subject of the insurance; (e) The type of coverage provided by the insurance; (f) Amount of limit of coverage provided by the insurance; (g) A description.of all endorsements that form a part of the policy. The Franchisee shall not commence operations until Franchisee has complied with this Section. The Franchisee shall cease operations if the Franchisee fails to maintain said policies in full force and effect. In the event any policy is cancelled or reduced in amount or scope or coverage, the Franchisee shall provide the City, not later than fifteen (15) days prior to the effective date of the cancellation or reduction in coverage, a certificate of insurance showing that the Franchisee will have replacement.insurance in full force and effect after the effective date of the cancellation or reduction in coverage and shall provide a certified copy of such replacement insurance meeting the requirements of this section. Not more frequently than once every two (2) years, if, in the sole opinion of City, the amount and/or scope of the above insurance is not adequate, Franchisee shall adjust the insurance coverage required under this Section as reasonably required by City. Section 2.5 Faithful Performance; Letter of Credit. (1) Letter of Credit. The Franchise shall establish a letter of credit in the sum of Twenty Thousand Dollars ($20,000.00) within forty-five (45) days after the Effective Date of this Franchise. The letter of credit shall.be in a form consistent with Exhibit C, attached hereto. The City may draw on the letter of credit any amounts assessed as liquidated damages pursuant to Part Five. The Franchisee shall restore to the letter of credit any amount the City withdraws as liquidated damages, within thirty(30) days after the City withdraws the money. The Franchisee may provide cash or a cash equivalent in substitution of the letter of credit including without limitation a certificate of deposit or savings account, the rights of which have been signed over to the City. Any interest accrued on such cash or cash equivalent security shall be paid over annually to the Franchisee. Franchisee's recourse, in the event Franchisee believes any taking of funds from the Letter of Credit is improper, shall be through legal action, after the Letter of Credit has been drawn upon. (2) Surety. As an alternative to establishing a Letter of Credit securing the payment of liquidated damages as set forth in Part Five, the Franchisee may obtain a surety bond acceptable to the City, to guarantee the sum of Fifty Thousand Dollars ($50,000.00). The Surety Bond shall be in a,form acceptable to the City and shall be submitted within forty-five (45) days after the Effective Date of this Franchise Agreement. The form of the Surety Bond shall contain, at a minimum: (a) That the surety is licensed in California and maintains a Best's Financial Size Category of IX. l� g/04 ord/pacific terminals/4/8/04 10 (b) That the surety holds a Certificate of Authority from the United States Department of the Treasury as an acceptable reinsuring company pursuant to Department Circular 570 as published in the Federal Register. (c), The surety shall have a Best's insurance rating of not less than A. (d) The principal amount of the obligation shall be Fifty Thousand Dollars ($50,000.00). (e) The obligation by the surety to pay the principal amount to the City is unconditional pursuant to Civil Code Section 2806. (f) The liability of the surety for the payment of the principal amount accrues immediately upon the default of the Franchisee, and without demand or notice pursuant to Civil Code Section 2807. (g) The surety shall waive any defense based on or arising out of any defense of the Franchisee other than payment in full of the principal amount including, without limitation, a defense based on or arising out of the disability of the Franchisee,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 Cityto proceed against the Franchisee or pursue any other remedy in the.City's power.Further, said 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. (h) The surety shall also undertake to pay reasonable attorneys' fees and other costs incurred by the City in enforcing the Surety Bond. (i) Franchisee shall require said surety to submit to the City documentation evidencing the above requirements and any documentation required of the Franchisee by the surety for the purpose of ascertaining Franchisee's financial condition. Part Three Compensation Section 3.1 Rates. As consideration for the Franchise granted, the Franchisee shall pay to the City in lawful money of the United States the following: (a) Annual Franchise Fee. Pursuant to City Code § 3.44.260, the Franchisee, as consideration for the Franchise, shall, within sixty (60) days after the end of each calendar year during the life of the Franchise, including the year of granting the l� J04 ord/pacific terminals/4/8/04 11 a Franchise, pay to the City a fee based on the formula set forth in Public Utilities (P.U.) Code § 6231.5. For pipelines with an internal diameter not listed in P.U. Code § 6231.5, the fees shall be in the same proportion to the fees of a 12-inch- diameter pipe as the diameter of the unlisted pipe is to 12 inches. As of the Effective Date of that Franchise, the Franchise Fee shall be $ 0.26 per linear foot of 12"pipeline and $ 0.44 per linear foot of 20"pipeline,multiplied by the applicable Consumer Price Index. Consequently, the Franchise Fee for the prorated period from the Effective Date through December 31, 2003 shall be $7,095.88. This amount shall be paid within sixty (60) days after the end of calendar year 2003 or passage of this Ordinance, whichever occurs later. The Franchise Fee for the prorated period from January 1, 2004 through December 31, 2004 shall be $17,571.70. (b) Base Construction Fee. In addition to the Annual Franchise Fee, any fees imposed by Applicable Law and any fees or conditions on any encroachment permit issued for street work, pursuant to Municipal Code Section 3.44.280, the Franchisee shall pay at the time of installation, relocation, or replacement of any pipeline or other Facility covered by the Franchise, a Base Construction Fee of One Dollar ($1.00) for each foot of pipeline or fractional part thereof installed, replaced or relocated in, on or under streets or other rights-of-way within the City. The Base Construction Fee shall be escalated in accordance with the provisions of Section - 3.44.290 of the Code, with the base year. being January 1,200.3 through December 31, 2003. .This fee shall not be applicable to work performed pursuant to Section 4.13. (c) Publication and Administrative Issuance Costs. The Franchisee shall pay to the City within thirty (30) days after receiving a statement therefor, all reasonable administrative and other costs, including attorneys fees, incurred by the City in processing the application for a Franchise, including but not limited to the preparation of any reports, statements or studies pursuant to the California Environmental Quality Act ("CEQA") (Public Resources Code §§ 21000, et seq.) and any similar Federal statute, or any successor statute, and for all reasonable advertising and publishing costs, including the cost of publishing the Franchise, if necessary, incurred in connection with the granting of the Franchise. In the event that environmental studies or reports are not required, such costs shall not.exceed ten thousand dollars ($10,000). Section 3.2 Late Franchise Fee Payments. (a) Fees and rates due from the Franchisee 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 return must be received by the Treasurer during normal business hours on the first regular working day following the weekend or legal holiday. A direct deposit, including electronic fund transfers aand other similar methods of electronically exchanging monies between financial 1l1 �s g/04 ord/pacific terminals/4/8/04 12 accounts, made by the Franchisee in satisfaction of its obligations under this Section shall be considered timely if the transfer is initiated on or before the due date, and the transfer settles into the City's account on the following business day. (b) If the Franchisee fails to remit any fee or rate on or before the due date, the Franchisee shall pay a penalty for such delinquencies at the rate of ten percent (10%) of the total that is delinquent in the remittance. (c) If the fee or rate is not received by the Treasurer within thirty (30) days following the date on which it first became delinquent, the Franchisee shall pay a second delinquency penalty of ten percent (10%) of the amount of fee or rate in addition to the amount of the fee or rate and the penalty first imposed. (d) The City Treasurer shall have the power to impose additional penalties upon the Franchisee for fraud or gross negligence in reporting or remitting at the rate of twenty-five percent (25%) of the amount of the fee or rate required to be remitted. (e) In addition to any other penalties imposed by this Section, the Franchisee shall pay interest at the rate of one and one-half percent (1-1/2%) per month, or any fraction thereof, on the amount of the fee or rate, exclusive of penalties, from the date on which the fee or rate first became delinquent, until paid. (f) For collection purposes only, every penalty imposed and. such interest that is accrued under the provisions of this section shall become a part of.the fee or rate herein required to be paid. Section 3.3 Proration of Payments. In the event of abandonment of Facilities in compliance with Section 1.19 or in the event of removal of such Facilities by the Franchisee, the annual franchise fee required under Section 3.1 shall be prorated for the calendar year in which such removal or abandonment occurs as of the end of the calendar month in which removed or abandoned. Section 3.4 Records. The Franchisee 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. Part Four Construction Section 4.1 Construction Requirements. (1) Pipelines and all other Facilities shall be constructed and maintained in a good workmanlike manner and in conformity with Applicable Law and in accordance with the latest edition of Standard Specifications for Public Works Construction or other construction standards per the approved encroachment or excavation permit (HBNiC 12.10). lq/ '2 gJ04 ord/pacific terminals/4/8/04 13 a (2) All construction shall be accomplished between the hours specified by the City in the approved encroachment or excavation permit or Applicable Law. (3) Prior to commencing any Street work, Franchisee shall submit to Director detailed engineering and traffic control plans, including site-specific hours of construction, prepared underthe supervision of a professional civil engineer or traffic engineer licensed.to practice in the State of California. No construction related activities may be conducted in the Street without a City- approved encroachment or excavation permit, engineering plans, and a traffic control plan. a (4) Franchisee 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 Franchisee. Franchisee shall respond in a timely manner. Unless the Director grants an extension, which the Director shall not unreasonably deny, Franchisee shaII correct within twenty-four hours any adverse impact to the Streets caused by Franchisee's Facilities. (5) Every working day during construction, Franchisee 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. Section 4.2 Automated Equipment: . Within 5 years of the acceptance of the grant:of • Franchise, Franchisee.shall install such controls, valves and other appurtenances. sufficient to remotely monitor and control the operations of the pipeline and storage interface within the City of Huntington Beach. Such controls and equipment shall include the capability of remotely detecting leaks, spills or releases of petroleum products from Franchisee's facilities within the City of Huntington Beach. Section 4.3 New Installation or Replacement. New installation or replacement of pipelines and all other Facilities necessary for the installation, operation, maintenance, and safety of pipelines and conduits shall be laid and maintained pursuant to Applicable Law. All such installations or replacements shall be reviewed by the Director as to the most desirable location in the streets of the City and his or her decision shall be final and binding on the Franchisee subject to appeal to the Council pursuant to Section 1.18. Section 4.4 Permits. Where the provisions of any Applicable Law, which shall be in force at the time, require the issuance of an excavation, encroachment or other type of permit,the Franchisee shall not commence anv excavation or encroachment work under the Franchise until it shall have obtained such permits, except in cases of emergency affecting public health, safety or welfare or the preservation of life or property, in which case the Franchisee shall apply for such permits not later than the next business day. The Franchisee's application for a permit under Applicable Law shall show the length and proposed location of the pipeline and/or other Facility intended to be installed, and such other facts as the Department may require. The Franchisee shall pay any and all permit inspection fees to the Department. __ IQJ# I V g/04 ord/pacific terminals/4/8/04 14 Section 4.5 Work on and Restoration of Streets. The work of constructing, laying, replacing, maintaining, repairing or removing all pipelines and other Facilities authorized under the provisions of this Franchise in, over, under, along or across any Street shall be conducted pursuant to HBMC §§12.13.120 — 12.13.150 to minimize hindrance to the use of the Street for purposes of travel, and. as soon as such.work is.completed, all portions of the Street which have been excavated or otherwise damaged. thereby shall promptly and in'a workerlike manner be repaired, replaced or restored and placed in as good condition as the same was before the commencement of such work. When repairing Street work, Franchisee shall grind and overlay the full width of any lane or partial lane which has been excavated or otherwise damaged. In the event that the Franchisee shall fail or neglect to make such Street repair, replacement, or restoration work, then ten (10) days after notice therefor has been given Franchisee by the Director, the City may repair, replace or restore said highway at the expense of Franchisee. The Franchisee agrees to pay to the City the cost of performing such work. The amount so chargeable shall be the direct cost of such work plus the current rate of overhead being charged by the City for reimbursable work. Section 4.6 Failure to Timely Comply. Whenever the Franchisee fails to complete any work required by the terms and conditions of the Franchise, and the permits issued thereunder, Within the time limits required thereby, the City may complete or cause to be completed said work in compliance with Applicable Law at the expense of the Franchisee. The Franchisee agrees to pay to the City the cost of performing such work. The amount so chargeable to • Franchisee shall be the reasonable direct cost of said work plus the current rate of overhead being charged by the City for reimbursable work. Section 4.7 Completion Statement. Upon the completion of the construction of any pipelines or other Facilities constructed pursuant to this Franchise, the Franchisee shall submit a statement to the Director, identifying the permit or permits issued by the Department, the total length of pipeline, pipeline material, diameter of pipeline, the construction of which was authorized under such permit or permits, the total length of pipeline or other Facility actually laid, and as-built drawings. Section 4.8 Shoring. The Franchisee will provide at its sole cost such shoring or other support as shall be reasonably required to support, maintain, and protect Franchisee's facility in connection with any storm drain or sewer constructed by the County of Orange or other duly- constituted authority or in connection-with any facility.constructed by City, or by any successor agency of any of these agencies. Section 4.9 Maps. Within ninety (90) days following the date in which any Facilities have been laid, removed or abandoned under the Franchise, the Franchisee shall file a map or maps in City-approved digital format with the Department showing the location, depth, and size of the Facilities so laid,removed or abandoned. Section 4.10 Facilities. The Franchisee shall have the right to construct, maintain and repair such traps, manholes, conduits, valves, appliances, attachments and other Facilities as may be necessary or convenient for the proper maintenance and operation of the pipelines under said g/04 ord/pacific terminals/4/8/04 15 Franchise, and said Facilities shall be kept flush with the surface of the street and so located as to • conform to any Franchise, rule or regulation of the City, or of any permit issued by the Department in regard thereto and shall not interfere with the use of the street for travel. The Franchisee shall have the right, subject to such Franchises, rules or regulations as are now or may hereafter.be in force., to make all. necessary excavations.in said.streets for the construction, maintenance and repair of said Facilities; provided, however, :that the .Franchisee shall first obtain an excavation permit from the Department for doing any such work. Section 4.11 Ordinary Repair. The Franchisee shall obtain an excavation permit from the Department to perform repair work. In the event of a condition that could cause a threat to public health or safety and requires emergency repair work, the Franchisee shall proceed with the repairs and notify the Department as soon as possible,not later than the next business day. Section 4.12 Breaks or Leaks. If any portion of the street shall be damaged by reason of breaks or leaks in any pipe, conduit or appurtenance constructed or maintained under the Franchise, the Franchisee shall, at its own expense, immediately following written or oral notification thereof, promptly repair any such damage and put such street in as good condition as it was in before such damage or leak, all to the satisfaction of the Director. The Franchisee shall obtain an excavation permit from the City for doing any such work. Section 4.13 Relocation. If, in the sole discretion of the Director, subject to appeal to the Council pursuant to Section 1.20, the Franchisee's Facilities conflict in any way with the construction, relocation or repair of any City or. Redevelopment_ Agency facility or project, or any storm drain or. sewer owned .by the. County of Orange or other authority or any successor agency of any of these entities, the Franchisee shall relocate its facility to the reasonably nearest alternative location or other location mutually agreeable to the City and the Franchisee necessary to accommodate the construction, relocation or repair of the storm drain, sewer or City facility, either permanently or temporarily, as is determined by the Director to be required within the time required by the Director. Said relocation shall be accomplished at the Franchisee's sole expense. If the Franchisee fails to relocate its Facility within the required time, or fails to pave, surface, grade, repave, resurface or regrade in a timely manner, the City, to the extent permitted by Applicable Law, may cause the work to be done and shall keep an itemized account of the entire cost thereof, and the Franchisee shall reimburse the City or other public entity for such cost within thirty (30) days after presentation to said Franchisee of an itemized account of such costs. The Franchisee shall hold harmless the City, its officers, departments and employees and the other public agency, if any,.from any liability which may arise or be claimed to arise from the .moving, cutting, or alteration of any. of the Franchisee's Facilities, or the turning on or off of water, oil, or other liquid, gas, or electricity required to be accomplished by City or any other public agency as a result of the Franchisee's failure to relocate said facility by the date established by the City or other public agency. The Franchisee shall also be liable for any consequential damages incurred by the City or other public agency arising from the Franchisee's failure to timely complete the work required by this section. Section 4.14 Force Maieure: Franchisee's Inability to Perform. In the event Franchisee's performance of any of the terms, conditions or obligations of the Franchise is prevented by any cause beyond Franchisee's reasonable control, such inability to perform shall _ Ib g/04 ord/pacific terminals/4/8/04 16 be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided Franchisee has notified City in writing «zthin seven (7) days of its discovery of the occurrence of such an event. In such an instance, Franchisee shall have reasonable time, under the circumstances, to perform its Franchise obligations or to procure a substitute for such obligation which is satisfactory to the_City. For the purpose of this Section, causes or events not within the.control.of the Franchisee shall include, but not be limited to acts"of God, sabotage,. riots or civil disturbances, epidemic, freight embargoes, explosion, natural disasters such as floods, earthquakes, landslides and fires, rationing, and power or communications failures, but shall not include financial inability of the Franchisee to perform or failure of the Franchisee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is materially due to the acts or omissions of the Franchisee. Part Five Breaches of Franchise Section 5.1 Liquidated Damages. The City finds, and the Franchisee, by its Acceptance, agrees, that as of the time of the renewal of this Franchise, it is impractical, if not impossible to reasonably ascertain the extent of damages which «-ill be incurred by the City as a result of a material breach by the Franchisee of its obligations under this Franchise. Accordingly, the City, through its Director, Council or a hearing officer, may, in its discretion, assess liquidated damages in the follo«-ing amounts: (1) Up to two hundred dollars ($200.00) for each day of each material breach, not to exceed six thousand dollars ($6,000.00) for each occurrence of material breach; (2) For a second material breach of the same nature occurring within 12 months where a fine or penalty was previously assessed, up to four hundred dollars ($400.00) for each day of each material breach, not to exceed twelve thousand dollars ($12,000.00) for each occurrence of the material breach; (3) For a third or further material breach of the same nature occurring within those same. 12 months, where a fine or.penalty was previously assessed,up.to one thousand dollars ($1,000.00)for each material breach, not to exceed thirty thousand dollars ($30,000.00) for each occurrence of -the material breach. (4) Notwithstanding the above, in the event that the Franchisee fails to complete the street restoration work within the time specified in the encroachment or excavation permit, the City may require the Franchisee to pay to the City one thousand dollars ($1,000.00) per day as liquidated damages for each day construction extends beyond the time specified in the permit, or any extension thereof. g/04 ord/pacific tcnninals/4/E/04 17 a Prior to assessing any liquidated damages against the Franchisee, the City shall have provided Franchisee with notice and opportunity to cure in accordance with the provisions of Section 5.3. The City finds,.and the Franchisee, by.its Acceptance, acknowledges and agrees that the above-described liquidated.damages provisions represent a reasonable sum in light of All of the circumstances. Said liquidated damages sums shall be applicable to each calendar day of delay following expiration of the 30-day notice period provided above during which Franchisee has been found by the City Council to be in material default pursuant to this Section. The Franchisee shall pay any liquidated damages assessed by the City Council within ten (10) days after they are assessed. If they are not paid within the ten-day period, the City may withdraw them against the letter of credit or similar security provided pursuant to this Franchise. Section 5.2 Breach of Franchise: Grounds for Assessment of Penalties and Franchise Termination. The City reserves the right to terminate the Franchise or assess damages or penalties against the Franchisee in the event of a material breach of any of the Franchise terms, or any material term of any applicable federal , state or local statute or regulation, which breach is not cured following written notice and a reasonable opportunity to cure. Breaches which are grounds for termination include, but are not limited to: (1) If the Franchisee fails to comply with Applicable Law. (2) If the Franchisee practices, or attempts to practice, any fraud or deceit upon the City... (3) If the Franchisee becomes insolvent,unable or unwilling to pay its debts, or upon listing of an order for relief in favor of Franchisee in a bankruptcy proceeding. (4) If the Franchisee fails to provide or maintain in full force and effect, the liability and indemnification insurance letter of credit or bonds as required by the Franchise. (5) If.the Franchisee willfully fails to provide City with required information and/or reports in a timely manner and upon City request, as provided in the Franchise. (6) : If the Franchisee fails to pay the Franchise fee within 60 days after the fee is due, then the City may terminate the Franchise or impose additional penalties pursuant to this Section 5 in addition to the penalties and interest authorized in Section 3.2. (7) Any other willful act or omission by the Franchisee which materially violates the terms, conditions or requirements of the Franchise or any order, directive, rule or regulation issued thereunder and which is not timely corrected or remedied pursuant to Section 5.3 of the Franchise. g/04 ord/pacific terminals/4/8/04 18 Section 5.3 Procedure For Adjudication of Breaches of The Franchise. Prior to imposing any sanction or penalty, including termination of the Franchise upon the Franchisee,the Director shall give the Franchisee notice of the breach and a reasonable period to correct it. The Director shall establish a reasonable notice of cure period. The notice to cure period shall be a minimum of thirty (30) days in all cases (except in cases of emergency where a shorter time may be prescribed consistent with the nature of the emergency). If the breach is not timely cured, the Director shall cause to be noticed a public hearing before the City Council (or refer the matter to a hearing officer, who shall make a.recommendation to the City Council) on whether there has been a material breach of the Franchise, and the appropriate penalty. Section 5.4 Hearing Procedure. (1) A full evidentiary public hearing shall be held to determine if the Franchisee materially breached the Franchise, and what penalty shall be imposed. (2) The evidentiary hearing shall be conducted upon a minimum of fourteen (14) days written notice duly given to the Franchisee and published notice provided to the public. The Franchisee may present relevant and appropriate evidence, orally and in documented form. Based on the evidence presented at the hearing, a written determination shall be made whether the Franchise should be revoked or the Franchisee should be penalized. The hearing body may make any other determinations which are reasonably related to the Franchise. (3) Should the hearing body find that there has been a material breach of the Franchise, but that revocation is inappropriate, then it may assess and levy monetary penalties against the Franchisee as set forth in this Franchise. (4) The Franchisee shall receive written notice of any action taken following the hearing. (5) Pursuant.to Section 5.3 of the Franchise, the Director shall cause the evidentiary hearing to be conducted by a hearing officer or the City Council. If a hearing officer conducts the hearing, then the City Council shall hold a subsequent public hearing to determine if the hearing officer's recommendation should be affirmed, reversed or modified. (6) The Franchisee shall be entitled to initiate an action in state court to challenge the determination of the City Council pursuant to California Code of Civil Procedure §1094.5 within not more than ninety (90) days of receiving notice of the City Council's action. g/04 ord/pacific term i nals/4/8/04 19 Section 6. This Ordinance shall take effect thirty days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of .2004. , Mayor ATTEST: APPROVED AS TO FORM: t City Clerk ACi REVIEWED AND APPROVED: ITIATE AND APP ED: City Ad nlstrator Director of Public Works INITIAT N APPROVED. IATED AND APPROVED Director Administrative Services Fire Chief �. IQ4ao g/04 ord/pacific terminals/4/8/04 20 a Exhibit A Map depicting pipeline alignment. J04 ord/pacific terminals/4/8/04 21 •( Ila - j !.. i L AY�—i,: i.L,6 �I y I ?v Ar ---I--•i r r!NnI fill rAi Lt�.lfl .AV _ .. I[tv, . I.A P { I:- , '!',i Ir: G tir _ 'r F. 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P�I rs rl A,_ - 7 1 T' 4l'' i Gt'• } .:,Y i Iyr' "\s' / t Zy M_t{ 1 J / r ur'rAac 1rII ' Y��_ .�a'T':'1(�!�l/��i'7!!,L\`L•�'/-. 't,l'`" ._� I JUl1[I..•SILy . :1. . . . . . ..:.. . . . . ..:75. . . . . . .},r). . . . .. . . .. . . .. ... . . . .. . . . . . . . . . . ;SEE- . . . . .. . . . . . . . . . . . . . . . ... . . . . .. . . . MAP —PACIRe-'-1 F=. Li"! ..-SYSTEh1--L-t� n -- _.. -- 0-� -F?=.1,? l 1 i EXHIBIT "A" DESCRIPTION FOR THE CITY OF HUNTINGTON BEACH I Those certain public streets in the City of Huntington Beach, County of Orange, State of California, described as follows: Along Bolsa Chica Street from a point in the North boundary of the City of Huntington Beach near the intersection of Bolsa Chica Street and Rancho Road, South and Southwesterly 7,204.54 feet of 12" pipeline to a point in the West line of Bolsa Chica Street, being the West boundary of the City of Huntington Beach, that is North of the Westminster Channel and Edinger Avenue. Crossing Edinger Avenue and along Bolsa Chica Street from a point in the North line of Edinger Avenue, being the West boundary of the City of Huntington Beach, Southerly 5,261.5 feet of 12"pipeline to a point in Warner Avenue. Along Warner Avenue, South,West and North 4,018.22-feet of 12".pipeline.to a point 30 feet North of the centerline of Warner Avenue and of the South line of the land conveyed. by Southern California Edison Company to Pacific Terminals LLC by a Grant Deed dated July 28, 2003 and recorded August 4, 2003 as Instrument No. 2003000931977 of Official Records in the Office of the County Recorder of Orange County. Along Warner Avenue from a point 30 feet North of the centerline of Warner Avenue and of the South line of the above land conveyed to Pacific Terminals LLC, South and. West 328.8 feet of 12" pipeline to the Northwesterly right of way line of the East Garden Grove Wintersburg Channel. Along Warner Avenue from a point on the Southeasterly right of way line of the East Garden Grove Wintersburg Channel West 3,408.49 feet.of 12" pipeline to a point in Edwards Street. Along Edwards Street, South 5,289.12 feet of 12" pipeline to a point in the North line of Section 34,Township 5 South, Range 11 West, in the Rancho La Bolsa Chica, also being the centerline of Central Park Drive, that is 12 feet East of the centerline of Edwards Street. Along Edwards Street from a point in the centerline of Edwards Street that is 6.05 feet North of the center of Section 34, Township 5 South, Range 11 West, in the Rancho La Bolsa Chica, also being the intersection of the centerlines of Ellis Avenue and Edwards Street, South and Southeasterly 2,640.03 feet of 12" pipeline to a point in Garfield Avenue. b I 1 Along Garfield Avenue, East 7;857.95 feet of 12" pipeline to the West line of Beach Boulevard, 132 feet wide, State Highway 39. Along Garfield Avenue from a point in the East line.of Beach-Boulevard, 132 feet wide; State Highway 39, East and South 2,609.73 feet of 12" pipeline to a point in Newland Street that is 20 feet South of the North line of Section 1, Township 6 South, Range 11 West,in the Rancho Las Bolsas, also being the centerline of Garfield Avenue. Along Newland Street from a point 30 feet North of the South line of Section 12, Township 6 South, Range 11 West, in the Rancho Las Bolsas, also being the centerline of Atlanta Avenue, Southwesterly, South and East 4,131.84 feet of 12" pipeline to a point in the East line of Newland Street that is South of the Huntington Beach Channel. Along Newland Street from a point in the West line of Newland Street that is 35 feet North of the Westerly prolongation of the centerline of Hamilton Avenue, East, South and East 1,462.75 feet of 20" pipeline to a point in the East line of Newland Street that is South of the Huntington Beach Channel. CROSSINGS OF PUBLIC STREETS Street Length of crossing Size of pipe Adams Avenue 40 feet 12" Indianapolis Avenue 40 feet 12" OVERALL LENGTH OF 12" PIPELINE=42,830.22 FEET OVERALL LENGTH OF 20"PIPELINE = 1,462.75 FEET _ a � Exhibit B Form of Acceptance of Franchise Date Ms. Joan Flynn, City Clerk City of Huntington Beach P.O. Box 190 2000 Main Street Huntington Beach, CA 92648 Dear Ms. Flynn: The undersigned, as a duly-authorized officer of Pacific Terminals LLC, hereby accepts the grant of the oil pipeline Franchise awarded by Ordinance No. ; enacted by the Huntington Beach City. Council on. By.accepting this Franchise, Pacific: Terminals hereby relinquishes any interest in the 1958 Franchise granted to Southern California Edison pursuant to City Ordinance No. 687. Dated: PACIFIC TERMINALS LLC, a Delaware limited liability company, By: Irvin Toole,Jr. President and Chief Executive Officer q . a g/04 ord/pacific term i nals/5/26/04 22 Exhibit C ' IRREVOCABLE STANDBY LETTER OF CREDIT [name of issuing bank]Bank L/C No. Place of Issuance: Date of Issuance: Applicant Pacific Terminals LLC Long Beach,CA Advising Bank [name] [address] [city, state,zip, country] Reference No. Beneficiary: City of Huntington Beach .. . Hunt Main Street Huntington Beach,CA 92648. Date and Place of Expiration: ,2024 at Huntington Beach,CA Amount: $20,000 Sir or Madam: At the request of Pacific Terminals LLC, , Long Beach, CA , we hereby establish our Irrevocable Letter of Credit in your favor up to an aggregate amount of Twenty Thousand U.S. DOLLARS ($20,000), to expire at our counters on ,2024. This letter of credit is available for payment against your draft(s)at sight drawn on [name of issuing bank], accompanied by this original Standby Letter of.Credit andthe following documents: A letter from the Director of Public Works of the City of Huntington Beach certifying that Applicant has failed to perform as required under the Franchise Ordinance No. Between the City of Huntington Beach and Pacific Terminals LLC. We agree with you that all draft(s) drawn under and in compliance with this letter of credit will be honored on presentation to us as specified in this letter. -/04 ord/pacific terminals/4/8/04 23 � This credit is subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500. The number and the date of the credit and the name of our bank must be quoted on all drafts required. Please examine this instrument carefully. If you are unable to comply with the terms or conditions, please communicate with your buyer to arrange.for an amendment.. This procedure will facilitate prompt handling when documents are presented. [signature] Authorized signature [signature] Authorized countersignature g/04 ord/pacific terminals/4/8/04 24 . .. _ ... .µ_. DATE(MM/DD/YYYY) A CORD.tw CERTIFI ATE.;;.. ....LIABILITY INSU1vCE 09/01/2005 �,. �_.d PRODUCER Aon Risk Services of Texas,Inc THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY 1330 Post Oak Blvd. AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS Suite 900 CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE Houston TX 77056-3089 USA COVERAGE AFFORDED BY THE POLICIES BELOW. # PHONE- 866 283-7124 FAX- 866 430-1035 INSURERS AFFORDING COVERAGE NAIC INSURED INSURERA: Quanta Specialty Lines Insurance Company 11446 Pacific Terminals LLC 5900 Cherry Avenue INsuRERB. c Long Beach CA 90805 USA INSURERC: INSURER D: o y � 9 INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTA I� ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSU*OR:! • r PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF fCH P(1 193-, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LNSR ADD' POLICY EFFECTIVE POLICY EXPIRATION LTR INgR TYPE OF INSURANCE POLICY NUMBER DATE(MWDD\YY) DATE(MMtDD\YY) LIMITS m ENERAL LIABILITY EACH OCCURRENCE COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED ,�; 3-1- PREMISES CLAIMS MADE OCCUR o (Anv onnee a person) PERSONAL&ADV INJURY Ln d' to GENERAL AGGREGATE 1;r v 00 GEN'L AGGREGATE LIMIT APPLIES PFA PRODUCTS-COMP/OP AGG ❑ POLICY a PRO- ❑ LOC O JECT � AUT0110BILE LIABILITY .. COMBINED SINGLE LIMIT ANY AUTO (Ea accident) � Z ALL OWNED AUTOS BODILY INJURY .R SCHEDULED AUTOS (Per person) y HIRED AUTOS - - - L - BODILY INJURY - V NON OWNED AUTOS - (Per accident) -- PROPERTY DAMAGE (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT H ANY AUTG OTHER THAN EA ACC AUTO ONLY AGG EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE ❑OCCUR ❑ CLAIMS MADE AGGREGATE BDEDUCTIBLE RETENTION WC STATU. DIN- WORKERS COMPENSATION AND ITORY LIMITS EMPLOYERS'LIABILITY - E.L.EACH ACCIDENT ANY PROPRIETOR/PARTNER/EXECUTIVE _ OFFICER/MEMBER EXCLUDED? E.L.DISEASE-EA EMPLOYEE Yves,describe under SPECIAL PROVISIONS E.L.DISEASE-POLICY LIMIT below A 2000439 09/01/05 Each Pollution incident $25,000,000 OTHER Aggregate $25,000,000 Poll Legal Liab DESCRIPTION OF OPERATIONS/LOCATIONSn'EHICLES/EXCLUSIONS ADDED BY ENDORSED7EN?/SPECIAL PROVISIONS ordinance No. 687. ] tilmFit, TE HC)L DER..f... s .x . .r.:. _ ..� fir. -•: >@ANGELliATIflN..... s.. .' .. 3;: <, City of Huntington Beach SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION Attn: Connie Brockway,City Clerk DATE THEREOF,THE ISSUING INSURER WILL TO MAIL P.O. BOX 190 10 DAYS R RITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 2000 Main Street Pcwei ��• Q OBLIG,VRON OR LIABILITY Huntington Beach CA 92648 USA *�, .Den AUTHORIZED REPRESENTATIVE �y� ;s��"� e7 1'Fdn6 jgcoas .S'P.+itaC�d A� I6xdd. l,cIDG. .\CORD�25. 2tIUliO$ . -��' `.... . ...�.. ,.. .:H�, �z��.. ��� . :-�. ,.:�. ' .�,: ,-,-��" ' .,,.,. �.. v: a�-»��f..-�-. A•CflRD=CORRURATION.I. 88 J RECEIVED BY: • CITY CLERK RECEIPT COPY j --- ! I Return DUPLICATE to ._I City Clerk's Office (Name) f after signing/dating (Date) r r t.4 , >� CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION I LIP TO: Shar reidenrich, City Treasurer � -�FROM: j DATE: L SUBJECT: Bond Acceptance I have received the bonds for4161 — S (Company Name) ! -Fa' rye Bond No. Labor and Material Bond No. Monument Bond No. Maintenance Bond No. Re: Tract No. CC No. MSC No. Approved VAgenda Item No. / ( ou cil Approval Dateli City Clerk Vault No. (01 19/13 #27 g1ollowup/bondletterAoc Bond No. 6214959 KNOW ALL MEN BY THESE PRESENTS: That we, PACIFIC TERMINALS LLC, herein 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 bound 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 which 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 become 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 JULY 15, 2005, 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 after such thirty day notice period, except for defaults occurring prior thereto. Surety is licensed in California and maintains a Best's Financial Size Category of IX. 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 surety has a Best's 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 California 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 15TH day of JULY, 2004. PACIFIC TERMINALS LLC. (Principal) By: SAFECO INSURANCE COMPANY OF AMERICA (Surety) By: ' LI A T. SOLOVE, Attorney-in-Fact (WAS Tp FQW R cGRATAYEY tli� POWER SAFECO INSURANCE COMPANY OF AMERICA S A F E C O' GENERAL INSURANCE COMPANY OF AMERICA OF ATTORNEY HOME OFFICE: SAFECO PLAZA SEATTLE,WASHINGTON 98185 No. 5233 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 *****•*•$•'+•'•"VIVIENNE DOUGLAS;KATHLEEN K.FREUND;LISA T:SOLOVE;KATALIN CHURCH;BRIDGET Y.HENRY;Denver Colorado************* its true and lawful attomey(s)-in-fact, 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 9th day of June Q �' 2004 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 attomeys-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 conipany,`.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 (ill) Certifying that said power-of-attomey 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 seat of said corporation this ' day of , CE9,InE COMP pQ��1 f�rQw SJ�� �r0 M�ORATE ' SEAL y SEAL T a� 1953 �� Ists `ham MASM of CHRISTINE CHRISTINE MEAD,SECRETARY S-0974ISAEF 2/01 ®A registered trademark of SAFECO Corporation 06/09/2004 PDF 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 $100 billion cap for the total of all losses to be paid by all insurers for certified acts of terrorism. Losses on some or all of your bonds may be subject to this cap. This notice does not modify any of the existing terms and conditions of this bond, the underlying agreement guaranteed by this bond., any statutes.governing the terms of this bond, or any . generally applicable rules of. At this time, there is no premium charge resulting from this Act. Company Profile • • Pagel of 2 CafMvrnlof Company Profile Ins.T. ranRe SAFECO. INSURANCE. NY OF AMERICA STATE FILINGS C-2 SAFECO PLAZA SEATTLE, WA 98185 800-332-3226 Former Names for Company Old Name: SELECTIVE AUTO & F INS CO AMER Effective Date: 11-02-1953 Agent for Service of Process DAWN JEWORSKI, 120 VANTIS SUITE 130 ALISO VIEJO, CA 92656 Unable to Locate the Agent for Service of Process? Reference Information NAIC #.. 24740 NAIC Group#: 0163 California Company ID #: 1442-3 Date authorized in California: October 07, 1953 License Status: UNLIMITED-NORMAL Company Type: Property & Casualty State of Domicile: WASHINGTON Lines of Insurance Authorized to Transact The company is authorized to transact business`withii.these lines of insurance.For an explanation of any of these terms, please refer to the _log ssary. AIRCRAFT AUTOMOBILE BOILER AND MACHINERY BURGLARY COMMON CARRIER LIABILITY CREDIT FIRE http://cdinswww.insurance.ca.gov/pls/wu_co_prof/idb_co_prof utl.get_coprof?p_EID=3361 9/3/2004 PROOF OF PUBLICATION Hul!rtprcTop14CH lf64$ffl CE ORDBVANCE 0 3654- STATE OF CALIFORNIA) . Aaeaeralrcn: y�AN�ORDINANCErUfTHE:CITY SS. COUNCIL OF--THE CITY-"OF County of Orange ) HUNTIWON BEACH GRANTING AN OIL PIPELINE FRANCHISE;--TO PACIFIC am a Citizen of the United States and a - TERMINALSLLC." SYNOPSIS resident of the County aforesaid; I am F ooti641 pnl'7 195$ by adoption;; of. Ordinance over the age of eighteen years, and not a Np 6687, the`C�ty�Cu ncil granted'to theSoutliern ! party to or interested in the below CahfocriiaiEdpson�,Com- entitled matter. I am a principal clerk of pang (Eiiisonj�a(-19k4 pipeline franchise`(>1958.. and the HUNTINGTON BEACH INDEPENDENT a . 2002,-,EdiFranchise):' diso March; 22 ' n,-• i Pac"ific,Teqminals LLC,:a newspaper of general circulation, printed Cai'ary 'I(Paci ic.-Tit- b company, (Pacific-Ter- jminals) filed;,an appli- and pu lished in the City. of Huntington �at,on before the Cali- fornia 'Public Utilities Beach, County of Orange, State of ICommission-%(CF.UC) California, and that attached Notice is a (requesting the CPUG:to of. approve>thee sale .: certain 'assets,-from iEdlson to,Pacific;Ter- t true and complete copy as was printed minals., The assets and ublished in the Beach subject to+'thee sale Huntin on p gt �include-the:1958,Fran- chile. July-10, dote, and Fountain Valley issues of said ;the CPUG approved-the newspaper to wit the issue(s) of: sale: Pacific Terminals ap- plied to the Director of Public Works for City ,i !consent to the transfer of the 1958 Franchise to 1 Pacific Terminals: ,_By y .accepting this Franchise; Jul 1 , 2004 (Pacific Terminals relin quished_.any interest in 1958 Franchise:'By i•granting this:Franchise, ''City does notz release i Edison,from any:claims the 'city;presently-;has or may .have in ::the future against Edison or I declare, under penalty of perjury, that :any entity; owne&.or the foregoing is true and correct. cdntrolle F THIS O Q C%qPIES It THIS.OR01- �+ g NANCE ARE AVAILABLE IN THE CITY CLERKS i OFFICE: PASSED AND ADOPTED' by the City Council-•of Executed on July 1 2004 the City .of Huntington Beach •atP-aa regular at Costa Mesa California. meeting•held.;'June=21, 200Vby-the 461lowing roll call vote: AYES: Sullivan,:.Co- or per, .Handy,, Green, .j 8oardmain; Cook, Hodchon :;aJ NOES:None ABSENT:None `This ordinance.iso'effec- i time -30 diys :after 1 adoption. i CITY OF? HUNTINGTON BEACH. Signature 2000 MAIN STREET. i HUNTINGTON BEACH, I CA92648 714=536-5227,_:.. JOAN L.FLYNN,. CITY CLERK �Published Huntington' Beach Independent July 1,2004 071-695 �1 Council/Agency Meeting Held: 40 710 Deferred/Continued to: D IL IgApproved ❑ Conditionally Approved ❑ Denied Ci ler Signat —7 Council Meeting Date: June 7, 2004 Department ID Number: PW 04-052 CITY OF HUNTINGTON BEACH REQUEST FOR ACTION o c P SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBER SUBMITTED BY: PENELOPE CULBRETH-GRAFT, City Administrator r'�..v PREPARED BY: ROBERT F. BEARDSL Director of Public Works / JENNIFER MCGRAANAttorney SUBJECT: Hold Public Hearing to Adopt Ordinance for Pacific Terminals Oil Pipeline Franchise Agreement C)(-3 N D. --?::,('0 S Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis, Environmental Status,Attachment(s) Statement of Issue: On May 3, 2004 the City Council adopted a resolution of intention to grant an oil pipeline franchise to Pacific Terminals, LLC. The franchise agreement must be adopted by ordinance, and a public hearing is required. Funding Source: None. Recommended Action: Motion to: 1. Hold public hearing regarding the granting of an oil pipeline franchise agreement to Pacific Terminals, LLC. 2. Approve Ordinance No. �� S� an ordinance of the City Council of the City of Huntington Beach granting an oil pipeline franchise to Pacific Terminals, LLC. Alternative Action(s): Do not approve the ordinance. This action will prohibit the transfer of assets between Southern California Edison and Pacific Terminals, LLC as approved by the California Public Utilities Commission. • REQUEST FOR ACTION • MEETING DATE: June 7, 2004 DEPARTMENT ID NUMBER: PW 04-052 Analysis: On April 7, 1958, by adoption of Ordinance No. 687, the City Council granted to the Southern California Edison Company (Edison) an oil pipeline franchise (1958 Franchise). On March 22, 2002, Edison and Pacific Terminals LLC, a California limited liability company, (Pacific Terminals) filed an application before the California Public Utilities Commission (CPUC) requesting the CPUC to approve the sale of certain assets from Edison to Pacific Terminals. The assets subject to the sale include the 1958 Franchise. On July 10, 2003, the CPUC approved the sale. Pacific Terminals has applied to the Director of Public Works for City consent to the transfer of the 1958 Franchise to Pacific Terminals. Upon receipt of the application, state law authorizes the City to pass a resolution declaring its intention to grant the franchise applied for, setting forth a notice of the day, hour and place when and where all persons having any objections to the granting thereof may appear and be heard. On May 3, 2004, Resolution 2004-24 was adopted by the City Council. The City Clerk has published the required public hearing notice for June 7, 2004, stating intention to grant the franchise agreement. The ordinance was attached as Exhibit A to Resolution No. 2004-24 and is included here as Attachment 1. Public Works Commission Action: Not required. Environmental Status: This project is categorically exempt pursuant to Section 15061 (B) (3) of CEQA. Attachmentls): City Clerk's P. . - Number No. 1 Ordinance No. 3co G 2 PowerPoint Presentation RCA Author: L Daily :jg G:\R C A\2004\04-052 June 7 Daily(Public Hearing Pacific Terminals Franchise Agreement).doc -2- 5/19/2004 10:06 AM ATTACHMENT # 1 i ORDINANCE NO. 3654 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH GRANTING AN OIL PIPELINE FRANCHISE TO PACIFIC TERMINALS LLC WHEREAS, on April 7, 1958 by adoption of Ordinance No. 687, the City Council of the City of Huntington Beach granted to the Southern California Edison Company ("Edison") a pipeline franchise (the "1958 Franchise"); and On March 22, 2002, Edison and Pacific Terminals LLC, a California limited liability company ("Pacific Terminals," "Pacific" or "Franchisee") filed an Application ("A. 02-03-035") before the California Public Utilities Commission("CPUC")requesting the CPUC to approve the sale of certain assets from Edison to Pacific; and The assets subject to the sale include the 1958 Franchise; and On July 10, 2003, the CPUC approved with conditions A.02-03-035; and Pacific Terminals has applied to the Director of Public Works of the City of Huntington Beach for City consent to the transfer of the 1958 Franchise to Pacific; and The City Council hereby consents to the transfer by way of this new Franchise to Pacific Terminals. By accepting this Franchise, Pacific Terminals hereby relinquishes any interest in the 1958 Franchise. By granting this Franchise, City does not release Edison from any claims the City presently has or may have in the future against Edison or any entity owned or controlled by Edison. NOW, THEREFORE, the City Council of the City of Huntington Beach does ordain as follows: Part One General Provisions Section 1.0 Grant of Franchise. Pursuant to Chapter 3.44 of the Municipal Code of the City of Huntington Beach, the City hereby grants a non-exclusive oil pipeline franchise (the "Franchise") to Pacific Terminals LLC to lay, operate, maintain, use, renew, repair, replace, move, change the size and number of and remove or abandon in place a system of pipelines, together with such valves, fittings, manholes, vaults, pumps and other appliances, appurtenances, attachments or equipment as the Franchisee may deem necessary or convenient for the purpose of conducting, transporting, conveying and carrying oil and petroleum, extending generally along the following route: (1) southerly along Bolsa Chica Street from and including the intersection of Bolsa Chica Street and Westminster Avenue to Warner Avenue; (2) easterly along Warner Avenue to and including the intersection of Warner Avenue and Edwards Street; (3) g/04 ord/pacific terminals/4/S/04 1 southerly along Edwards Street to and including the intersection of Edwards Street and Garfield Avenue; (4) easterly along Garfield Avenue to and including the intersection of Garfield Avenue and Newland Street; (5) southerly along Newland Street from the intersection of Newland Street and Garfield Avenue to Pacific Coast Highway, all as more particularly depicted as Exhibit A attached hereto. In the event that the provisions of Chapter 3.44 and this Franchise conflict, the provisions of this Franchise shall apply. This Franchise only authorizes the transportation of oil and petroleum; the Franchise does not authorize the transportation of any other hazardous or non-hazardous substance, including but not limited to natural gas and water. As of the Effective Date, the diameter of the existing pipeline is 12" inches with a length of 42,830.22 and 20" with a length of 1,463.75 feet . This size shall be used for purposes of calculating the Franchise Fee pursuant to Section 3.1(a). Franchisee shall give the City ninety (90) days notice of any change in the size of the pipeline. Section 1.1 Definitions. For the purpose of this Franchise, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. "Shall" is mandatory and"may"is permissive (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 the Franchisee or any of Franchisee's Facilities or activities. Applicable Law includes all Municipal Code requirements for pipeline franchises, encroachment permits, excavation permits, and any other permit or agreement as required by the Code for any construction performed within the public right-of-way or within the public utility easements or public service easements located on private property, including but not limited to Chapters 3.44 and 12.13 of the Municipal Code. (b) "City" shall mean the City of Huntington Beach, a municipal corporation. (c) "City Clerk" shall mean the City Clerk of the City:of Huntington Beach: . (d) "City Council" shall mean City Council of the City of Huntington Beach. (e) "City Property" shall mean the property or facilities owned by the City of Huntington Beach or property owned by any of the City's affiliated agencies. (f) "Claims" shall mean all claims, losses, liabilities, causes of action, demands, damages, suits, judgments, debts, costs, contribution or indemnity, expenses (including but not limited to attorney's fees and costs) fines, penalties,judgments, orders, injunctions and liens of every kind and nature, including, but not limited to, claims relating to any Environmental g/04 ord/pacific terminals/4/8/04 2 Condition or any Release of any Contaminant, claims for personal or bodily injury, wrongful death, injury to real or personal property, natural resources damages, and including claims based on active or passive negligence, gross negligence, contractual, statutory or strict liability, or otherwise, and any claims seeking judicial or administrative relief, or relating to any administrative proceedings by any governmental agency, whether or not any such claim is ultimately defeated: (h) "Contaminant" shall mean any material, substance or constituent originating from Franchisee's facilities or activities, whether solid, liquid, semisolid, or gaseous in nature, including any hazardous substance or waste, hazardous material, chemical compound, petroleum (or fraction thereof), or any hydrocarbon substance, pollutant or contaminant, as those terms are defined by any federal, state or local law, rule, regulation or order. (i) "Day" shall mean calendar day unless otherwise provided. (j) "Department" shall mean the Public Works Department of the City of Huntington Beach. (k) "Director" shall mean the Director of the Department of Public Works of the City of Huntington Beach, or his written designee. (1). "Effective Date" is July 31, 2003, the date that Pacific Terminals closed escrow on the acquisition of the Facilities from Edison (m) "Environmental Condition" shall mean the presence or evidence of the likely presence of any Contaminant originating from Franchisee's Facility (s) or from Franchisee's activities, in surface water, ground water drinking water supply, soil, land surface, subsurface strata or the air. (n) "Facility" or"Facilities" shall mean a system of pipelines, together with such valves, fittings, manholes, vaults, pumps and other appliances, appurtenances, attachments or equipment as the Franchisee may deem necessary or convenient for the purpose of conducting, transporting, conveying and carrying oil and petroleum under and across the public streets, ways, alleys and places within the City of Huntington Beach. (o) "Fire Chief' shall mean the Chief of the Huntington Beach Fire Department:. (p) "Franchise" shall mean this Ordinance granting a Franchise to Pacific Terminals LLC, unless some other franchise is specified. (q) "Franchisee" shall mean Pacific Terminals LLC and its successors and assigns. (r) "Franchise Payment Period" shall mean the time period between the Effective Date of this Franchise and December 31 of the same year, and each calendar year thereafter, during the life of the Franchise. g/04 ord/pacific term i nals/4/8/04 3 (s) "Franchise Report Period" in all cases shall mean the time period between the Effective Date of this Franchise through and including December 31 of that year, and each calendar year thereafter, during the life of the Franchise. (t) "Municipal Code" shall mean the Municipal Code of the City of Huntington Beach. (u) "Person" shall mean any individual,person, firm,partnership or corporation: (v) "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)3), 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)1), or any discharge, active or passive migration, deposit, storage, burial, emplacement, seepage, filtration or disposal of a Contaminant into the environment originating from any Facility or from Franchisee's activities. (w) "Remediation Costs" shall mean all costs and expenses, including the City's current rate of overhead, indurred by the City in performing and monitoring any Remedial Work. (x) "Remedial Work" means all "Remedial Action", as that term is defined in Section 101(24) of CERCLA [42 U.S.C. §9601], and all other actions as are necessary or required to remediate a Release of any Contaminant or an Environmental Condition to a condition which would allow unimpaired and unrestricted use and development and would comply with Applicable Law, and including but not limited to all:actions necessary to Respond to; Remove; or . Remedy; as those terms are defined in Sections.1.01(23); ,101(24) and 101(25) of CERCLA.[42 U.S.C. §9601], a Release of a Contaminant or Environmental Condition. (y) "Street" shall mean any street, road, highway, alley, lane or court or other public easement, which now exists or may hereafter exist in the City of Huntington Beach and in which the City has the authority to grant a Franchise. Section 1.2 Facilities, Encroachment Permits. Franchisee may not perform any work on the Facilities without obtaining an encroachment permit from the Director pursuant to Chapter 12.13 of the Municipal Code. Franchisee further acknowledges that Section 3.44.380 of the Municipal Code does not authorize installation of above-ground appurtenances pursuant to this Franchise. Notwithstanding Section 3.44.380, Franchisee may apply for an encroachment permit to install above-ground,appurtenances; which the. Director may grant.in.his.reasonable discretion. Section 1.3 Term. The Franchise Term shall begin on the Effective Date and terminate fifteen(15) years after the Effective Date, on July 31, 2018. The Director is hereby authorized to enter into a memorandum of understanding with Pacific Terminals memorializing the Effective Date and termination date of this Franchise, which memorandum shall be filed with the City Clerk. No later than 120 days before expiration of the term of this Franchise, Franchisee may apply in writing to the Director for a five-year extension of the Franchise. If the Director finds that, throughout the term of this Franchise, Pacific has been in substantial and material compliance with all the terms of this Franchise, he shall extend the Franchise without further g/04 ord/pacific terminals/4/8/04 4 City Council approval. The Director's decision to extend or not extend the Franchise may be appealed to the City Council by any person within fourteen (14) days of the Director's decision. A second five-year extension of this Franchise may be granted pursuant to the above procedures. Section 1.4 Acceptance of Franchise. The Franchisee shall,.within thirty.(30)days after the.passage of this.Ordinance;'file with the City Clerk of the City of Huntington Beach written acceptance of the terms and conditions of this Franchise in the form set forth in Exhibit B_ attached hereto. The Franchisee shall accept the Franchise within the designated time. The Franchise shall be null and void if the written acceptance is not filed within the prescribed time. Section 1.5 Nonexclusive Franchise. The granting of this Franchise shall not prevent the City from granting any identical or similar franchise to any Person other than the Franchisee. Section 1.6 Change in Status. If the Franchisee no longer qualifies before the Public Utilities Commission of the State of California as a common carrier, the Franchisee shall then have no right to continue to operate hereunder after the date of such disqualification, except with the consent of the Council granted upon such additional terms and conditions as the Council may deem proper. Such additional terms and conditions shall be expressed by Ordinance. Section 1.7 Forfeiture. The Franchise is granted and shall be held and enjoyed upon each and every condition contained in this Franchise and shall be strictly construed against the Franchisee. The Franchise shall grant only those rights that are stated in plain and unambiguous terms::Failure or refusal to comply with any.of the conditions of the Franchise, including the failure to comply with any Applicable .Law, shall constitute grounds.;for the suspensio.n.or forfeiture of the Franchise in accordance with the terms and procedures specified in Part Five. Section 1.8 Eminent Domain. The Franchise granted hereunder shall not in any way to any extent impair or affect the right of the City or any successor to acquire the property of the Franchisee 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 abridge, either for a term or in perpetuity, the City's rights of eminent domain before any court or other public authority in any proceeding of any character. Section 1.9 Assignment. The Franchisee shall not directly or indirectly sell, transfer, assign or lease the Franchise or any part thereof, or allow another Person or entity to operate any .pipeline or related.Facility subject to`the Franchise, 'except With:the consent of the Council' Which consent shall`not be unreasonably withheld. Such sale, transfer, assignient lease or agreement shall be made only by filing with the Council a copy of the duly executed instrument of such sale, transfer, assignment lease or agreement and a written request for the consent of the Council to such sale, transfer, assignment, lease or agreement. If such duly executed instrument and such written request is not filed with the Council before the expiration of sixty (60) days after the effective date of such sale, transfer, assignment or lease, then, upon the expiration of said sixty (60) days, the Franchise shall be subject to forfeiture and the Council may, without notice, by Ordinance, repeal the Franchise. As a condition to the granting of consent to such sale, transfer, assignment, lease or agreement, the Council may impose such reasonable additional terms and conditions upon the Franchise and upon the Franchisee or assignee, which the Council g/04 ord/pacific terminals/4/8/04 5 may deem to be in the public interest. Such additional terms and conditions shall be expressed by Ordinance. The Franchisee shall have no right to sell, transfer, assign or lease the Franchise, or any part thereof, except in the manner aforesaid. This Section applies to any assignment, whether by operation of law, by a voluntary act of the Franchisee or otherwise, and includes a transfer of more than fifty percent (50%) of the voting stock of any corporate grantee .or the change in. identity.of any general-partner of a Franchisee which is a partnership, whether to a third party or to any subsidiary,parent, or affiliated agency of Franchisee: Section 1.10 Prior Franchises. All Facilities erected, constructed, laid, operated or maintained by the Franchisee in the streets, whether installed by the Franchisee or not, prior to the Effective Date of this Franchise shall become subject to all the terms and conditions of this Franchise upon such Effective Date. Section 1.11 City Officers. Any right or power conferred, or duty imposed upon any officer, employee or Department of the City shall be subject to transfer to any other officer, employee, or Department of the City. Section 1.12 Severability. If any part of this Franchise or the application thereof to any Person or circumstances is for any reason held invalid by a court of competent jurisdiction, the validity of the remainder of the Franchise or the application of such provision to other Persons or circumstances shall'not be affected. Section 1.13 Release of Products or Contaminants. Notwithstanding'any other provrsion`. herein, in the event of Release of a:_Contaminant by 'Franchisee-:or from "any Facility of Franchisee or the discovery of an Environmental Condition caused by Franchisee or any Facility of Franchisee, Franchisee shall immediately conduct such Remedial Work and pay all Remediation Costs, at its sole expense, as is necessary to fully mitigate and remediate the same in accordance with all Applicable Law, and as directed by the City except to the extent that City direction conflicts with Applicable Law. In the event that Franchisee fails to perform necessary remediation work, City may impose liquidated damages and/or Franchise termination pursuant to Part 5 of this Franchise, or take any other legal action the City deems appropriate in the circumstances. Section 1.14 Compliance With Applicable Law. Until such time as (i) the Franchise terminates; and (ii) the Franchisee removes all of its Facilities; and (iii) completes any necessary Remedial Work, Franchisee Will comply with all Applicable'Law. Section 1.15 Notices and Records. Upon request, Franchisee will transmit to City copies of all notices, orders or statements, other than those relating to taxes, sent to or received from any governmental agency concerning any Facility or any operations conducted by Franchisee in the City pursuant to the Franchise. Upon request, Franchisee shall send to the City copies of requested documents concerning any Facility or any operations conducted by Franchisee pursuant to the Franchise sent to any other governmental agency concurrently with sending them to the other agency and shall send to City documents received by Franchisee within five days of receipt by Franchisee unless providing documents to City would conflict with Applicable Law. g/04 ord/pacific terminals/4/8/04 6 • 0 Section 1.16 Access to Records and Property. Upon request, the Franchisee shall permit the City or its duly authorized representative to examine all of Franchisee's Facilities, together with any appurtenant property of the Franchisee, and to examine and transcribe any and all books, accounts, papers, maps, and other records kept or maintained by the.Franchisee or under. its control which concern the operatioris, affairs, transactions or property of the Franchisee with respect thereto. Said records shall be made available to the City at a location in either the County of Orange or the County of Los Angeles. Section 1.17 Removal or Abandonment of Facilities. Subject to Applicable Law, at the time of the expiration (unless extended), revocation, or termination of this Franchise, or the permanent discontinuance of the use of its Facilities, or any portion thereof, the Franchisee shall, within thirty (30) days thereafter make written application to the Director and to the City Fire Chief for authority to either abandon all or a portion of such Facilities in place or to remove all or a portion of such Facilities. Thereupon the Director and the Fire Chief jointly and unanimously shall determine whether any abandonment or removal which is thereby proposed may be effected without detriment to the public interest or under what conditions such proposal of abandonment or removal may be safely affected and shall then notify the Franchisee . according to such requirements as shall be specified in the Director's order. In order to make their determination, the Director and the Fire Chief may require the Franchisee to pressure test the Facilities, to complete a sample testing program requiring borings and physical examination of the integrity of the Facilities, and such other steps as they deem reasonable. The Franchisee shall pay''to the City the cost of all tests required to determine whether the Facilities shall be abandoned or removed. Within ninety (90) days after receipt of the Director's and Chief s order, Franchisee shall, pursuant to such order, remediate the soil surrounding the Facilities pursuant to the standards of Applicable Law, and either (a) remove all or a portion of such Facilities; or (b) abandon in place all or a portion of such Facilities in accordance with all conditions prescribed. If any Facilities to be abandoned in place, subject to prescribed conditions, shall not be abandoned in accordance with all of such conditions, then the Director may make additional appropriate orders, including if deemed appropriate, an order that the Franchisee shall remove all such Facilities. If the Director and Fire Chief approve abandonment in place of all or part of the Facilities, the Franchisee shall pay to the City a fee in the amount the Director reasonably determines to be equal to one-half of the cost of removal of the Facilities Section 1.18 Appeal. Any decision made by the Director pursuant to authority delegated in this Franchise may be appealed by any person to the City Council. For purposes of seeking judicial review, the decision of the City Council shall be final when notice of the decision is mailed by first class mail to the Franchisee. p/04 ord/pacific terminals/4/8/04 7 Part Two Liability. Indemnification and Insurance Section 2.1 Liability. The Franchisee shall be liable to the City for damage to City property, including but not limited.to.any street, or any other cost incurred by the City caused by Franchisee, any'of Franchisee's Facilities or by any Person acting on Franchisee's behalf. The Franchisee shall be held to a standard of strict liability to City for.any activity conducted pursuant to or in connection with the Franchise. The Franchisee's strict liability shall extend to any consequential damages incurred by the City, and to any costs, including Remediation Costs, incurred by the City for control or abatement of any Environmental Condition, Release of Contaminants, Remedial Work or resulting from any activity conducted by or on behalf of Franchisee pursuant to the Franchise. Section 2.2 Damage to o City Property. Any damage done to City property by Franchisee in exercising any right, power, or privilege under this Franchise, or in performing any duty under or pursuant to the provisions of this Franchise, shall be promptly repaired by Franchisee at its sole cost and expense to as good a condition as it was before such damage was incurred, to the satisfaction of the Director. If the Franchisee, within ten(10) days after receipt of written notice from the City, instructing it to repair such damage, shall fail to commence to comply with such instructions, or, thereafter, shall fail diligently to prosecute such work to completion, then the City immediately may do work necessary to carry out said instructions at the cost and expense of the Franchisee, which cost and expense, by the acceptance of the Franchise, the Franchisee agrees to pay upon demand. If such damage constitutes an immediate danger to the public health or safetyrequiring the immediate repair thereof,the City without notice may repair such damage and the Franchisee agrees to pay all costs incurred. Section 2.3 Indemnification. The Franchisee shall indemnify to the fullest extent permitted by law, and defend and hold the City, and its Council members, employees, remediation consultants, environmental consultants, agents and attorneys free and harmless from and against all Claims arising from or in any way related to the Franchise or activities conducted by or on behalf of Franchisee. The City and the other parties indemnified herein shall have the right to approve the attorneys selected by Franchisee to represent them. In the event Franchisee does not provide attorneys acceptable to the indemnified parties, the indemnified parties may select attorneys of their choice, so long as the attorney's rates do not exceed the lesser of the rates the indemnified parties or the Franchisee pays for other legal services. The indemnity provided herein shall.survive the expiration or other termination of the Franchise. Section 2.4 Insurance. Franchisee shall for the duration of this Franchise, at Franchisee's sole cost and expense, keep or cause to be kept in full force and effect, for the mutual benefit of City, its officers, elected or appointed officials, employees, agents and volunteers, and Franchisee,the following insurance coverages: (a) A comprehensive form of commercial general liability insurance, including but not limited to coverage for liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and protecting against claims, liability and defense costs g/04 ord/pacific terminals/4/8/04 8 arising from Franchisee's exercise of the rights granted by this Franchise, including the use, construction, and/or maintenance of the Facilities authorized by this Franchise, of at least three million dollars ($3,000,000)per occurrence. (b) : .Pollution legal liability coverage applicable to bodily...injury, property damage, cleanup costs, and. defense, including costs and expenses incurred in. the investigation, defense, or settlement of claims, all in 'connection with any pollution loss arising from the Facilities. Coverage shall be maintained in an amount of at least two million dollars ($2,000,000) per loss, with an annual aggregate of at least ten million dollars ($10,000,000). (c) Business auto insurance covering Franchisee's owned, non-owned and hired vehicles, with limits of not less than three million dollars ($3,000,000) each accident. (d) Workers' compensation and employer's liability coverage as required by statute. All insurance required by provisions of this Franchise shall be carried only in responsible insurance companies licensed to do business in the state of California and having a Best rating of no less than A:VII. All such policies shall contain endorsements to the effect that (a) the insurer waives the right of subrogation against the City, including its elected officials, officers, employees and agents; (b) the policies are primary and noncontributing with any insurance that may be :carried by.the: City; :(c) they cannot:be.cancelled or.materially changed except after-. `providing no- less than thirty days prior written notice to.-the City; and (d) the.City; its.elected officials, officers and employees are named additional insureds under the commercial general liability and pollution legal liability policies. Franchisee shall furnish City with copies of all such policies promptly upon receipt of them, or certificates with endorsements evidencing the insurance, prior to exercising any of the rights granted by this Franchise. Thereafter, Franchisee shall provide evidence of renewal or replacement of a policy already in existence and required by this Franchise,no less than twenty days' prior to expiration or other termination of such policy. The liability policies required by this Section may provide for deductibles or retentions of up to Ten Thousand Dollars ($10,000.00)per claim. Notwithstanding the foregoing, if the Franchisee submits appropriate assurances, and with the joint approval of the City's Director of Public Works, Risk Manager and City Attorney,. which maybe denied in their reasonable discretion,the deductible may be increased up to Two Million Dollars ($2,000,000.00). The Franchisee shall file with the City Clerk endorsement and certificates of insurance for each of the required policies executed by the company issuing the policy, certifying that the policy is in force and providing the following information with respect to said policy: (a) The policy number; (b) The date upon which the policy will become effective and the date upon which it will expire; p/04 ord/pacific terminals/4/8/04 9 i • (c) The names of the named insured and any additional insured; (d) Subject of the insurance; (e) The type of coverage provided by the insurance; (f) Amount of limit of coverage provided by the insurance; (g) A description of all endorsements that form a.part of the.policy. The Franchisee shall not commence operations until Franchisee has complied with this Section. The Franchisee shall cease operations if the Franchisee fails to maintain said policies in full force and effect. In the event any policy is cancelled or reduced in amount or scope or coverage, the Franchisee shall provide the City, not later than fifteen (15) days prior to the effective date of the cancellation or reduction in coverage, a certificate of insurance showing that the Franchisee will have replacement insurance in full force and effect after the effective date of the cancellation or reduction in coverage and shall provide a certified copy of such replacement insurance meeting the requirements of this section. Not more frequently than once every two (2) years, if, in the sole opinion of City, the amount and/or scope of.the above insurance is not adequate, Franchisee shall adjust the insurance coverage required under this Section as reasonably required by City. Section 2.5 Faithful Performance: Letter of Credit. (1) Letter of Credit. The Franchise shall establish a letter of credit in the sum of Twenty Thousand Dollars ($20,000.00) within.forty-five (45) clays after the Effective :Date `of this Franchise. The letter of credit shall be ina'form consistent with Exhibit C;attached hereto. The City may draw on the letter of credit any amounts assessed as liquidated damages pursuant to Part Five. The Franchisee shall restore to the letter of credit any amount the City withdraws as liquidated damages, within thirty(30) days after the City withdraws the money. The Franchisee may provide cash or a cash equivalent in substitution of the letter of credit including without limitation a certificate of deposit or savings account, the rights of which have been signed over to the City. Any interest accrued on such cash or cash equivalent security shall be paid over annually to the Franchisee. Franchisee's recourse, in the event Franchisee believes any taking of funds from the Letter of Credit is improper, shall be through legal action, after the Letter of Credit has been drawn upon. . (2) Surety Bond. As an alternative to establishing a Letter of Credit securing the payment of liquidated damages as set forth in Part Five, the Franchisee may obtain a surety bond acceptable to the City, to guarantee the sum of Fifty Thousand Dollars ($50,000.00). The Surety Bond shall be in a form acceptable to the City and shall be submitted within forty-five (45) days after the Effective Date of this Franchise Agreement. The form of the Surety Bond shall contain, at a minimum: (a) That the surety is licensed in California and maintains a Best's Financial Size Category of IX. g/04 ord/pacific terminals/4/8/04 10 • • (b) That the surety holds a Certificate of Authority from the United States Department of the Treasury as an acceptable reinsuring company pursuant to Department Circular 570 as published in the Federal Register. (c) The surety shall have a Best's insurance rating of not less.than A Is (d) The principal amount of the obligation shall be Fifty Thousand Dollars ($50,000.00). (e) The obligation by the surety to pay the principal amount to the City is unconditional pursuant to Civil Code Section 2806. (f) The liability of the surety for the payment of the principal amount accrues immediately upon the default of the Franchisee, and without demand or notice pursuant to Civil Code Section 2807. (g) The surety shall waive any defense based on or arising out of any defense of the Franchisee other than payment in full of the principal amount including, without limitation, a defense based on or arising out of the disability of the Franchisee, 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 :sureq shall _waive any right to require the City to'proceed against the Franchisee or pursue.any other remedy in the City's power.Further, said 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. (h) The surety shall also undertake to pay reasonable attorneys' fees and other costs incurred by the City in enforcing the Surety Bond. (i) Franchisee shall require said surety to submit to the City documentation evidencing the above requirements and any documentation required of the Franchisee by the surety for the purpose of ascertaining Franchisee's financial condition. Part Three Compensation Section 3.1 Rates. As consideration for the Franchise granted, the Franchisee shall pay to the City in lawful money of the United States the following: (a) Annual Franchise Fee. Pursuant to City Code § 3.44.260, the Franchisee, as consideration for the Franchise, shall, within sixty (60) days after the end of each calendar year during the life of the Franchise, including the year of granting the g/04 ord/pacific terminals/4/8.04 11 s • Franchise, pay to the City a fee based on the formula set forth in Public Utilities (P.U.) Code § 6231.5. For pipelines with an internal diameter not listed in P.U. Code § 6231.5, the fees shall be in the same proportion to the fees of a 12-inch- -diameter pipe as the diameter of the unlisted pipe is to 12 inches. As of the.Effective Date of that Franchise, the Franchise Fee shall.be $ 0.26 per linear foot of 12"pipeline and$ 0.44 per linear foot of 20"pipeline, multiplied by the applicable Consumer Price Index. Consequently, the Franchise Fee for the prorated period from the Effective Date through December 31, 2003 shall be $7,095.88. This amount shall be paid within sixty (60) days after the end of calendar year 2003 or passage of this Ordinance, whichever occurs later. The Franchise Fee for the prorated period from January 1, 2004 through December 31, 2004 shall be $17,571.70. (b) Base Construction Fee. In addition to the Annual Franchise Fee, any fees imposed by Applicable Law and any fees or conditions on any encroachment permit issued for street work, pursuant to Municipal Code Section 3.44.280, the Franchisee shall pay at the time of installation, relocation, or replacement of any pipeline or other Facility covered by the Franchise, a Base Construction Fee of One Dollar ($1.00) for each foot of pipeline or fractional part thereof installed, replaced or relocated in, on or under streets or other rights-of-way within the City. The Base Construction Fee shall be escalated in accordance with the provisions of Section 3,.44.290 of.the.Code, with the base year being January 1,.2003 through December 31, 2003: This'fee shall riot be applicable to work performed pursuant to Section 4.13. (c) Publication and Administrative Issuance Costs. The Franchisee shall pay to the City within thirty (30) days after receiving a statement therefor, all reasonable administrative and other costs, including attorneys fees, incurred by the City in processing the application for a Franchise, including but not limited to the preparation of any reports, statements or studies pursuant to the California Environmental Quality Act("CEQA") (Public Resources Code §§ 21000, et seq.,) and any similar Federal statute, or any successor statute, and for all reasonable advertising and publishing costs, including the cost of publishing the Franchise, if necessary,.incurred in connection with the granting of the Franchise. In the event that environmental studies or reports are not required, such costs shall.not exceed ten thousand dollars($10000). . Section 3.2 Late Franchise Fee Payments. (a) Fees and rates due from the Franchisee 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 return must be received by the Treasurer during normal business hours on the first regular working day following the weekend or legal holiday. A direct deposit, including electronic fund transfers and other similar methods of electronically exchanging monies between financial g/04 ord/pacific terminals/4/8/04 12 accounts, made by the Franchisee in satisfaction of its obligations under this Section shall be considered timely if the transfer is initiated on or before the due date, and the transfer settles into the City's account on the following business day. (b) If the Franchisee fails to remit any fee..or rate on or before the._due date, the -.Franchisee shall pay a penalty for:such delinquencies at the rate.of ten percent (10%)of the total that is delinquent in the remittance.' - (c) If the fee or rate is not received by the Treasurer within thirty (30) days following the date on which it first became delinquent, the Franchisee shall pay a second delinquency penalty of ten percent (10%) of the amount of fee or rate in addition to the amount of the fee or rate and the penalty first imposed. (d) The City Treasurer shall have the power to impose additional penalties upon the Franchisee for fraud or gross negligence in reporting or remitting at the rate of twenty-five percent(25%)of the amount of the fee or rate required to be remitted. (e) In addition to any other penalties imposed by this Section, the Franchisee shall pay interest at the rate of one and one-half percent (1-1/2%) per month, or any fraction thereof, on the amount of the fee or rate, exclusive of penalties, from the date on which the fee or rate first became delinquent, until paid. (f) For collection.purposes only; every penalty imposed 1 and such "interest that is. accrued under the.provisions of this section shall become a part of the fee or rate herein required to be paid. Section 3.3 Proration of Payments. In the event of abandonment of Facilities in compliance with Section 1.19 or in the event of removal of such Facilities by the Franchisee, the annual franchise fee required under Section 3.1 shall be prorated for the calendar year in which such removal or abandonment occurs as of the end of the calendar month in which removed or abandoned. Section 3.4 Records. The Franchisee 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. Part Four Construction Section 4.1 Construction Requirements. (1) Pipelines and all other Facilities shall be constructed and maintained in a good workmanlike manner and in conformity with Applicable Law and in accordance with the latest edition of Standard Specifications for Public Works Construction or other construction standards per the approved encroachment or excavation permit(HBMC 12.10). g/04 ord/pacific terminals/4/8/04 13 (2) All construction shall be accomplished between the hours specified by the City in the approved encroachment or excavation permit or Applicable Law. (3) Prior to commencing any Street work, Franchisee shall submit to 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 m the State of California. No construction related activities maybe conducted in the Street without a City- approved encroachment or excavation permit, engineering plans. and a traffic. control plan. (4) Franchisee 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 Franchisee, Franchisee shall respond in a timer- manner. Unless the Director grants an extension, which the Director shall not unreasonably deny, Franchisee shall correct within twenty-four hours any adverse impact to the Streets caused by Franchisee's Facilities. (5) Every working day during construction, Franchisee shall notify the designated City staff member of the location of the next day's construction actiN ities. The number of concurrent construction locations may be limited by the City. Section-4.2 Automated Ec uit ment. Within 5 years..of the acceptance.of the grant.of Franchise, Franchisee. shall install such controls,_valves and other appurtenances sufficient to remotely monitor and control the operations of the pipeline and storage interface within the City of Huntington Beach. Such controls and equipment shall include the capability of remotely detecting leaks, spills or releases of petroleum products from Franchisee's facilities within the City of Huntington Beach. Section 4.3 New Installation or Replacement. New installation or replacement of pipelines and all other Facilities necessary for the installation, operation, maintenance, and safety of pipelines and conduits shall be laid and maintained pursuant to Applicable Law. All such installations or replacements shall be reviewed by the Director as to the most desirable location in the streets of the City and his or her decision shall be final and binding on the Franchisee subject to appeal to the Council pursuant to Section 1.18. Section 4.4 Permits. Where the provisions :of any Applicable. Law, which shall be *in force at the time, require the issuance of an excavation, encroachment or other type of permit,the Franchisee shall not commence any excavation or encroachment work under the Franchise until it shall have obtained such permits, except in cases of emergency affecting public health, safety or welfare or the preservation of life or property, in which case the Franchisee shall apply for such permits not later than the next business day. The Franchisee's application for a permit under Applicable Law shall show the length and proposed location of the pipeline and/or other Facility intended to be installed, and such other facts as the Department may require. The Franchisee shall pay any and all permit inspection fees to the Department. g/04 ord/pacific terminals/4/g/04 14 • • Section 4.5 Work on and Restoration of Streets. The work of constructing, laying, replacing, maintaining, repairing or removing all pipelines and other Facilities authorized under the provisions of this Franchise in, over, under, along or across any Street shall be conducted pursuant to HBMC §§12.13.120 — 12.13.150 to minimize hindrance to the use of the Street for purposes of travel,.and as soon as such work is completed, all portions.of the.Street which have been:excavated or otherwise damaged thereby. shall.promptly and in a workerlike manner be repaired, replaced or restored and placed in as good condition as the same was before the commencement of such work. When repairing Street work, Franchisee shall grind and overlay the full width of any lane or partial lane which has been excavated or otherwise damaged. In the event that the Franchisee shall fail or neglect to make such Street repair, replacement, or restoration work, then ten (10) days after notice therefor has been given Franchisee by the Director,the City may repair, replace or restore said highway at the expense of Franchisee. The Franchisee agrees to pay to the City the cost of performing such work. The amount so chargeable shall be the direct cost of such work plus the current rate of overhead being charged by the City for reimbursable work. Section 4.6 Failure to Timely Comply. Whenever the Franchisee fails to complete any work required by the terms and conditions of the Franchise, and the permits issued thereunder, within the time limits required thereby, the City may complete or cause to be completed said work in compliance with Applicable Law at the expense of the Franchisee. The Franchisee agrees to pay to the City the cost of performing such work. The amount so chargeable to Franchisee.shall be.the reasonable direct cost of said work plus the current rate.of overhead:being charged by the City for reimbursable work. Section 4:7 Completion Statement. Upon the completion of the construction of any pipelines or other Facilities constructed pursuant to this Franchise, the Franchisee shall submit a statement to the Director, identifying the permit or permits issued by the Department, the total length of pipeline, pipeline material, diameter of pipeline, the construction of which was authorized under such permit or permits, the total length of pipeline or other Facility actually laid, and as-built drawings. Section 4.8 Shoring. The Franchisee will provide at its sole cost such shoring or other support as shall be reasonably required to support, maintain, and protect Franchisee's facility in connection with any storm drain or sewer constructed by the County of Orange or other duly- constituted authority or in connection-with any.facility constructed by.City, or by any successor agency of any of.these"agencies. Section 4.9 Maps. Within ninety (90) days following the date in which any Facilities have been laid, removed or abandoned under the Franchise, the Franchisee shall file a map or maps in City-approved digital format with the Department showing the location, depth, and size of the Facilities so laid,removed or abandoned. Section 4.10 Facilities. The Franchisee shall have the right to construct, maintain and repair such traps, manholes, conduits, valves, appliances, attachments and other Facilities as may be necessary or convenient for the proper maintenance and operation of the pipelines under said 0 J04 ord/pacific terminals/4/8/04 15 Franchise, and said Facilities shall be kept flush with the surface of the street and so located as to conform to any Franchise, rule or regulation of the City, or of any permit issued by the Department in regard thereto and shall not interfere with the use of the street for travel. The Franchisee shall have the right, subject to such Franchises, rules or regulations as are now or may hereafter. be in force,.to. make all necessary. excavations in said streets for the construction, maintenance. and repair of said Facilities; provided; however, .that the Franchisee shall first obtain an excavation permit from the Department for doing any such work. Section 4.11 Ordinary Repair. The Franchisee shall obtain an excavation permit from the Department to perform repair work. In the event of a condition that could cause a threat to public health or safety and requires emergency repair work, the Franchisee shall proceed with the repairs and notify the Department as soon as possible, not later than the next business day. Section 4.12 Breaks or Leaks. If any portion of the street shall be damaged by reason of breaks or leaks in any pipe, conduit or appurtenance constructed or maintained under the Franchise, the Franchisee shall, at its own expense, immediately following written or oral notification thereof,-promptly repair any such damage and put such street in as good condition as it was in before such damage or leak, all to the satisfaction of the Director. The Franchisee shall obtain an excavation permit from the City for doing any such work. Section 4.13: Relocation. If, in the sole discretion of the Director, subject to appeal to the Council pursuant to Section 1.20, the Franchisee's Facilities conflict in any way with the construction,` relocation or.repair of.any City or.Redevelopment Agency facility or.project;.or any storm.drain or sewer .owned by_the County of Orange. or,otherauthority or any successor agency of any of these entities, the Franchisee shall relocate its facility to the reasonably nearest alternative location or other location mutually agreeable to the City and the Franchisee necessary to accommodate the construction, relocation or repair of the storm drain, sewer or City facility, either permanently or temporarily, as is determined by the Director to be required within the time required by the Director. Said relocation shall be accomplished at the Franchisee's sole expense. If the Franchisee fails to relocate its Facility within the required time, or fails to pave, surface, grade, repave, resurface or regrade in a timely manner, the City, to the extent permitted by Applicable Law, may cause the work to be done and shall keep an itemized account of the entire cost thereof, and the Franchisee shall reimburse the City or other public entity for such cost within thirty (30) days after presentation to said Franchisee of an itemized account of such costs. The Franchisee shall hold harmless the City, its officers, departments and employees and the other public agency;if any, from any liability which may arise or be claimed to arise from the moving, cutting, or alteration of any of the. Franchisee's :Facilities, or the turning on:or off of water, oil, or other liquid, gas, or electricity required to be accomplished by City or any other public agency as a result of the Franchisee's failure to relocate said facility by the date established by the City or other public agency. The Franchisee shall also be liable for any consequential damages incurred by the City or other public agency arising from the Franchisee's failure to timely complete the work required by this section. Section 4.14 Force Majeure; Franchisee's Inability to Perform. In the event Franchisee's performance of any of the terms, conditions or obligations of the Franchise is prevented by any cause beyond Franchisee's reasonable control, such inability to perform shall g/04 ord/pacific terminals/4/8/04 16 • i be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided Franchisee has notified City in writing within seven (7) days of its discovery of the occurrence of such an event. In such an instance, Franchisee shall have reasonable time; under the circumstances, to perform its Franchise obligations or to procure a substitute for such obligation which is satisfactory to the City. For the purpose of this Section, causes or events not within the.control of the Franchisee shall include, but not be limited.to. acts of God, sabotage, riots or civil disturbances, epidemic, freight embargoes, explosion, natural "disasters such as floods, earthquakes, landslides and fires, rationing, and power or communications failures, but shall not include financial inability of the Franchisee to perform or failure of the Franchisee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is materially due to the acts or omissions of the Franchisee. Part Five Breaches of Franchise Section 5.1 Liquidated Damages. The City finds, and the Franchisee, by its Acceptance, agrees, that as of the time of the renewal of this Franchise, it is impractical, if not impossible to reasonably ascertain the extent of damages which will be incurred by the City as a result of a material breach by the Franchisee of its obligations under this Franchise. Accordingly, the City, through its Director, Council or a hearing officer, may, in its discretion,-assess liquidated damages in the following amounts: (1) Up to two hundred dollars ($200.00) for each day of each material breach, not to exceed six thousand dollars ($6,000.00) for each occurrence of material breach; (2) For a second material breach of the same nature occurring within 12 months where a fine or penalty was previously assessed, up to four hundred dollars ($400.00) for each day of each material breach, not to exceed twelve thousand.dollars ($12,000.00) for each occurrence of the material breach; (3) For a third or further material breach of the same nature occurring within those'same" 12 months, where a fine or penalty was previously assessed up to one thousand dollars $1000.00 for each material breach not to exceed thirty thousand dollars ($30,000.00) for each occurrence of the material breach. (4) Notwithstanding the above, in the event that the Franchisee fails to complete the street restoration work within the time specified in the encroachment or excavation permit, the City may require the Franchisee to pay to the City one thousand dollars ($1,000.00) per day as liquidated damages for each day construction extends beyond the time specified in the permit, or any extension thereof. g/04 ord/pacific term i nals/4/8/04 17 Prior to assessing any liquidated damages against the Franchisee, the City shall have provided Franchisee with notice and opportunity to cure in accordance with the provisions of Section 5.3. The City finds, and the.Franchisee,.by its Acceptance, acknowledges and agrees.that the above-described liquidated damages provisions represent:a.reasonable;sum:in light:of all of the,. circumstances. Said liquidated damages sums°shall be applicable to each calendar day of delay following expiration of the 30-day notice period provided above during which Franchisee has been found by the City Council to be in material default pursuant to this Section. The Franchisee shall pay any liquidated damages assessed by the City Council within ten (10) days after they are assessed. If they are not paid within the ten-day period, the City may withdraw them against the letter of credit or similar security provided pursuant to this Franchise. Section 5.2 Breach of Franchise: Grounds for Assessment of Penalties and Franchise Termination. The City reserves the right to terminate the Franchise or assess damages or penalties against the Franchisee in the event of a material breach of any of the Franchise terms, or any material term-of any applicable federal , state or local statute or regulation,which breach is not cured following written notice and a reasonable opportunity to cure. Breaches which are grounds for termination include, but are not limited to: (1) If the Franchisee fails to comply with Applicable Law. (2) If the Franchisee practices; or attempts to practice,;any.fraud or deceit upon the.City (3) If the Franchisee becomes insolvent, unable or unwilling to pay its debts, or upon listing of an order for relief in favor of Franchisee in a bankruptcy proceeding. (4) If the Franchisee fails to provide or maintain in full force and effect,the liability and indemnification insurance letter of credit or bonds as required by the Franchise. (5) If the Franchisee willfully fails to provide City with required information and/or reports in a timely manner and upon City request, as provided in -the Franchise: (6) If the Franchisee fails to pay the Franchise fee within 60 days after the fee is due,then the City may terminate the Franchise or impose additional penalties pursuant to this Section 5 in addition to the penalties and interest authorized in Section 3.2. (7) Any other willful act or omission by the Franchisee which materially violates the terms, conditions or requirements of the Franchise or any order, directive, rule or regulation issued thereunder and which is not timely corrected or remedied pursuant to Section 5.3 of the Franchise. g/04 ord/pacific terminals/4/8/04 18 Section 5.3 Procedure For Adjudication of Breaches of The Franchise. Prior to imposing any sanction or penalty, including termination of the Franchise upon the Franchisee, the Director shall give the Franchisee notice.of the breach and a reasonable: period.to correct it. The Director shall establish a reasonable notice of cure period. The notice to cure period shall be a minimum of thirty (30) days in all cases (except in cases of emergency where a shorter time may be prescribed consistent with the nature of the emergency). If the breach is not timely cured, the Director shall cause to be noticed a public hearing before the City Council (or refer the matter to a hearing officer, who shall make a recommendation to the City Council) on whether there has been a material breach of the Franchise, and the appropriate penalty. Section 5.4 Heariniz Procedure. (1) A full evidentiary public hearing shall be held to determine if the Franchisee materially breached the Franchise, and what penalty shall be imposed. (2) The evidentiary hearing shall be conducted upon a minimum of fourteen (14) days written notice duly given to the Franchisee and published notice provided,to the public. The Franchisee may ypresent relevant and appropriate.evidence;orally`and in documented form. `Based on the evidence presented at the hearing, a written determination shall be made whether the Franchise should be revoked or the Franchisee should be penalized. The hearing body may make any other determinations which are reasonably related to the Franchise. (3) Should the hearing body find that there has been a material breach of the Franchise, but that revocation is inappropriate,then it may assess and levy monetary penalties against the Franchisee as set forth in this Franchise. (4) The Franchisee shall receive written notice of any action taken following the hearing. (5) Pursuant to Section 5.3 of the Franchise;the Director shall cause the evidentiary hearing to be conducted.by a hearing officer or the City Council. If a hearing officer conducts the hearing, then the City Council shall hold a subsequent public hearing to determine if the hearing officer's recommendation should be affirmed, reversed or modified. (6) The Franchisee shall be entitled to initiate an action in state court to challenge the determination of the City Council pursuant to California Code of Civil Procedure §1094.5 within not more than ninety(90) days of receiving notice of the City Council's action. g/04 ord/pacific terminals/4/8/04 19 Section 6. This Ordinance shall take effect thirty days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 21st day of. June 2004. Ma ATTEST: APPROVED AS TO FORM: City Cler ACAtto REVIEWED AND APPROVED: ITIATE AND APP ED: City Adrrrnistrator Director of Public Works INITIAT N APPROVED - IATED AND AP :ROVED Director Administrative Services Fire Chief g/04 ord/pacific terminals/4/8/04 20 Exhibit A Map depicting pipeline alignment. g/04 ord/pacific terminals/4/g/04 21 8 S1:C er 79u f H --- ....--- - - -- 'I' --- ----- -- -I-- (.';:1, ':/' Y �>::::;_ .. nlrrb�r. �r`E= rN rr f, 11.. •N i. +YAILI(II10 ....A i� 1 wr Ci I .; :G G, h' F.G�.SL,•n, k � I7� . .: :DNIIA-�1}IW1 AV'_ ___ � :IrS'rJ:�.,,i. Yi�vJ.•`...� V:? a.�. � Y(>h I �' �llr; - r:' BERr:.t'`tr" AV G; I ..� - '.+,k�tr �•__I !F.ex t: �� _ 4ss'f�', ;MAn���hlf�+IN. .•..a�!��.I.��v .mt si q _ ... .. .... ;. •YtgR. \i� ''''.`I' ,e'!'ri:. 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I� C7p I _ �� h�• r� r� .i�•'n� r_ .I!!rlur H�.., � 1 EXHIBIT "A" DESCRIPTION FOR THE CITY OF HUNTINGTON BEACH Those certain public streets in the City of Huntington Beach, County of Orange, State of California, described as follows: Along Bolsa Chica Street from a point in the North boundary of the City of Huntington Beach near the intersection of Bolsa Chica Street and Rancho Road, South and Southwesterly 7,204.54 feet of 12" pipeline to a point in the West line of Bolsa Chica Street, being the West boundary of the City of Huntington Beach, that is North of the Westminster Channel and Edinger Avenue. Crossing Edinger Avenue and along Bolsa Chica Street from a point in the North line of Edinger Avenue, being the West boundary of the City of Huntington Beach, Southerly 5,261.5 feet of 12"pipeline to a point in Warner Avenue. Along Warner Avenue, South,West and North 4,018.22 feet.of 12 pipeline to a point-30 feet North of the centerline:of Warner Avenue.and of the South. line of the land conveyed by Southern California Edison Company to Pacific Terminals LLC by a Grant Deed dated July 28, 2003 and recorded August 4, 2003 as Instrument No. 2003000931977 of Official Records in the Office of the County Recorder of Orange County. Along Warner Avenue from a point 30 feet North of the centerline of Warner Avenue and of the South line of the above land conveyed to Pacific Terminals LLC, South and West 328.8 feet of 12" pipeline to the Northwesterly right of way line of the East Garden Grove Wintersburg Channel. Along Warner Avenue from a point on the Southeasterly right of way line of the East Garden Grove Wintersburg Channel West 3,408.49 feet of 12" pipeline to a point in Edwards Street. Along Edwards Street, South 5,289.12 feet of 12" pipeline to a point in the North line of Section 34, Township 5 South, Range 11 West, in the Rancho La Bolsa Chica, also being the centerline of Central Park Drive, that is 12 feet East of the centerline of Edwards Street. Along Edwards Street from a point in the centerline of Edwards Street that is 6.05 feet North of the center of Section 34, Township 5 South, Range 11 West, in the Rancho La Bolsa Chica, also being the intersection of the centerlines of Ellis Avenue and Edwards Street, South and Southeasterly 2,640.03 feet of 12" pipeline to a point in Garfield Avenue. 1 t � Along Garfield Avenue, East 7;857.95 feet of 12" pipeline to the West line of Beach Boulevard, 132 feet wide, State Highway 39. Along Garfield Avenue from .a point in the East line.of Beach-Boulevard, 132 feet wide, State Highway 39, East and South, 2,609.73 feet of 12 pipeline to a point in Newland Street that is 20 feet South of the North line of Section 1, Township 6 South, Range 11 West, in the Rancho Las Bolsas, also being the centerline of Garfield Avenue. Along Newland Street from a point 30 feet North of the South line of Section 12, Township 6 South,Range 1 i West, in the Rancho Las Bolsas, also being the centerline of Atlanta.Avenue, Southwesterly, South and East 4,131.84 feet of 12" pipeline to a point in the East line of Newland Street that is South of the Huntington Beach Channel. Along Newland Street from a point in the West line of Newland Street that is 35 feet North of the Westerly prolongation of the centerline of Hamilton Avenue, East, South and East 1,462.75 feet of 20" pipeline to a point in the East line of Newland Street that is South of the Huntington Beach Channel. CROSSINGS OF PUBLIC STREETS Street Length of crossing Size.of pipe Adams Avenue 40 feet 12" Indianapolis Avenue 40 feet 12" OVERALL LENGTH OF 12" PIPELINE=42,830.22 FEET OVERALL LENGTH OF 20" PIPELINE= 1,462.75 FEET 2 G3Q,d�n1,4n1c.E .3(05`� )e*1,6/ 7- "a " PACIFIC TERMINALS LLC July 22,2004 Ms. Joan Flynn City Clerk City of Huntington Beach 2000 North Main Street Huntington Beach, CA 92648 Subject: Ordinance 3654 Dear Ms. Flynn: The undersigned, as duly-authorized officer of Pacific Terminals LLC, hereby accepts the grant of the oil pipeline Franchise awarded by Ordinance No. 3654, enacted by the Huntington Beach City Council on June 21, 2004. By accepting this Franchise;-Pacific Terminals hereby relinquishes any interest in.the 1958 Franchise granted to Southern California Edison pursuant to City.Ordinance-No.; 687. Dated: July 22, 2004 Pacific Terminals LLC, A Delaware limited liability Company, U Ll� U BY . ,_� `" n T. Wood J Vice President S 5900 CHERRY AVENUE,LONG BEACH,CALIFORNIA 90805-4408 (562)728-2800 FAX(562)728-2823 NO . 3GS� Bond No. 6214959 KNOW ALL MEN BY THESE PRESENTS: That we, PACIFIC TERMINALS LLC; herein 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 bound 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 Obligde for the purpose of, or to exercise the vocation of FRANCHISE OPERATIONS IN.AGCORDANCE WITH CITY ORDINANCE. NOW,THEREFORE, if the Principal shall faithfully comply with all ordinances, rules and regulations which 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 become 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 JULY 15, 2005, 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 after such thirty day notice period, except for defaults occurring prior thereto. Surety is licensed in California and maintains a Best's Financial Size Category of IX. 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 surety has a Best's 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 California 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 15TH day of JULY, 2004. PACIFIC TERMINALS LLG (Principal) By: SAFECO INSURANCE COMPANY OF AMERICA (Surety) By. , LI A T. SOLOVE, Attorney-in-Fact AS To FOVM R McGRATA / O,%VEY 1/2-1 POWER SAFECO INSURANCE COMPANY OF AMERICA CJ A F E C O• GENERAL INSURANCE COMPANY OF AMERICA OF ATTORNEY HOME OFFICE: SAFECO PLAZA SEATTLE,WASHINGTON 9818S No. 5233 KNOW ALL BY THESE PRESENTS: That SAFECO.INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA,each a Washington corporation,does each herebyappoint *•o•*•*$**4*•�-••VIVIENNE DOUGLAS,KATHLEEN K.FREUND;LISA T.SOLOVE;KATALIN.CHURCH;BRIDCET:Y HENRY;Denver Colorado*si:.**** * its true and lawful attomey(s)-in-tact, 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 9th day of June 2004 ti 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 attomeys-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 sipatures may be affixed.by facsimile._ On any instrument conferring such authority or on any bond or.undertaking of the company,_the seal, or a facsimle.thereof;.may.be impressed or affixed cr .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, (Q 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 (ii) Certifying that said power-of-attomey 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." 1,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 0irectors of these corporations,and of a Power of Attomey 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 the day of ZE CO � NRPORIRE " STAY. y SEAL a l953 �, 2 1 's WAS Mo ��0(WaSe \S CHRISTINE MEAD,SECRETARY S-0974iSAEF 2/01 ®A registered trademark of SAFECOCorporation osID912004 POF Company Profile • Pagel of 2 Cwm'7l" it o Company Profile Insurance S AFECO TNSjJRANCE COMPANY O AMERICA STATE FILINGS C-2 SAFECO PLAZA SEATTLE, WA 98185 800-332-3226 Former Names for Company Old Name: SELECTIVE AUTO &F INS CO AMER Effective Date: 11-02-1953 • Agent for Service of Process DAWN JEWORSKI, 120 VANTIS SUITE 130 ALISO VIEJO, CA 92656 Unable to Locate the Agent for Service of Process? Reference_Information. NAIC#: 24740. NAIC Group#: 0163 California Company ID#: 1442-3 Date authorized in California: October 07, 1953 License Status: UNLIMITED-NORMAL Company Type: Property & Casualty State of Domicile: WASMNGTON Lines of Insurance Authorized;to Transact The company is authorized to transact business within these lines of insurance. For an explanation of. any of these terms,please refer to the glossM. AIRCRAFT AUTOMOBILE BOILER AND MACHINERY BURGLARY COMMON CARRIER LIABILITY CREDIT FIRE 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 all 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 ahy 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 generallyapplicable rules of.IbW.." At this time,there is no premium charge resulting from this Act. Exhibit C IRREVOCABLE STANDBY LETTER OF CREDIT�S � - [name of issuing bank]Bank L/C No. Place of Issuance:: Date of Issuance: Applicant Pacific Terminals LLC Long Beach,CA Advising Bank [name] [address] [city, state, zip, country] Reference No. Beneficiary: City_of.Huntington Beach .. 2000 Main Street Huntington Beach;:CA 92648. Date and Place of Expiration: ,2024 at Huntington Beach,CA Amount: $20,000 Sir or Madam: At the request of Pacific Terminals LLC, , Long Beach, CA , we hereby establish our Irrevocable Letter of Credit in your favor up to an aggregate amount of Twenty Thousand U.S. DOLLARS ($20,000), to expire at our counters on ,2024. This letter of credit is available for payment against your draft(s)at sight drawn on [name of issuing bank], accompanied by this original Standby Letter of Credit and the following documents:. A letter from the Director of Public Works of the City of Huntington Beach certifying that Applicant has failed to perform as required under the Franchise Ordinance No. Between the City of Huntington Beach and Pacific Terminals LLC. We agree with you that all draft(s) drawn under and in compliance with this letter of credit will be honored on presentation to us as specified in this letter. g/04 ord/pacific terminals/4/8/04 23 i 0 This credit is subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500. The number and the date of the credit and the name of our bank must be quoted on all drafts required. Please examine this instrument carefully. If you are unable to comply with the terms or conditions, please communicate with your buyer to arrange for.an_amendment.. .This.procedure will .facilitate prompt handling when. documents ate.presented. [signature] Authorized signature [signature] Authorized countersignature g/04 ord/pacific terminals/4/8/04 24 Ord. No. 3654 STATE OF CALIFORNIA ) COUNTY OF ORANGE: ) ss: CITY OF HUNTINGTON BEACH..)` I, JOAN L. FLYNN, the duly appointed, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a re ular meeting thereof held on the 7th day of June, 2004, and was again read to said City Council at a 'regular meeting thereof held on the 21st day of June, 2004, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Sullivan.Coerper;Hardy, Green,:Boardman, Cook; Houch en,:. NOES: None ABSENT: None ABSTAIN: None I,Joan L.Flynn,CITY CLERK of the City of Huntington Beach and ex Clerk of the City Council,do heieby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on July 1,2004. In accordance with the City Charter of said CityAAL Joan L.Flynn,City Clerk C Clerk and ex-officio erk Deputy City Clerk of the City Council of the City of Huntington Beach, California ATTACHMENT #2 Public Hearing Oil Franchise Ordinance Oil Pipeline Franchise ➢Originally granted to Southern California Oil Pipeline Franchise I Edison in 1958 II ➢Sale of assets, between Edison and it Pacific Terminals LLC, which included the Franchise Agreement, was approved �I Adoption of Ordinance Granting by California Public Utilities Commission I� Franchise to Pacific Terminals LLC ➢A new franchise agreement with Pacific Terminals is required to be adopted by Ij ordinance Franchise Agreement ➢Pacific Terminals LLC will assume i responsibility for pipeline operation and maintenance ➢Edison is not released from any current II or future claims I� ➢Agreement includes both annual fees based on linear foot of pipeline and any new or replaced pipeline I� ➢Fee is based on, and restricted by, State law , June 7, 2004 1 • • RCA ROUTING SHEET INITIATING DEPARTMENT: Public Works SUBJECT: Hold Public Hearing for Pacific Terminals Pipeline Franchise Agreement COUNCIL MEETING DATE: June 7, 2004 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Not Applicable 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 form by City Attome Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement Unbudget, 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 Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FO DED Administrative Staff Assistant City Administrator Initial City Administrator (Initial) I`---- City Clerk EXPLANATION FOR RETURN OF ITEM: Only)(Below Space For City Clerk's Use RCA Author: L Daily 5599 URA CERTIFICATE NUMBER SEA 000787852 100 NE A CMARSH PRODUCER „'1; THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS L -�',' NO RIGHTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDED IN THE MARSH USA INC. r✓ , t 1225 17TH STREET,SUITE 2100 y�M 7,, _CITY QF POLICY.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE COVERAGE DENVER,CO 80202-5534 j f'i V(�j'N C, (AFFORDED BY THE POLICIES DESCRIBED HEREIN. 100� COMPANIES AFFORDING COVERAGE JUL —g A CY4�`^PANY 01847-00005-PLL_6- PACTR 01234 ' LA_ . CHUBB CUSTOM INSURANCE CO INSURED 1000. COMPANY PACIFIC TERMINALS,LLC. VI r Ca pl B 5900 CHERRY AVENUE LONG BEACH,CA 90805 COMPANY C COMPANY 7LL4 0 D COVERAGES YThlscertate supersedes and.replaces na y:prevlously it Led,certlfcate for the policy period nofe_d below n r THIS IS TO CERTIFY THAT POLICIES OF INSURANCE DESCRIBED HEREIN HAVE BEEN ISSUED TO THE INSURED NAMED HEREIN FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,CONDITIONS AND EXCLUSIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS LTR DATE(MMIDDIYY) DATE(MM/DD/YY) GENERAL LIABILITY GENERAL AGGREGATE $ COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/OP AGG $ CLAIMS MADE OCCUR PERSONAL 8 ADV INJURY $ OWNER'S&CONTRACTOR'S PROT EACH OCCURRENCE $ FIRE DAMAGE(Any one fire) $ MED EXP(Any one arson $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ ANY AUTO ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) HIRED AUTOS - _ BODILY INJURY NON-OWNED AUTOS (Per accident) PROPERTY DAMAGE $ GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN AUTO ONLY: EACH ACCIDENT $ AGGREGATE $ EXCESS LIABILITY EACH OCCURRENCE $ UMBRELLA FORM _ AGGREGATE $ OTHER THAN UMBRELLA FORM $ WORKERS COMPENSATION AND WC A - EMPLOYERS'LIABILITY TORY LIMITS ER `'- EL EACH ACCIDENT $ THE PROPRIETOR/ n It.CL EL DISEASE-POLICY LIMIT $ PARTNERS/EXECUTIVE OFFICERS ARE: EXCL EL DISEASE-EACH EMPLOYEE $ OTHER A POLLUTION LEGAL LIABILITY 3730-58-94 07/31/03 09/01/04 EACH ACCIDENT $10,000,000 AGGREGATE $10,000,000 DESCRIPTION OF 0PE RATIO NSILOCATIONSIVEHICLESISPECIAL ITEMS RE:ORDINANCE NO.687 CERTIFICATE HOLDER t - CANCELLATION SHOULD ANY OF THE POLICIES DESCRIBED HEREIN BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE INSURER AFFORDING COVERAGE WILL EX89*XYM MAIL An DAYS WRITTEN NOTICE TO THE CITY OF HUNTINGTON BEACH CERTIFICATE HOLDER NAMED HEREIN,�UCMXXAQ>i>6�4QJ6dfIX2SOdkK14M 1614Ydi2 ATTN:CONNIE BROCKWAY,CITY CLERK P.O.BOX 190 &Xa&*(6KXXXKa4bXA=M 2000 MAIN STREET U6998J(M1(yjWItXWXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX HUNTINGTON BEACH,CA 92648 MARSH USA INC. �,y� � BY: Dorothy A.Stevens �r(oM*tv MM1(3102) VALID AS OF 07/06/04 x. s PROOF OF PUBLICATION STATE OF CALIFORNIA) • sso County of Orange ) dry of HUMOIGTON EAC" [swoon `thereafter as. the I am a Citizen of the United States and a AN ORDINANCEOFTHE(RY !matter may tie heard:in �, k,. they regula[ =meeting resident of the County aforesaid; 1 am I (OUN(ILOF,THE(RYOf place' ri this City Council City Council t ::HUNTINGTONBEACH'., Chambers City Hall, over.the age of eighteen years and not a i GRANTING.ANOILPIPEUNE 2000 Main Street Hun- t '&NCg&_ydPACIFIC' + tington Beach, Califor- Parj� to or interested in the below ..; jl nia,the.City Council will TERMINALS II( conduct a public hearing' entitled matter. I am a principal clerk of �NoticEYoFPueuc FARING on theNANCE fOF WTHE OCITY No4ce sshereby/grien 'COUNCIL OF THE CITY' the HUNTINGTON BEACH INDEPENDENT a Ahaton'W! :13 20oa:.tlie OF.HUNTINGTON BEACH' / City�Council of the;City ,. +�, GRANTING 'AN, OI,L; newspa er of general circulation printed fof"Huntmgton Beach PIPELINE TO PACIFIC' t ''adopted a' Resalution TERMINALS •LLC If' and pu lished in the City of Huntington entitled A Resolution;of adopted this,,ordinance the City Council of the will .grant •Pacific Ter Beach, County of Orange, State of Cityof4gits.Intoh enBeach franc an 'oil pipeline Declann Its.lntention`T° franchise that will, Grant an '-0il Pipeline i California and that attached Notice is a terminate in 05) fifteenF[anchJse°t' o,.Pacific years unless'otherwise Te�inma'sb L+LC 'P u r s u tan'"t toithe`Iprovisions of the to ins pursuant i- true and complete copy as was printed the terms.of -the. ordi- Chagtg7, 3 66 of the �Munic�pal Gode o the nance and yin lsdes That and published in the Huntington Beach s h Pacific ors, nafsasi its Cd"y`aofl�untingtonBeS�h successors and assigns and Fountain Valley issues of said sntl�theFranchise Act t will, during the life' of of 1937a as codrfied;;in •the frahchise,pay.to:the • . P.ubhc :Utilities .Code i City of Huntington Beach newspaper to wit the issue(s) of: Sections. 6201; et-i1eq,j an annual fee'consistent the City:Council`of.th'e with Section 6231.5 of City of Huntington Beach the California Public hereby .gives notiw-asl Utilities Code, ?as follows.,. amended' from time to On Monday June 7; time and that m the- 9004 at 7:00 o m or_as_ May 13, 2004 event.such payment is not made, the franchise will be forfeited: ' At the -above-men tioned time and place any person.. interested will 'be heard on othe• proposed ordinance. A copy of the proposed declare, under penalty of perjury, that ordinance-is on file in the City, Clerk's -office;. the foregoing is true and correct. Any questions ce- the proposed-ordinance may. be directed to Linda Daily, .Department.;of Public Works"(714)-536- 5599. Any'person..May Executed on May 13 2004 make. written.-protest / stating objections at Costa Mesa, California. against granting the • franchise by :delivering i the written protest signed by the protestant to the.City:-Clerk -at ra time not later than 7:00 p.m.on June 7,2004. /s/Connie Brockway City Clerk, City- of,I „ Huntington Beach 1. . Published 'Huntington; Beach Independent Mayi 13,2004 '052-512 i Signature Council/Agency Meeting Held: Deferred/Continued to: *pproved ❑ Conditionally Approved ❑ Denied City ler 's Si a ure Council Meeting Date: May 3, 2004 Departmen D umber: CA 04-04 CITY OF HUNTINGTON BEACH REQUEST FOR ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: WILLIAM P. WORKMAN-Acting City Administratore-74-.oO PREPARED BY: JENNIFER MCGRAT Attorney - ROBERT F. BEARDSLEY, Director of Public WorkV0q&-1--- SUBJECT: Adopt A Resolution of Intention to Grant an Oil Pipeline Franchise to Pacific Terminals, LLC. Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis, Environmental Status,Attachment(s) Statement of Issue: Staff recommends that the City Council adopt a resolution declaring its intention to grant an oil pipeline franchise to Pacific Terminals, LLC. 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..a��-�`� , entitled: A Resolution of the City Council of the City of Huntington Beach of Intention to Grant an Oil Pipeline Franchise to Pacific Terminals, LLC.; and 2. Direct the City Clerk to notice a public hearing for June 7, 2004 at 7:00 p.m. or as soon thereafter as the matter may be heard, for the adoption of an ordinance granting an oil pipeline franchise to Pacific Terminals. LLC. Alternative Action(s): Do not adopt the resolution. Analysis: On April 7, 1958, by adoption of Ordinance No. 687, the City Council granted to the Southern California Edison Company ("Edison") an oil pipeline franchise ("1958 Franchise"). On March 22, 2002, Edison and Pacific Terminals LLC, a California limited liability company ("Pacific Terminals") filed an application before the California Public Utilities Commission ("CPUC") requesting the CPUC to approve the sale of certain assets from Edison to Pacific Terminals. The assets subject to the sale include the 1958 Franchise. On July 10, 2003, the CPUC approved the sale. REQUEST FOR ACTION MEETING DATE: May 3, 2004 DEPARTMENT ID NUMBER: CA 04-04 Pacific Terminals has applied to the Director of Public Works for City consent to the transfer of the 1958 Franchise to Pacific Terminals. Upon receipt of the application, state law authorizes the City to pass a resolution declaring its intention to grant the franchise applied for, setting forth a notice of the day, hour and place when and where all persons having any objections to the granting thereof may appear and be heard, and directing the City Clerk to publish notice at least once within fifteen (15) days after the passage of the resolution in a newspaper of general circulation within the municipality. State law requires that the time for a hearing shall be not less than twenty (20) nor more than sixty (60) days after the date of passage of the resolution. Environmental Status: This project is categorically exempt pursuant to Section 15061 (B) (3) of CEQA. Public Works Commission Action: Not required. Attachment(s): City Clerk's Page Number No. Description 1 Resolution No. v -1 entitled: A Resolution of the City Council of the City of Huntington Beach of Intention to Grant an Oil Pipeline Franchise to Pacific Terminals, LLC. All-14 ,Ex h�6<� % -.p•-v�o swot Or-c�.rzu-r���. c�-�C. RCA Author: LM GAR C A\other department RCAs\CA 04-04 May 3 Pipeline franchise(Pacific Terminals).doc -2- 4/12/2004 5:15 PM ATTACHMENT # 1 RESOLUTION NO. 2004-24 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH DECLARING ITS INTENTION TO GRANT AN OIL PIPELINE FRANCHISE TO.PACIFIC TERMINALS,LLC. WHEREAS, on April 7, 1958, by adoption of Ordinance No. 687, the City Council of the City of Huntington Beach granted to the Southern California Edison Company ("Edison") a pipeline franchise (the "1958 Franchise"); and On March 22, 2002, Edison and Pacific Terminals LLC, a California limited liability company ("Pacific Terminals") filed an application before the California Public Utilities Commission ("CPUC")requesting the CPUC to approve the sale of certain assets from Edison to Pacific Terminals; and The assets subject to the sale include the 1958 Franchise; and On July 10, 2003, the CPUC approved the sale with conditions; and Pacific Terminals has applied to the Director of Public Works of the City of Huntington Beach for City consent to the transfer of the 1958 Franchise; and The City desires to provide its: consent to the transfer by way of granting a new oil pipeline franchise to Pacific Terminals; and In exchange and by accepting a new oil pipeline franchise, Pacific Terminals intends to relinquish any interest in the 1958 Franchise. 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 consent to the transfer of the 1958 Franchise from Edison to Pacific Terminals by way of granting an oil pipeline franchise to Pacific Terminals. The granting of the oil pipeline franchise is in exchange for Pacific Terminal's relinquishment of its interest in the 1958 Franchise:. ,The terms of the proposed . franchise are set forth in the "Ordinance of the City Council of the City of Huntington.Beach Granting an Oil Pipeline Franchise to Pacific Terminals, LLC" attached hereto as Exhibit A. SECTION 2. On Monday, June 7, 2004, at 7:00 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 "Ordinance of the City Council of the City of Huntington Beach Granting an Oil Pipeline Franchise to Pacific Terminals, LLC" at which time all persons having any objection to the granting of the franchise to Pacific Terminals may appear before the City Council and be heard thereon. 04reso/grant franchise/4/8/04 -1- • Resolut& No. 2004-24 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 B hereto. 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 3rd day of Ma 2004. 5t=7�� ATTEST: APPROVED AS TO FORM: City Clerk. 4"AttomJy ()(4 REVIEWED AND APPROVED: TIATE AND AP P OVED: City Administrator Director of Public Works 04reso/grant franchise/4/8/04 —2— Res. No. 2004-24 STATE OF.CALIFORNIA. . COUNTY OF ORANGE ) ss CITY OF HUNTINGTON BEACH` ) I, CONNIE BROCKWAY, 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 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 3rd day of May, 2004 by the following vote: AYES: Sullivan, Coerper, Hardy, Green, Boardman, Cook, Houchen NOES: None ABSENT: None ABSTAIN: None City Clerk and ex-officio Jerk of the City Council of the City of Huntington Beach,California EXH- IBIT - A ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH GRANTING AN OIL PIPELINE FRANCHISE.TO PACIFIC TERMINALS LLC. . WHEREAS, on April 7, 1958 by adoption of Ordinance No. 687, the City Council of the City of Huntington Beach granted to the Southern California Edison Company ("Edison") a pipeline franchise (the "1958 Franchise"); and On March 22, 2002, Edison and Pacific Terminals LLC, a California limited liability company ("Pacific Terminals," "Pacific" or "Franchisee") filed an Application ("A. 02-03-035") before the California Public Utilities Commission("CPUC") requesting the CPUC to approve the sale of certain assets from Edison to Pacific; and The assets subject to the sale include the 1958 Franchise; and On July 10, 2003,the CPUC approved with conditions A.02-03-035; and Pacific Terminals has applied to the Director of Public Works of the City of Huntington Beach for City consent to the transfer of the 1958 Franchise to Pacific; and The City Council hereby consents to the transfer by way of this new Franchise to Pacific Terminals. By accepting this Franchise, Pacific Terminals hereby relinquishes any interest in the 1958 Franchise. By granting this Franchise, City does not release Edison from any claims the City presently has or may have in the future against Edison or any entity owned or controlled by Edison. NOW, THEREFORE, the City Council of the City of:Huntington Beach does ordain as follows: Part One Ge neral rovisions Section 1.0 Grant of Franchise. Pursuant to Chapter 3.44 of the Municipal Code of the City of Huntington Beach, the City hereby grants a non-exclusive oil pipeline franchise (the "Franchise") to Pacific Terminals LLC to lay, operate, maintain, use, renew, repair, replace, move, change the size and number of and remove or abandon in place a system of pipelines, together with such valves, fittings, manholes, vaults, pumps and other appliances, appurtenances, attachments or equipment as the Franchisee may deem necessary or convenient for the purpose I of conducting, transporting, conveying and carrying oil and petroleum, extending generally along the following route: (1) southerly along Bolsa Chica Street from and including the intersection of Bolsa Chica Street and Westminster Avenue to Warner Avenue; (2) easterly along Warner Avenue to and including the intersection of Warner Avenue and Edwards Street; (3) g/04 ord/pacific terminals/4/8/04 1 southerly along Edwards Street to and including the intersection of Edwards Street and Garfield Avenue; (4) easterly along Garfield Avenue to and including the intersection of Garfield Avenue and Newland Street; (5) southerly along Newland Street from the intersection of Newland Street and Garfield Avenue to Pacific Coast Highway, all as more particularly depicted as Exhibit A attached hereto. In the .event that the provisions of Chapter 3.44 and this Franchise conflict, the provisions of this Franchise shall apply. This Franchise only authorizes the transportation of oil and petroleum; the Franchise does not authorize the transportation of any other hazardous or non-hazardous substance, including but not limited to natural gas and water. As of the Effective Date, the diameter of the existing pipeline is 12" inches with a length of 42,830.22 and 20" with a length of 1,463.75 feet . This size shall be used for purposes of calculating the Franchise Fee pursuant to Section 3.1(a). Franchisee shall give the City ninety (90) days notice of any change in the size of the pipeline. Section 1.1 Definitions. For the purpose of this Franchise, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. "Shall" is mandatory and"may" is permissive. (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 the Franchisee or any of Franchisee's Facilities or activities. Applicable Law includes all Municipal Code requirements for pipeline franchises, encroachment permits, excavation permits, and any other permit or agreement as required by the Code for any construction performed within the public right-of-way or within the public utility easements or public service easements located on private property, including but not limited to Chapters 3.44 and 12.13 of the Municipal Code. (b) "City" shall mean the City of Huntington Beach, a municipal corporation. (c)."City Clerk" shall mean.the City.Clerk of the City of Huntington Beach: . (d) "City Council" shall mean City Council of the City of Huntington Beach. (e) "City Property" shall mean the property or facilities owned by the City of Huntington Beach or property owned by any of the City's affiliated agencies. , (f) "Claims" shall mean all claims, losses, liabilities, causes of action, demands, damages, suits, judgments, debts, costs, contribution or indemnity, expenses (including but not limited to attorney's fees and costs) fines, penalties,judgments, orders, injunctions and liens of every kind and nature, including, but not limited to, claims relating to any Environmental g/04 ord/pacific terminals/4/8/04 7 Condition or any Release of any Contaminant, claims for personal or bodily injury, wrongful death, injury to real or personal property, natural resources damages, and including claims based on active or passive negligence, gross negligence, contractual, statutory or strict liability, or otherwise, and any claims seeking judicial or administrative relief, or relating to any administrative b governmental agency, :whether or not. any..such claim is proceedings y .any. ultimately.defeated: (h) "Contaminant" shall mean any material, substance or constituent originating from Franchisee's facilities or activities, whether solid, liquid, semisolid, or gaseous in nature, including any hazardous substance or waste, hazardous material, chemical compound, petroleum (or fraction thereof), or any hydrocarbon substance, pollutant or contaminant, as those terms are defined by any federal, state or local law, rule, regulation or order. (i) "Day" shall mean calendar day unless otherwise provided. 0) "Department" shall mean the Public Works Department of the City of Huntington Beach. (k) "Director" shall mean the Director of the Department of Public Works of the City of Huntington Beach, or his written designee. (1) "Effective Date" is July 31, 2003, the date that Pacific Terminals closed escrow on the acquisition of the Facilities from Edison. (m) "Environmental Condition" shall mean the presence or evidence of the likely presence of any Contaminant originating from Franchisee's Facility (s) or from Franchisee's activities, in surface water, ground water drinking water supply, soil, land surface, subsurface strata or the air. (n) "Facility" or`'Facilities" shall mean a system of pipelines, together with such valves, fittings, manholes, vaults, pumps and other appliances, appurtenances, attachments or equipment as the Franchisee may deem necessary or convenient for the purpose of conducting, transporting, conveying and carrying oil and petroleum under and across the public streets, ways, alleys and places within the City of Huntington Beach. (o) "Fire Chief"shall mean the Chief of the Huntington Beach Fire Department. (p) "Franchise" shall mean this Ordinance granting a Franchise to Pacific Terminals LLC, unless some other franchise.is specified. (q) "Franchisee"shall mean Pacific Terminals LLC and its:successors and assigns. (r) "Franchise Payment Period" shall mean the time period between the Effective Date of this Franchise and December 31 of the same year, and each calendar year thereafter, during the life of the Franchise. g/04 ord/pacific terminals/4/8/04 3 (s) "Franchise Report Period" in all cases shall mean the time period between the Effective Date of this Franchise through and including December 31 of that year, and each calendar year thereafter, during the life of the Franchise. (t) ``Municipal Code" shall.mean the Municipal Code of the City of Huntington Beach. (u) "Person" shall mean any individual, person, firm, partnership or corporation: (v) "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)3), 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)1), or any discharge, active or passive migration, deposit, storage, burial, emplacement, seepage, filtration or disposal of a Contaminant into the environment originating from any Facility or from Franchisee's activities. (w) "Remediation Costs" shall mean all costs and expenses, including the City's current rate of overhead, incurred by the City in performing and monitoring any Remedial Work. (x) "Remedial Work" means all "Remedial Action", as that term is defined in Section 101(24) of CERCLA [42 U.S.C. §9601], and all other actions as are necessary or required to remediate a Release of any Contaminant or an Environmental Condition to a condition which would allow unimpaired and .unrestricted use and development and would comply with Applicable Law,.and including but`not limited to all actions necessary to Respond to, .Remove, or Remedy, as those terms are defined in Sections 101(23), 101.(24) and 101(25) of CERCLA [42 U.S.C. §9601], a Release of a Contaminant or Environmental Condition. (y) "Street" shall mean any street, road, highway, alley, lane or court or other public easement, which now exists or may hereafter exist in the City of Huntington Beach and in which the City has the authority to grant a Franchise. Section 1.2 Facilities; Encroachment Permits. Franchisee may not perform any work on the Facilities without obtaining an encroachment permit from the Director pursuant to Chapter 12.13 of the Municipal Code. Franchisee further acknowledges that Section 3.44.380 of the Municipal Code does not authorize installation of above-ground appurtenances pursuant to this Franchise. Notwithstanding Section 3.44.380, Franchisee may apply for an encroachment permit to. install above-ground appurtenances, which .the Director may grant'iri his.reasonable. discretion. Section 1.3 Term. The Franchise Term shall begin on the Effective Date and terminate fifteen (15) years after the Effective Date, on July 31, 2018. The Director is hereby authorized to enter into a memorandum of understanding with Pacific Terminals memorializing the Effective Date and termination date of this Franchise, which memorandum shall be filed with the City Clerk. No later than 120 days before expiration of the term of this Franchise, Franchisee may apply in writing to the Director for a five-year extension of the Franchise. If the Director finds that, throughout the term of this Franchise, Pacific has been in substantial and material compliance with all the terms of this Franchise, he shall extend the Franchise without further g/04 ord/pacific term i nals/4/8/04 4 L City Council approval. The Director's decision to extend or not extend the Franchise may be appealed to the City Council by any person within fourteen (14) days of the Director's decision. A second five-year extension of this Franchise may be granted pursuant to the above procedures. Section 1.4 Acceptance of Franchise. The Franchisee shall, within,thirty (30) days after- the passage of this.Ordinance, file with the City.Clerk of the:City of Huntington.Beach 4ritten acceptance of the terms and conditions of this Franchise in the form set forth in Exhibit B, attached hereto. The Franchisee shall accept the Franchise within the designated time. The Franchise shall be null and void if the written acceptance is not filed within the prescribed time. Section 1.5 Nonexclusive Franchise. The granting of this Franchise shall not prevent the City from granting any identical or similar franchise to any Person other than the Franchisee. Section 1.6 Change in Status. If the Franchisee no longer qualifies before the Public Utilities Commission of the State of California as a common carrier, the Franchisee shall then have no right to continue to operate hereunder after the date of such disqualification, except with the consent of the Council granted upon such additional terms and conditions as the Council may deem proper. Such additional terms and conditions shall be expressed by Ordinance. Section 1.7 Forfeiture. The Franchise is granted and shall be held and enjoyed upon each and every condition contained in this Franchise and shall be strictly construed against the Franchisee. The Franchise shall grant only those rights that are stated in plain and unambiguous terms. Failure.or refusal to comply with any of the conditions of the Franchise; including`the failure to .comply :with any_Applicable,'Law;.shall:constitute grounds for the suspension or forfeiture of the Franchise in accordance with the terms and procedures specified in Part Five. Section 1.8 Eminent Domain. The Franchise granted hereunder shall not in any way to any extent impair or affect the right of the City or any successor to acquire the property of the Franchisee 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 abridge, either for a term or in perpetuity, the City's rights of eminent domain before any court or other public authority in any proceeding of any character. Section 1.9 . Assignme . The Franchisee shall not directly or indirectly sell, transfer, assign or lease the Franchise or any part thereof, or allow another Person or entity to operate any pipeline or.related Facility subject to the Franchise, except with the consent of the Council; :which consent shall not be unreasonably. withheld. Such sale, :transfer, assignment. lease..or agreement shall be made only by filing with the Council a copy of the duly executed instrument of such sale, transfer, assignment lease or agreement and a written request for the consent of the Council to such sale, transfer, assignment, lease or agreement. If such duly executed instrument and such written request is not filed with the Council before the expiration of sixty (60) days after the effective date of such sale, transfer, assignment or lease, then, upon the expiration of said sixty (60) days, the Franchise shall be subject to forfeiture and the Council may, without notice, by Ordinance, repeal the Franchise. As a condition to the granting of consent to such sale, transfer, assignment, lease or agreement, the Council may impose such reasonable additional terms and conditions upon the Franchise and upon the Franchisee or assignee, which the Council g/04 ord/pacific terminals/4/8/04 5 may deem to be in the public interest. Such additional terms and conditions shall be expressed by Ordinance. The Franchisee shall have no right to sell, transfer, assign or lease the Franchise, or any part thereof, except in the manner aforesaid. This Section applies to any assignment, whether by operation of law, by a voluntary act of the Franchisee or otherwise, and includes a transfer of more than fifty percent (50%) of thei voting stock of any corporate grantee or the change in identity.of.any general partner of a Franchisee which is a partnership; whether to a third party or to any subsidiary, parent, or affiliated agency of Franchisee: Section 1.10 Prior Franchises. All Facilities erected, constructed, laid, operated or maintained by the Franchisee in the streets, whether installed by the Franchisee or not, prior to the Effective Date of this Franchise shall become subject to all the terms and conditions of this Franchise upon such Effective Date. Section 1.11 City Officers. Any right or power conferred, or duty imposed upon any officer, employee or Department of the City shall be subject to transfer to any other officer, employee, or Department of the City. Section 1.12 Severability. If any part of this Franchise or the application thereof to any Person or circumstances is for any reason held invalid by a court of competent jurisdiction, the validity of the remainder of the Franchise or the application of such provision to other Persons or circumstances shall not be affected. Section 1.13 Release of Products or.Contaminants. Notwithstanding any other provision herein; in the event of Release of a Contaminant by Franchisee`or from any.Facility of Franchisee or the discovery of an Environmental Condition caused by Franchisee or any Facility of Franchisee, Franchisee shall immediately conduct such Remedial Work and pay all Remediation Costs, at its sole expense, as is necessary to fully mitigate and remediate the same in accordance with all Applicable Law, and as directed by the City except to the extent that City direction conflicts with Applicable Law. In the event that Franchisee fails to perform necessary remediation work, City may impose liquidated damages and/or Franchise termination pursuant to Part 5 of this Franchise, or take any other legal action the City deems appropriate in the circumstances. Section 1.14 Compliance With Applicable Law. Until such time as (i) the Franchise terminates; and (ii) the Franchisee removes all of its Facilities; and (iii) completes any necessary .Remedial Work, Franchisee will comply with all Applicable Law. Section 1.15 Notices and Records. Upon request, Franchisee will transmit to City copies of all notices, orders or statements, other than those relating to taxes, sent to or received from any governmental agency concerning any Facility or any operations conducted by Franchisee in the City pursuant to the Franchise. Upon request, Franchisee shall send to the City copies of requested documents concerning any Facility or any operations conducted by Franchisee pursuant to the Franchise sent to any other governmental agency concurrently with sending them to the other agency and shall send to City documents received by Franchisee within five days of receipt by Franchisee unless providing documents to City would conflict with Applicable Law. g/04 ord/pacific terminals/4/8/04 6 Section 1.16 Access to Records and Property. Upon request, the Franchisee shall permit the City or its duly authorized representative to examine all of Franchisee's Facilities, together with any appurtenant property of the Franchisee, and to examine and transcribe any and all books, accounts, papers,.maps,.and other records kept or.maintained by the Franchisee or under its control which concern the. operations, affairs, transactions or property of the Franchisee with respect thereto. Said records shall be made available to the City at a location in either'`the County of Orange or the County of Los Angeles. Section 1.17 Removal or Abandonment of Facilities. Subject to Applicable Law, at the time of the expiration (unless extended), revocation, or termination of this Franchise, or the permanent discontinuance of the use of its Facilities, or any portion thereof, the Franchisee shall, within thirty (30) days thereafter make written application to the Director and to the City Fire Chief for authority to either abandon all or a portion of such Facilities in place or to remove all or a portion of such Facilities. Thereupon the Director and the Fire Chief jointly and unanimously shall determine whether any abandonment or removal which is thereby proposed may be effected without detriment to the public interest or under what conditions such proposal of abandonment or removal may be safely affected and shall then notify the Franchisee according to such requirements as shall be specified in the Director's order. In order to make their determination, the Director and the Fire Chief may require the Franchisee to pressure test the Facilities, to complete a sample testing program requiring borings and physical examination of the integrity of the Facilities, and such other steps as they deem reasonable. The Franchisee shall pay to the City the cost of_all tests required to determine whether the Facilities shall.be abandoned'or removed.. .,- Within ninety (90) days after receipt of the Director's and Chief s order.-Franchisee shall, pursuant to such order, remediate the soil surrounding the Facilities pursuant to the standards of Applicable Law, and either (a) remove all or a portion of such Facilities; or (b) abandon in place all or a portion of such Facilities in accordance with all conditions prescribed. If any Facilities to be abandoned in place, subject to prescribed conditions, shall not be abandoned in accordance with all of such conditions, then the Director may make additional appropriate orders, including if deemed appropriate, an order that the Franchisee shall remove all such Facilities. If the Director and Fire Chief approve abandonment in place of all or part of the Facilities, the Franchisee shall pay to the City a fee in the amount the Director reasonably . determines to be equal to one-half of the cost of removal of the Facilities Section 1.18 Appeal. Any decision made by the Director pursuant to authority delegated in this Franchise may be appealed by any person to the City Council. For purposes of seeking judicial review, the decision of the City Council shall be final when notice of the decision is mailed by first class mail to the Franchisee. g/04 ord/pacific terminals/4/8/04 7 Part Two Liability, Indemnification and Insurance Section 2.1 Liability. The Franchisee shall be liable to the City for damage to City property; including but not limited to any street, or any.other cost incurred by the City caused by Franchisee, any of Franchisee's Facilities or by any,Person acting on Franchisee's behalf. ,The Franchisee shall be held to a 'standard of strict liability to `City for any activity conducted. pursuant to or in connection with the Franchise. The Franchisee's strict liability shall extend to any consequential damages incurred by the City, and to any costs, including Remediation Costs, incurred by the City for control or abatement of any Environmental Condition, Release of Contaminants, Remedial Work or resulting from any activity conducted by or on behalf of Franchisee pursuant to the Franchise. Section 2.2 Damage to City Property. Any damage done to City property by Franchisee in exercising any right, power, or privilege under this Franchise, or in performing any duty under or pursuant to the provisions of this Franchise, shall be promptly repaired by Franchisee at its sole cost and expense to as good a condition as it was before such damage was incurred, to the satisfaction of the Director. If the Franchisee, within ten (10) days after receipt of written notice from the City, instructing it to repair such damage, shall fail to commence to comply with such instructions, or, thereafter, shall fail diligently to prosecute such work to completion, then the City immediately may do work necessary to carry out said instructions at the cost and expense of the Franchisee, which cost and expense, by the acceptance of the Franchise, the Franchisee agrees to.pay upon demand. .If such damage'constitutes an immediate danger to the public:health or safety requiring the immediate repair thereof, the City.without.notice.may repairs damage and the Franchisee agrees to pay all costs incurred. Section 2.3 Indemnification. The Franchisee shall indemnify to the fullest extent permitted by law, and defend and hold the City, and its Council members, employees, remediation consultants, environmental consultants, agents and attorneys free and harmless from and against all Claims arising from or in any way related to the Franchise or activities conducted by or on behalf of Franchisee. The City and the other parties indemnified herein shall have the right to approve the attorneys selected by Franchisee to represent them. In the event Franchisee does not provide attorneys acceptable to the indemnified parties, the indemnified parties may select attorneys of their choice, so long as the attorney's rates do not exceed the lesser of the rates the indemnified parties or the Franchisee pays for other legal services. The indemnity provided herein shall survive the expiration or other termination of the Franchise. Section 2.4 Insurance. Franchisee shall for the duration of this Franchise, at Franchisee's sole cost and expense, keep or cause to be kept in full force and effect, for the mutual benefit of City, its officers, elected or appointed officials, employees, agents and volunteers, and Franchisee,the following insurance coverages: (a) A comprehensive form of commercial general liability insurance, including but not limited to coverage for liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and protecting against claims, liability and defense costs g/04 ord/pacific terminals/4/8/04 8 arising from Franchisee's exercise of the rights granted by this Franchise, including the use, construction, and/or maintenance of the Facilities authorized by this Franchise, of at least three million dollars ($3,000,000)per occurrence. . (b), Pollution legal liability_coverage applicable to bodily.injury, property. damage, cleanup costs; and defense,. including costs and:-expenses incurred in the investigation, defense, or settlement of claims, all in connection `with° 'any pollution loss arising from the Facilities. Coverage shall be maintained in an amount of at least two million dollars ($2,000,000) per loss, with an annual aggregate of at least ten million dollars ($10,000,000). (c) Business auto insurance covering Franchisee's owned, non-owned and hired vehicles, with limits of not less than three million dollars ($3,000,000) each accident. (d) Workers' compensation and employer's liability coverage as required by statute. All insurance required by provisions of this Franchise shall be carried only in responsible insurance companies licensed to do business in the state of California and having a Best rating of no less than ANII. All such policies shall contain endorsements to the effect that (a)the insurer waives the right of subrogation against the City, including its elected officials, officers, employees and agents; (b) the policies are primary and noncontributing with any insurance that may be carried by the City; .(c). they cannot be .cancelled or materially changed except after providing no less than thirty days prior written notice to the City; and (d) the City, its elected officials, officers and employees are named additional insureds under the commercial general liability and pollution legal liability policies. Franchisee shall furnish City with copies of all such policies promptly upon receipt of them, or certificates with endorsements evidencing the insurance, prior to exercising any of the rights granted by this Franchise. Thereafter, Franchisee shall provide evidence of renewal or replacement of a policy already in existence and required by this Franchise, no less than twenty days' prior to expiration or other termination of such policy. The liability policies required by this Section may provide for deductibles or retentions of up to Ten Thousand Dollars ($10,000.00)per claim. Notwithstanding the foregoing, if the Franchisee submits appropriate assurances, and with the joint approval of the City's Director of:Public Works; Risk Manager and.City Attorney; Which may be denied in their reasonable discretion, the deductible may be increased.up to Two Million Dollars ($2,000,000.00). The Franchisee shall file with the City Clerk endorsement and certificates of insurance for each of the required policies executed by the company issuing the policy, certifying that the policy is in force and providing the following information with respect to said policy: (a) The policy number; (b) The date upon which the policy will become effective and the date upon which it will expire; p/04 ord/pacific term i nals/4/8/04 9 (c) The names of the named insured and any additional insured; (d) Subject of the insurance; (e) The type of coverage provided by the insurance; (f) Amount of limit of coverage provided by the insurance; (g) A description of all endorsements that forma part of the policy. The Franchisee shall not commence operations until Franchisee has complied with this Section. The Franchisee shall cease operations if the Franchisee fails to maintain said policies in full force and effect. In the event any policy is cancelled or reduced in amount or scope or coverage, the Franchisee shall provide the City, not later than fifteen (15) days prior to the effective date of the cancellation or reduction in coverage, a certificate of insurance showing that the Franchisee will have replacement insurance in full force and effect after the effective date of the cancellation or reduction in coverage and shall provide a certified copy of such replacement insurance meeting the requirements of this section. Not more frequently than once every two (2) years, if, in the sole opinion of City, the amount and/or scope of the above insurance is not adequate, Franchisee shall adjust the insurance coverage required under this Section as reasonably required by City. Section 2.5 Faithful Performance; Letter of Credit. (1) Letter of Credit. The Franchise shall establish a letter of credit in the sum of Twenty Thousand Dollars .($20,000.00) within forty.-five.(45). days after the Effective Date of this Franchise. The letter of credit shall be in d.form consistent with Exhibit C, attached hereto The City may draw on the letter of credit any amounts assessed as liquidated damages pursuant to Part Five. The Franchisee shall restore to the letter of credit any amount the City withdraws as liquidated damages, within thirty (30) days after the City withdraws the money. The Franchisee may provide cash or a cash equivalent in .substitution of the letter of credit including without limitation a certificate of deposit or savings account, the rights of which have been signed over to the City. Any interest accrued on such cash or cash equivalent security shall be paid over annually to the Franchisee. Franchisee's recourse, in the event Franchisee believes any taking of funds from the Letter of Credit is improper, shall be through legal action, after the Letter of Credit has been drawn upon. (2) Surety Bond. As an alternative to establishing a Letter of Credit securing the payment of liquidated damages as set forth in Part Five, the Franchisee may obtain a surety bond acceptable to the City, to guarantee the sum of Fifty Thousand Dollars ($50,000.00). The Surety Bond shall be in a form acceptable to the City and shall be submitted within forty-five (45) days after the Effective Date of this Franchise Agreement. The form of the Surety Bond shall contain, at a minimum: (a) That the surety is licensed in California and maintains a Best's Financial Size Category of IX. g/04 ord/pacific terminals/4/8/04 10 (b) That the surety holds a Certificate of Authority from the United States Department of the Treasury as an acceptable reinsuring company pursuant to Department Circular 570 as published in the Federal Register. (c) The surety,shall have a Best's insurance rating of not less than A (d) The principal amount of the obligation shall be Fifty Thousand Dollars ($50,000.00). (e) The obligation by the surety to pay the principal amount to the City is unconditional pursuant to Civil Code Section 2806. (f) The liability of the surety for the payment of the principal amount accrues immediately upon the default of the Franchisee, and without demand or notice pursuant to Civil Code Section 2807. (g) The surety shall waive any defense based on or arising out of any defense of the Franchisee other than payment in full of the principal amount including, without limitation, a defense based on or arising out of the disability of the Franchisee,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."City to.proceed_against the Franchisee or pursue any other remedy in the City's power. Further, said 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. (h) The surety shall also undertake to pay reasonable attorneys' fees and other costs incurred by the City in enforcing the Surety Bond. (i) Franchisee shall require said surety to submit to the City documentation evidencing the above requirements and any documentation required of the Franchisee by the surety for the purpose of ascertaining Franchisee's financial condition. Part Three Compensation Section 3.1 Rates. As consideration for the Franchise granted, the Franchisee shall pay to the City in lawful money of the United States the following: (a) Annual Franchise Fee. Pursuant to City Code § 3.44.260, the Franchisee, as consideration for the Franchise, shall, within sixty (60) days after the end of each calendar year during the life of the Franchise, including the year of granting the g/04 ord/pacific terminals/4/8/04 11 Franchise, pay to the City a fee based on the formula set forth in Public Utilities (P.U.) Code § 6231.5. For pipelines with an internal diameter not listed in P.U. Code § 6231.5, the fees shall be in the same proportion to the fees of a 12-inch- diameter pipe as the diameter of the unlisted pipe is to 12 inches. As of the Effective.Date of that.Franchise,the:Fran6hise.Fee.shall be $ 0.26.per linear foot of 12"pipeline and $ 0.44 per linear foot of 20" pipeline;multiplied by the applicable Consumer Price Index. Consequently, the Franchise Fee for the prorated period from the Effective Date through December 31, 2003 shall be $7,095.88. This amount shall be paid within sixty (60) days after the end of calendar year 2003 or passage of this Ordinance, whichever occurs later. The Franchise Fee for the prorated period from January 1, 2004 through December 31, 2004 shall be $17,571.70. (b) Base Construction Fee. In addition to the Annual Franchise Fee, any fees imposed by Applicable Law and any fees or conditions on any encroachment permit issued for street work, pursuant to Municipal Code Section 3.44.280, the Franchisee shall pay at the time of installation, relocation, or replacement of any pipeline or other Facility covered by the Franchise, a Base Construction Fee of One Dollar ($1.00) for each foot of pipeline or fractional part thereof installed, replaced or relocated in, on or under streets or other rights-of-way within the City. The Base_ Construction Fee shall be escalated in accordance with the provisions of Section 3.44.290 of the Code; with the base year being January 1, 20.03 through December 31, 2003. -This fee shall not be applicable to work performed pursuant to Section 4.13: (c) Publication and Administrative Issuance Costs. The Franchisee shall pay to the City within thirty (30) days after receiving a statement therefor, all reasonable administrative and other costs, including attorneys fees, incurred by the City in processing the application for a Franchise, including but not limited to the preparation of any reports, statements or studies pursuant to the California Environmental Quality Act ("CEQA") (Public Resources Code §§ 21000, et seq.) and any similar Federal statute, or any successor statute, and for all reasonable advertising and publishing costs, including the cost of publishing the Franchise, if necessary, incurred.in connection with the granting of the Franchise. In the event that environmental studies or reports are not required, such costs shall not'exceed . ten thousand dollars ($10,000). Section 3.2 Late Franchise Fee Payments. (a) Fees and rates due from the Franchisee 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 return must be received by the Treasurer during normal business hours on the first regular working day following the weekend or legal holiday. A direct deposit, including electronic fund transfers and other similar methods of electronically exchanging monies between financial g/04 ord/pacific terminals/4/8/04 12 accounts, made by the Franchisee in satisfaction of its obligations under this Section shall be considered timely if the transfer is initiated on or before the due date, and the transfer settles into the City's account on the following business day. (b) If the,Franchisee fails to :remit any fee .or rate on .or. before the due date, the Franchisee shall.pay. a penalty for such delinquencies .at the rate of ten percent (10%) of the total that is delinquent in the remittance: (c) If the fee or rate is not received by the Treasurer within thirty (30) days following the date on which it first became delinquent, the Franchisee shall pay a second delinquency penalty of ten percent (10%) of the amount of fee or rate in addition to the amount of the fee or rate and the penalty first imposed. (d) The City Treasurer shall have the power to impose additional penalties upon the Franchisee for fraud or gross negligence in reporting or remitting at the rate of twenty-five percent(25%) of the amount of the fee or rate required to be remitted. (e) In addition to any other penalties imposed by this Section, the Franchisee shall pay interest at the rate of one and one-half percent (1-1/2%) per month, or any fraction thereof, on the amount of the fee or rate, exclusive of penalties, from the date.on which the fee or rate first became delinquent, until paid. (f) For collection purposes only,_ every penalty .imposed and:such interest that is accrued under the provisions of this section Shall become a.part of the Tee or rate . herein required to be paid. Section 3.3 Proration of Payments. In the event of abandonment of Facilities in compliance with Section 1.19 or in the event of removal of such Facilities by the Franchisee, the annual franchise fee required under Section 3.1 shall be prorated for the calendar year in which such removal or abandonment occurs as of the end of the calendar month in which removed or abandoned. Section 3.4 Records. The Franchisee 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. Part Four Construction Section 4.1 Construction Requirements. (1) Pipelines and all other Facilities shall be constructed and maintained in a good workmanlike manner and in conformity with Applicable Law and in accordance with the latest edition of Standard Specifications for Public Works Construction or other construction standards per the approved encroachment or excavation permit(HBMC 12.10). g/04 ord/pacific terminals/4/8/04 13 (2) All construction shall be accomplished between the hours specified by the City in the approved encroachment or excavation permit or Applicable Law. (3) Prior to commencing any Street work, Franchisee shall submit to Director detailed engineering and traffic control .plans, including site.. _hours of construction, prepared under the supervision of a professional civil engineer or traffic engineer licensed to practice in the State of California. No construction related activities may be conducted in the Street without a City- approved encroachment or excavation permit, engineering plans, and a traffic control plan. (4) Franchisee 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 Franchisee, Franchisee shall respond in a timely manner. Unless the Director grants an extension, which the Director shall not unreasonably deny, Franchisee shall correct within twenty-four hours any adverse impact to the Streets caused by Franchisee's Facilities. (5) Every working day during construction, Franchisee shall notify the designated City staff member of the Iocation of the next day's construction activities. The number of concurrent construction locations may be limited by the City. Section 42 Automated•Equipment. .Within 5 years of the acceptance. of the grant of Franchise, Franchisee shall install such.controls; valves and other appurtenances sufficient to . remotely monitor and control the operations of the pipeline and storage interface within the City of Huntington Beach. Such controls and equipment shall include the capability of remotely detecting leaks, spills or releases of petroleum products from Franchisee's facilities within the City of Huntington Beach. Section 4.3 New Installation or Replacement. New installation or replacement of pipelines and all other Facilities necessary for the installation, operation, maintenance, and safety of pipelines and conduits shall be laid and maintained pursuant to Applicable Law. All such installations or replacements shall be reviewed by the Director as to the most desirable location in the streets of the City and his or her decision shall be final and binding on the Franchisee subject to appeal to the Council pursuant to Section 1.18. Section 4.4 Permits. Where the provisions of lany Applicable Law, which shall be in force at the time, require the issuance of an excavation, encroachment or other type of permit,the Franchisee shall not commence any excavation or encroachment work under the Franchise until it shall have obtained such permits, except in cases of emergency affecting public health, safety or welfare or the preservation of life or property, in which case the Franchisee shall apply for such permits not later than the next business day. The Franchisee's application for a permit under Applicable Law shall show the length and proposed location of the pipeline and/or other Facility intended to be installed, and such other facts as the Department may require. The Franchisee shall pay any and all permit inspection fees to the Department. g/04 ord/pacific terminals/4/8/04 14 Section 4.5 Work on and Restoration of Streets. The work of constructing, laying, replacing, maintaining, repairing or removing all pipelines and other Facilities authorized under the provisions of this Franchise in, over, under, along or across any Street shall be conducted pursuant to HBMC §§12.13.120 — 12.13.150 to minimize hindrance to the use of the Street for purposes of travel, and as soon as such work is completed, all portions of the.Street.which have . been:excavated. or otherwise damaged thereby shall promptly and in a workerlike manner.be repaired, replaced or restored and placed in as good condition as the same was before the commencement of such work. When repairing Street work, Franchisee shall grind and overlay the full width of any lane or partial lane which has been excavated or otherwise damaged. In the event that the Franchisee shall fail or neglect to make such Street repair, replacement, or restoration work, then ten (10) days after notice therefor has been given Franchisee by the Director, the City may repair, replace or restore said highway at the expense of Franchisee. The Franchisee agrees to pay to the City the cost of performing such work. The amount so chargeable shall be the direct cost of such work plus the current rate of overhead being charged by the City for reimbursable work. Section 4.6 Failure to Timely Comply. Whenever the Franchisee fails to complete any work required by the terms and conditions of the Franchise, and the permits issued thereunder, within the time limits required thereby, the City may complete or cause to be completed said work in compliance with Applicable Law at the expense of the Franchisee. The Franchisee agrees to pay to the City the cost of performing such work. The amount so chargeable to Franchisee shall be the reasonable direct cost of said work plus the current rate of overhead being charged by the City for reimbursable work. Section 4.7 Completion Statement. Upon the completion of the construction of any pipelines or other Facilities constructed pursuant to this Franchise, the Franchisee shall submit a statement to the Director, identifying the permit or permits issued by the Department, the total length of pipeline, pipeline material, diameter of pipeline, the construction of which was authorized under such permit or permits, the total length of pipeline or other Facility actually laid, and as-built drawings. Section 4.8 Shoring. The Franchisee will provide at its sole cost such shoring or other support as shall be reasonably required to support, maintain, and protect Franchisee's facility in connection with any storm drain or sewer constructed by the County of Orange or other duly- constituted authority or in connection-with any facility constructed by City..or by any successor: agency ofany of these agencies. Section 4.9 Mans. Within ninety (90) days following the date in which any Facilities have been laid, removed or abandoned under the Franchise, the Franchisee shall file a map or maps in City-approved digital format with the Department showing the location, depth, and size of the Facilities so laid, removed or abandoned. Section 4.10 Facilities. The Franchisee shall have the right to construct, maintain and repair such traps, manholes, conduits, valves, appliances, attachments and other Facilities as may be necessary or convenient for the proper maintenance and operation of the pipelines under said g/04 ord/pacific terminaW4/8/04 15 Franchise, and said Facilities shall be kept flush with the surface of the street and so located as to conform to any Franchise, rule or regulation of the City, or of any permit issued by the Department in regard thereto and shall not interfere with the use of the street for travel. The Franchisee shall have the right, subject to such Franchises, rules or regulations as are now or may hereafter be in force; to make all necessary excavations in said streets for I the:construction, maintenance and repair of said Facilities; provided, however, that the`Franchisee shall first obtain an excavation permit from the Department for doing any such work. Section 4.11 Ordinary Repair. The Franchisee shall obtain an excavation permit from the Department to perform repair work. In the event of a condition that could cause a threat to public health or safety and requires emergency repair work, the Franchisee shall proceed with the repairs and notify the Department as soon as possible, not later than the next business day. Section 4.12 Breaks or Leaks. If any portion of the street shall be damaged by reason of breaks or leaks in any pipe, conduit or appurtenance constructed or maintained under the Franchise, the Franchisee shall, at its own expense, immediately following written or oral notification thereof, promptly repair any such damage and put such street in as good condition as it was in before such damage or leak, all to the satisfaction of the Director. The Franchisee shall obtain an excavation permit from the City for doing any such work. Section 4.13 Relocation. If, in the sole discretion of the Director, subject to appeal to the Council pursuant to Section 1.20, the Franchisee's Facilities conflict in any way with the construction, relocation or repair of any City or Redevelopment Agency facility`or, project,for any storm drain or sewer owned by the County of Orange or other authority or'any successor agency of any of these entities, the Franchisee shall relocate its facility to the reasonably nearest alternative location or other location mutually agreeable to the City and the Franchisee necessary to accommodate the construction, relocation or repair of the storm drain, sewer or City facility, either permanently or temporarily, as is determined by the Director to be required within the time required by the Director. Said relocation shall be accomplished at the Franchisee's sole expense: If the Franchisee fails to relocate its Facility within the required time, or fails to pave, surface, grade, repave, resurface or regrade in a timely manner, the City, to the extent permitted 1 by Applicable Law, may cause the work to be done and shall keep an itemized account of the entire cost thereof, and the Franchisee shall reimburse the City or other public entity for such cost within thirty (30) days after presentation to said Franchisee of an itemized account of such costs. The Franchisee shall hold harmless the City, its officers, departments and employees and the other public agency, if any, from any liability which may arise or be claimed to arise from the moving, cutting, or alteration of any of the Franchisee's Facilities, or the turning on or off of water, oil, or other liquid, gas, or electricity required to be accomplished by City or any other public agency as a result of the Franchisee's failure to relocate said facility by the date established by the City or other public agency. The Franchisee shall also be liable for any consequential damages incurred by the City or other public agency arising from the Franchisee's failure to timely complete the work required by this section. Section 4.14 Force Maieure; Franchisee's Inability to Perform. In the event Franchisee's performance of any of the terms, conditions or obligations of the Franchise is prevented by any cause beyond Franchisee's reasonable control, such inability to perform shall g/04 ord/pacific terminals/4/8/04 16 be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided Franchisee has notified City in writing within seven (7) days of its discovery of the occurrence of such an event. In such an instance, Franchisee shall have reasonable time, under the circumstances, to perform its Franchise obligations or to procure a substitute for such obligation which is.satisfactory to the City. For the purpose of this.Section, causes or events not.... within the control of the Franchisee shall. include, but.not be.limited to acts of God, sabotage, riots or civil disturbances; epidemic, freight embargoes, explosion, naturat disasters such as floods, earthquakes, landslides and fires, rationing, and power or communications failures, but shall not include financial inability of the Franchisee to perform or failure of the Franchisee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is materially due to the acts or omissions of the Franchisee. Part Five Breaches of Franchise Section 5.1 Liquidated Damages. The City finds, and the Franchisee, by its Acceptance, agrees, that as of the time of the renewal of this Franchise, it is impractical, if not impossible to reasonably ascertain the extent of damages which will be incurred by the City as a result of a material breach by the Franchisee of its obligations under this Franchise. Accordingly, the City, through its Director, Council or a hearing officer, may, in its discretion;assess liquidated damages in the following amounts: (1) Up to two hundred dollars ($200.00) for each day of each material breach, not to exceed six thousand dollars ($6,000.00) for each occurrence of material breach; (2) For a second material breach of the same nature occurring within 12 months where a fine or penalty was previously assessed, up to four hundred dollars ($400.00) for each day of each material breach, not to exceed twelve thousand dollars ($12,000.00) for each occurrence of the. material breach; (3) For a third or further material breach of the same nature occurring -within those same 12 months, where a `fine_or penalty was previously assessed, up to one thousand dollars ($1,000:00) for,each material breach; not to exceed thirty thousand dollars ($30,000.00) for-each occurrence of the material breach. (4) Notwithstanding the above, in the event that the Franchisee fails to complete the street restoration work within the time specified in the encroachment or excavation permit, the City may require the Franchisee to pay to the City one thousand dollars ($1,000.00) per day as liquidated damages for each day construction extends beyond the time specified in the permit, or any extension thereof. g/04 ord/pacific term i nals/4/8/04 17 • • Prior to assessing any liquidated damages against the Franchisee, the City shall have provided Franchisee with notice and opportunity to cure in accordance with the provisions of Section 5.3. The City finds, and the Franchisee, by.its Acceptance, acknowledges and agrees that the- above-described liquidated damages.provisions represent a reasonable-sum in light`of all of the . circumstances. Said liquidated damages sums shall be applicable to each calendar day of delay following expiration of the 30-day notice period provided above during which Franchisee has been found by the City Council to be in material default pursuant to this Section. The Franchisee shall pay any liquidated damages assessed by the City Council within ten (10) days after they are assessed. If they are not paid within the ten-day period, the City may withdraw them against the letter of credit or similar security provided pursuant to this Franchise. Section 5.2 Breach of Franchise: Grounds for Assessment of Penalties and Franchise Termination. The City reserves the right to terminate the Franchise or assess damages or penalties against the Franchisee in the event of a material breach of any of the Franchise terms, or any material term of any applicable federal , state or local statute or regulation, which breach is not cured following written notice and a reasonable opportunity to cure. Breaches which are grounds for termination include, but are not limited to: (1) If the Franchisee fails to comply with Applicable Law. (2) ' If the Franchisee practices;or attempts t.practice,any fraud or deceit upon the City. (3) If the Franchisee becomes insolvent, unable or unwilling to pay its debts, or upon listing of an order for relief in favor of Franchisee in a bankruptcy proceeding. (4) If the Franchisee fails to provide or maintain in full force and effect,the liability and indemnification insurance letter of credit or bonds as required by the Franchise. (5) If the Franchisee willfully fails to provide City with required information and/or reports in a timely manner and upon City request, as provided in the Franchise: (6) If the Franchisee fails to pay the Franchise fee within 60 days after the fee is due,then the City may terminate the Franchise or impose additional penalties pursuant to this Section 5 in addition to the penalties and interest authorized in Section 3.2. (7) Any other willful act or omission by the Franchisee which materially violates the terms, conditions or requirements of the Franchise or any order, directive, rule or regulation issued thereunder and which is not timely corrected or remedied pursuant to Section 5.3 of the Franchise. g/04 ord/pacific terminals/4/8/04 18 . i • Section 5.3 Procedure For Adjudication of Breaches of The Franchise. Prior to imposing any sanction or penalty, including termination of the Franchise upon the Franchisee, the Director.shall give the Franchisee notice of the breach.and a reasonable period to correct it The Director shall establish a reasonable notice of cure period. The notice to cure period shall be a minimum of thirty (30) days in all cases (except in cases of emergency where a shorter time may be prescribed consistent with the nature of the emergency). If the breach is not timely cured, the Director shall cause to be noticed a public hearing before the City Council (or refer the matter to a hearing officer, who shall make a recommendation to the City Council) on whether there has been a material breach of the Franchise, and the appropriate penalty. Section 5.4 Hearing Procedure. (1) A full evidentiary public hearing shall be held to determine if the Franchisee materially breached the Franchise, and what penalty shall be imposed. (2) The evidentiary hearing shall be conducted upon a minimum of fourteen (14) days written notice duly given to the Franchisee and published notice provided to the.public. The.Franchisee may present relevant and appropriate evidence, orally and in documented form. Based on the evidence presented at the hearing, a written determination shall be made whether the Franchise should be revoked or the Franchisee should be penalized. The hearing body may make any other determinations which are reasonably related to the Franchise. (3) Should the hearing body find that there has been a material breach of the Franchise, but that revocation is inappropriate,then it may assess and levy monetary penalties against the Franchisee as set forth in this Franchise. (4) The Franchisee shall receive written notice of any action taken following the hearing. (5) Pursuant to Section 5.3 of the Franchise,the Director shall cause.the evidentiary hearing to be conducted by a hearing officer or the City Council. If a hearing officer conducts the hearing, then the City Council shall hold a subsequent public hearing to determine if the hearing officer's recommendation should be affirmed,reversed or modified. (6) The Franchisee shall be entitled to initiate an action in state court to challenge the determination of the City Council pursuant to California Code of Civil Procedure §1094.5 within not more than ninety(90) days of receiving notice of the City Council's action. -Id/pacific terminals/4/8/04 19 i • Section 6. This Ordinance shall take effect thirty days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the. day of 2004..... .. Mayor ATTEST: APPROVED AS TO FORM: c City Clerk dCiy REVIEWED AND APPROVED: ITIATE AND APP ED: City Ad mstrator Director of Public Works INITIAT APPROVED` IATED AND`APPROVED: Director Administrative Services Fire Chief g/04 ord/pacific terminals/4/8/04 20 Exhibit A Map depicting pipeline alignment. g/04 ord/pacific terminals/4/8/04 21 ------------------- ------------- r------A 0 ........... ------ ----- ------ L To Av 4nd r ( .. __ olli-H}FLY:IM A CAfil y' 0. 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' �� ` •', 1 loll 5t FI',lj lit f: �. �. � RCACIr �.$�. ^•'����• .`Wi'�,:.• ..•,� •q ..\ter,,:-,r ,.� 3i' 1 5 u (t: i'.i}. .2: ti.{%�` �'-� c• �N�. � 5 ai 'uu_`.•Y?ri -�,:.-Yt:- 1 :4is,}c•>: (?,:�::',�`,.,:`phi . ca..`^;:, .L IE:}�:t un�:�LAli y, Y T EXHIBIT "A" DESCRIPTION FOR THE CITY OF HUNTINGTON BEACH Those certain public streets in the City of Huntington Beach, County of Orange, State of California, described as follows: Along Bolsa Chica Street from a point in the North boundary of the City of Huntington Beach near the intersection of Bolsa Chica Street and Rancho Road, South and Southwesterly 1,204.54 feet of 12" pipeline to a point in the West line of Bolsa Chica Street, being the West boundary of the City of Huntington Beach, that is North of the Westminster Channel and Edinger Avenue. Crossing Edinger Avenue and along Bolsa Chica Street from a point in the North line of Edinger Avenue, being the West boundary of the City of Huntington Beach, Southerly 5,261.5 feet of 12" pipeline to a point in Warner Avenue. Along Warner.Avenue,South,West and North 4,018.22 feet of 127 pipeline to a point 30 . feet North.of the centerline of.Warner Avenue and of the South line of the land coiveyed by Southern California Edison Company to Pacific Terminals LLC by a Grant Deed dated July 28, 2003 and recorded August 4, 2003 as'Instrument No. 2003000931977 of Official Records in the Office of the County Recorder of Orange County. Along Warner Avenue from a point 30 feet North of the centerline of Warner Avenue and of the South line of the above land conveyed to Pacific Terminals LLC, South and West 328.8 feet of 12" pipeline to the Northwesterly right of way line of the East Garden Grove Wintersburg Channel. Along Warner Avenue from a point on the Southeasterly right of way line of the East Garden Grove Wintersburg Channel West 3,408.49 feet of 12". pipeline to a point in Edwards Street: Along Edwards Street, South 5,289.12 feet of 12" pipeline to a point in the North line of Section 34, Township 5 South, Range 11 West, in the Rancho La Bolsa Chica, also being the centerline of Central Park Drive, that is 12 feet East of the centerline of Edwards Street. Along Edwards Street from a point in the centerline of Edwards Street that is 6.05 feet North of the center of Section 34, Township 5 South, Range 11 West, in the Rancho La Bolsa Chica, also being the intersection of the centerlines of Ellis Avenue and Edwards Street, South and Southeasterly 2,640.03 feet of 12" pipeline to a point in Garfield Avenue. 1 ` T Along Garfield Avenue, East 7;857.95 feet of 12" pipeline to the West line of Beach Boulevard, 132 feet wide,State Highway 39. .Along Garfield Avenue from a point in the East line of Beach-Boulevard, 132 feef wide, State Highway 39, East and South-2,609.73 feet of 12" pipeline to a point in Newland Street that is 20 feet South of the North line of Section 1, Township 6 South, Range 11 West, in the Rancho Las Bolsas, also being the centerline of Garfield Avenue. Along Newland Street from a point 30 feet North of the South line of Section 12, Township 6 South, Range 1 i West, in the Rancho Las Bolsas, also being the centerline of Atlanta Avenue, Southwesterly, South and East 4,131.84 feet of 12" pipeline to a point in the East line of Newland Street that is South of the Huntington Beach Channel. Along Newland Street from a point in the West line of Newland Street that is 35 feet North of the Westerly prolongation of the centerline of Hamilton Avenue, East, South and East 1,462.75 feet of 20" pipeline to a point in the East line of Newland Street that is .South of the Huntington Beach Channel. CROSSINGS OF PUBLIC STREETS Street Length of crossing . Size of pipe Adams Avenue 40 feet 12" Indianapolis Avenue 40 feet 12" OVERALL LENGTH OF 12" PIPELINE=42,830.22 FEET. OVERALL LENGTH OF 20" PIPELINE = 1,462.75 FEET 2 Exhibit B Form of Acceptance of Franchise Date Ms. Connie Brockway, City Clerk City of Huntington Beach P.O. Box 190 2000 Main Street Huntington Beach, CA 92648 Dear Ms. Brockway: The,undersigned, as a duly-authorized officer.of Pacific Terminals LLC, hereby accepts the grant of the .oil-pipeline Franchise awarded by Ordinance No. enacted by the- Huntington . Beach City Council on By accepting this Franchise, Pacific Terminals hereby relinquishes any interest in the 1958 Franchise granted to Southern California Edison pursuant to City Ordinance No. 687. Dated: PACIFIC TERMINALS LLC, a Delaware limited liability company, _ Y. Irvin._To ole Jr. President and Chief Executive Officer g/04 ord/pacific terminals/4/8/04 22 • • Exhibit C IRREVOCABLE STANDBY LETTER OF CREDIT [name of issuing bank] Bank L/C No. Place of Issuance: . Date of Issuance: Applicant Pacific Terminals LLC Long Beach,CA Advising Bank [name] [address] [city, state, zip, country] Reference No. Beneficiary: City of Huntington Beach 2000Main Street Huntington Beach,CA 92.648 Date and Place of Expiration: ,2024 at Huntington Beach,CA Amount: $20,000 Sir or Madam: At the request of Pacific Terminals LLC, , Long Beach, CA , we hereby establish our Irrevocable Letter of Credit in your favor up to an aggregate amount of Twenty Thousand U.S. DOLLARS ($20,000), to expire at our counters on ,2024. This letter of credit is available for payment against your draft(s)at sight drawn on [name of issuing bank], accompanied by this original Standby Letter of Credit and the following documents: A letter from the Director of Public Works of the City of Huntington Beach certifying that Applicant has failed to perform as required under the Franchise Ordinance No. Between the City of Huntington Beach and Pacific Terminals LLC. We agree with you that all draft(s) drawn under and in compliance with this letter of credit will be honored on presentation to us as specified in this letter. g/04 ord/pacific terminals/4/8/04 23 • • This credit is subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500. The number and the date of the credit and the name of our bank must be quoted on all drafts required. Please examine this instrument carefully. If you are unable to comply with the terms or conditions, please communicate with your buyer to arrange for an amendment. This procedure will facilitate prompt handling when documents are.presented. [signature] Authorized signature [signature] Authorized countersignature g/04 ord/pacific terminals/4/8/04 24 EXHIBIT B EXHIBIT B CITY OF HUNTINGTON BEACH AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH GRANTING AN OIL PIPELINE FRANCHISE TO.PACIFIC TERMINALS LLC NOTICE OF PUBLIC HEARING Notice is hereby given that on May 3, 2004, 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 an Oil Pipeline Franchise to Pacific Terminals, LLC." Pursuant to the provisions of Chapter 3.56 of the Municipal Code of the City of Huntington Beach and, the Franchise Act of 1937, as codified in Public Utilities Code Sections 6201, et seq, the City Council of the City of Huntington Beach hereby gives notice as follows: On Monday, June 7, 2004, at 7:00 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 the following "ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH GRANTING AN OIL PIPELINE TO. PACIFIC TERMINALS LLC."_.If adopted, this ordinance _will. ant Pacific Terminals :ari oil i eline_franchise -that will terminate.in f fteen 15 ears & _PiP ( ).Y . unless "otherwise extended pursuant to the terms of the ordinance and provides that:-Pacific Terminals and its successors and assigns will, during the life of the franchise, pay to the City.of Huntington Beach an annual fee consistent with Section 6231.5 of the California Public Utilities Code, as amended from time to time, and that, in the event such payment is not made, the franchise will 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 Linda Daily, Department of Public Works (714) 536-5599. 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 7:00.p.m: on June 7,2004. Dated: /s/Connie Brockway City Clerk, City of Huntington Beach A-1 RCA ROUTING SHEET INITIATING DEPARTMENT: Public Works SUBJECT: Adopt A Resolution of Intention to Grant an Oil Pipeline Franchise to Pacific Terminals, LLC. COUNCIL MEETING DATE: May 3, 2004 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable 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 Attorney) Not Applicable Subleases, Third Party Agreements, etc. Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, 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 Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FOR DED Administrative Staff ( ) ( ) Assistant City Administrator Initial ) ( ) City Administrator Initial rCity Clerk ( ) EXPLANATION FOR RETURN OF ITEM: Only)(Below Space For City Clerk's Use RCA Author: LM/LD i i PACIFIC TERMINALS LLC o 5900 Cherry Avenue Long Beach, California 90805 __ N o�..,- (562) 728-2800 A o_ Y T" C-1 n DATE: April 27, 2004 — D' TO: City Clerk I City of Huntington Beach P.O. Box 190 Huntington Beach, CA 92648 f- RE: Pipeline Franchise Ordinance No. 687 2003 Statement of Franchise Fee The pipeline authorized by Ordinance No. 687 was idle for the entire year of 2003. Verification I, Debra J. Moudy, Manager, Rights of Way and Claims of Pacific Terminals LLC verify that to the best of my knowledge and belief, the above Statement of Franchise Fee is true and correct. f i Debra J. Moudy Manager, Rights of Way d Claims s � Esparza, Patty i From: Mulvihill, Leonie Sent: Monday, May 10, 2004 9:40 AM To: Esparza, Patty Cc: Daily, Linda Subject: RE: Notice of Public Hearing CThe pipeline goes from one point in the City to another and there is no requirement thabwe notice people`loo cated,°within a certain distance`of the pipeline The;requirement is publication. However;-separate and apart from this particular___ f _ �� 1 transaction,the"Clerk's office may receive generalrequests for.notice that`ought�;to beksatisfied:" _. _ _ _ r LM -----Original Message----- From: Esparza,Patty Sent: Monday, May 10,2004 9:09 AM To: Mulvihill,Leonie Subject: RE: Notice of Public Hearing Yes-this is for the Pacific Terminals Public Hearing 6/7 (sorry I didn't clarify since we have so many going on right now). Normally, the City Clerk's does the publishing and we mail out the notices of the public hearing from the labels we receive from the department handling the item -we don't have the specifics on how it is determined who receives the notices (within a certain distance from the item?). On a very few items (like Weed Abatement)there was no mailing- but the vast majority does require a mailing -just needed to get clarified for this item. Thanks. Patty X5260 -----Original Message----- From: Mulvihill,Leonie Sent: Monday,May 10,2004 8:37 AM To: Esparza, Patty; Daily,Linda Subject: RE: Notice of Public Hearing I'm not entirely clear on the issue of mailing labels as I have never provided them before. Is this for Pacific Terminals?? If so, we just need to publish in the paper unless the City Clerk has a list of persons who have previousaly requested notice. I'm not aware that anyone has so requested. Linda, are you aware of any special requests for notice? Leonie -----Original Message----- From: Esparza,Patty i Sent: Thursday, May 06,2004 10:36 AM To: Mulvihill,Leonie Subject: Notice of Public Hearing Hi Leonie- Do you know when we will be getting the mailing labels for the public hearing? Will they becoming from City Attorney's Office? Thanks, Patty Ii i 1 i