Loading...
HomeMy WebLinkAbout6/27/2007 - STAFF REPORTS - 5.A. ���PALM Sp? ti 2 c u' m Cq /FORN,P^ CITY COUNCIL STAFF REPORT DATE: JUNE 27, 2007 NEW BUSINESS SUBJECT: APPROVAL OF AN ENCROACHMENT LICENSE TO DILLON WIND PROJECT, LLC, FOR A PRIVATE HIGH-VOLTAGE ELECTRIC SYSTEM WITHIN THE RIGHT-OF-WAY OF DIABLO ROAD, DILLON ROAD, AND MELISSA LANE IN SECTION 9, T3S, R5E FROM: David H. Ready, City Manager BY: Public Works and Engineering Department SUMMARY In accordance with Chapter 14.16 of the Palm Springs Municipal Code, a permit is required for any encroachment within the City's public right-of-way. The Director of Public Works is authorized to issue encroachment permits to authorized parties to install encroachments within public right-of-way; however, installation of permanent encroachments of a type or use determined by the Director of Public Works to require additional liability protection for the City requires approval of a formal agreement, known as an Encroachment License, by the City Council. Approval of the Encroachment License to Dillon Wind Project, LLC, an Oregon Limited Liability Company, will allow installation of approximately 3,700 linear feet of underground 34,5 kV direct burial high voltage conductors within public right-of-way of Diablo Road, Dillon Road, and Melissa Lane. These streets are located in Section 9, T3S, R5E, south of Dillon Road, north of I- 10, east of Highway 62, and west of Indian Avenue. RECOMMENDATION: 1) Adapt Resolution No. "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA CONDITIONALLY APPROVING AGREEMENT NO. AN ENCROACHMENT LICENSE ISSUED TO DILLON WIND PROJECT, LLC, AN OREGON LIMITED LIABILITY COMPANY, FOR INSTALLATION OF APPROXIMATELY 3,700 LINEAR FEET OF 34.5 KV UNDERGROUND DIRECT BURIAL HIGH VOLTAGE CONDUCTORS WITHIN THE PUBLIC RIGHT-OF-WAY OF DIABLO ROAD, DILLON ROAD, AND MELISSA LANE, LOCATED IN SECTION 9, T3S, R5E." ITEM NO. City Council Staff Report June 27, 2007--Page 2 Dillon Wind Project LLC, Encroachment License STAFF ANALYSIS: Brian Walsh, a Property Agent with PPM Energy, an Oregon Corporation and partner in Dillon Wind Project, LLC, an Oregon Limited Liability Company, applied with the Public Works and Engineering Department for an Encroachment Permit for installation of approximately 3,700 linear feet of underground 34.5 kV direct burial high voltage conductors within public right-of-way of Diablo Road, Dillon Road, and Melissa Lane_ These streets are located in Section 9, T3S, RSE, south of Dillon Road, north of 1-10, east of Highway 62, and west of Indian Avenue. See Attachment 1 for the applicant's letter requesting an Encroachment Permit. On May 23, 2007, Dillon Wind Project, LLC, received Planning Commission approval of a Conditional Use Permit (Case No. 5.1115 CUP and 6.493 VAR) to construct five 1- megawatt wind energy conversion systems (WECS) on the property identified by Assessor's Parcel Number (APN) 668-400-007, with associated access road and other improvements located on APN 668-280-005 and 660-320-021. See Attachment 2 for an overall map identifying the entire WECS project and the location of the portion within Palm Springs. When constructed, the energy created by the WECS will be fed to a private underground electrical system and delivered to Southern California Edison (SCE) through an electric substation. Although the applicant has attempted to obtain private easements across adjacent property to have the most direct route from the WECS to the electric substation, efforts to obtain private easements have been unsuccessful, according to the applicant. Therefore, the applicant has requested that the City issue an Encroachment License for installation of a private high-voltage underground electrical system within public rights-of-way. The applicant requests authorization for an encroachment, 14 feet wide, extending approximately 3,700 linear feet from the applicant's leased property (owned by SCE) identified by APN 668-280-005 to Dillon Road, and in Diablo Road from Dillon Road to a new WECS electric substation to be constructed on the applicant's leased property (owned by Wintec Energy) identified by APN 668-260-055 (within unincorporated Riverside County). The encroachment area includes a portion of Melissa Lane and Tiffany Way, extending from Tiffany Way to Dillon Road. The easterly 30 feet of Melissa Lane and the northerly 30 feet of Tiffany Way were previously offered for dedication to Riverside County in 1978 by an offer of dedication stated on Parcel Map 11456; however, Riverside County did not accept the offers of dedication. It may be possible for the City Council to accept these offers of dedication. The City Engineer and City Attorney are reviewing state law to determine whether the offers of dedication remain valid for acceptance by the City. In the event the City Attorney determines that the offers of dedication have terminated, and unless an alternative alignment for the encroachment area is identified by the applicant, one of the requirements of the City Council's approval of this Encroachment License is dedication to the City of the easterly 30 feet of Melissa Lane between Tiffany Way and Dillon Road, and a portion of Tiffany Way. Otherwise, staff will bring to City Council a separate action accepting the previous offers of dedication to the public made on Parcel Map 11456. City Council Staff Report June 27, 2007-- Page 3 Dillon Wind Project LLC, Encroachment License The type of facility to be installed within public right-of-way through this Encroachment License has the potential to cause harm to the general public, given the high-voltage nature of the underground electrical system. The draft Encroachment License (see Attachment 3) requires the applicant to obtain membership with Underground Service Alert (USA/Dig Alert) to ensure that the applicant is notified of all future planned excavations or improvements within the encroachment area. Membership in USA/Dig Alert mandates that the applicant appropriately identify and mark on the ground the location of its private high-voltage underground electrical system. Provisions included in the Encroachment License also require indemnification and protection for the City against all liability; and, that the applicant procure and maintain, at its sole cost and expense, public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from the applicant's use of the encroachment area identified in the Encroachment License. The applicant has requested the City Council's approval of the Encroachment License prior to several issues being resolved between the applicant and staff. Therefore, staff recommends that the City Council's approval be conditional, for a term of six (6) months until December 27, 2007, after which the approval shall be automatically rescinded and the Encroachment License denied. The issues that remain to be resolved associated with the Encroachment License are: 1. City Attorney review and approval of the Encroachment License; 2. Applicant's final determination of the alignment for its encroachment; 3. Dedication to the City of the easterly 30 feet of right-of-way for Melissa Lane from Tiffany Way to Dillon Road, and a portion of Tiffany Way as required by the City Engineer (if the existing offers of dedication have terminated and are unavailable for acceptance by the City); 4. City Engineer review and approval of legal descriptions and exhibits associated with the Encroachment License; 5. Evidence of applicant's membership in USA/Dig Alert for the purposes of the proposed Encroachment License; 6. Approval by the California Public Utilities Commission, pursuant to California Public Utilities Code 851, authorizing Southern California Edison (SCE) to lease SCE property to the applicant for installation and operation of applicant's private high- voltage underground electrical system within right-of-way for existing SCE transmission lines; and 7. Submittal to, and approval by the City, of all certificates of insurance and endorsements, including additional insured endorsements, effecting all of the insurance coverage required by the Encroachment License. Staff recommends that the City Council authorize the City Engineer to issue an Encroachment License to the applicant, Dillon Wind Project, LLC, pursuant to the applicant's resolution of the items identified above. In the event the applicant is unable to resolve all of the issues identified above by December 27, 2007, staff recommends that City Council's authorization be automatically rescinded, and the Encroachment License denied. The applicant may request the City extend the City Council's conditional approval, which would require subsequent approval by the City Council. c f.)n? City Council Staff Report June 27, 2007—Page 4 Dillon Wind Project LLC, Encroachment License FISCAL IMPACT: None. David J. Barakian Thomas J. Wils Directory of Public Works/ City Engineer Assistant City �anager David N. Read I Hager Attachments: 1_ Applicant's Request Letter 2. WECS Project Map and Encroachment Area 3. Draft Encroachment License 4. Resolution ,P ,y ATTACHMENT APPLICANT'S REQUEST LETTER ,L 4 Dillon Wind Project LLC An Oregon limited liability compatry c/o PPM Energy 1125 NW Couch, Suite 700 Attn:Brian Walsh Portland,OR 97209 Tel: (503)796-6928 May 15,2007 City of Palm Springs Atlas:Felipe Primers 3200 E.Tahquitz Canyon Way Patin Springs, California 92263-2743 RE: Application for.Encroachment Permit/License Dear Felipe/City of Palm Springs; PPM Energy, an Oregon Corporation is building a word farm in North Palm Springs under tho Limited Liability Corporation of Dillon Wind LLC. We arc building a 45 Megawatt wind farm to produce power to serve the Southern California residents and businesses. PPM's wind farm will be build on three separate parcels owned by Southern California Edison and underground collections system will connect them to a substation located on a e parcel. (see attached"Site Map"), Why are we asking for an encroachment license? We are asking for the City of Palm Springs for encroachment permit to help assist in getting our collection lines back to the substation. We have had an extremely hard time locating adjacent land owners in order to get private easements to cross their land. Likewise we have approached land owners to gel offers of dedication if they were not wiling to let us cross their land. Specifically, we have tried for months to get David Buck to grant us an easement. We have had little to no communication with hum over tine past year. The few times we have spoken with Mr. Buck he has expressed his disinterest in granting us an easement as be does not want to encumber his property with another easement. fie believes it will devalue is property. When we finally came to a settlement amount, Mr. Buck asked for an amount 6 times the Market value. It is an amount we cannot afford to pay. Second, Mr. Buck's property is encumbered by an exclusive easement to Wind Power Partner 93' or Florida Power Light& Electric. They, too, have been reluctant to grant us consent for any easement on Mr. Buck's property. We have not been able to talk with Mr. Buck as of recent. Additionally we have tried to contact land owners to the South (Chem Quest) mid the East (Klee Morita) We have never received any response from either to dale. The land owner to on west side of Oasis Ave ('Rosenthal) has a cloud on their title and the principle land owner has not responded to calls or mail correspondence. Encroachment Route The proposed encroachment area will allow us to go around Mr. Buck's property using road ROW already dedicated to the City of Palm Springs. By using a portion of Melissa Lane from our leased SCE land(Area 5)to Dillon Rd. and a section from Dillon Rd down Oasis Ave,we can complete our circuits back to the substation. (see attached"Proposed Collector Route") How we plan to install underground cable The attached file(DIL-E-520-01-RA pol) is the 34 5kV Trenching Details we required for I•IV underground cable installation. PPM adopts all local,state and federal code compliances as mandated by governing agencies to protect the public from interdentally coming in contact with energized power circuits Reference compliance documents, Electrical Codes, (e.g.National Electrical Safely Code(NESC) and the National Electrical Code(NEC) as to help insure the personal and/or property come in contact from electrical circuits The text below should help you understand that first,and foremost, the installation conforms to all code requirements to protect the the public and insure a save an operable installation. Installation Scope: The Contractor shall perform all trenching required to install the power, communication and grounding cables as shown in the drawings,(e.g. DIL-E-520-01-RA..pdf) The details concerning depth,backfill and arrangements are shown in the drawings an Construction Specifications sections referenced below. 2.9 Backfill using Select Native Material. 2.9.1 The bedding and padding backfill material for the trench shall be excavated soil free of rocks(no rocks larger than what would pass through a number 4 screen) and free of wood,roots, vegetable matter, or other deleterious material. Four to six inches of bedding material shall be placed into the trench before the 34.5kV power cables are placed in the trench. The cable depth when laid on the bedding material shall be approximately 42 inches below the finished grade. 2,9.2 Twelve to eighteen inches of padding shall cover the cables and be compacted to approximately 12 inches to no less than 90 percent maximum of insitu maximum wet density as taken at a site approximately 5 feet away from trench compaction test location,or 115 pcf. 2.9.3 The fiber optic cable shall then be laid on top of the padding material. The Contractor shall then backfill the trench to approximately 18 inches below the finished grade and compacted to eliminate voids. 2.9.4 An OSHA approved warning tape shall be laid on the compacted level 18 inches below finished grade. The remaining 18 inches of the trench shall then be backfilled over the warning tape. Final backfill material shall be compacted to eliminate voids with additional backfill added to allow for settling. 2.10 Fluidized Thermal Backfill (FTB) Where specified on the drawings,a fluidized thermal backfill (FTB)shall be installed in lieu of the above padding. 2.10.1 FTB is a material engineered to meet specific thermal resistivity,thermal stability, strength, and flow criteria. 2.10.2 FTB is a concrete-like backfill consisting of medium stone aggregate,sand, a small amount of cement for strength,and fly ash to enhance flow. The proportions shall be chosen to reduce thermal resistivity,and maximize flow without segregation of the components. The mix shall flow readily to fill all Cho voids and harden quickly to a uniform density. Hardened FTB shall result in negligible settlement,offer adequate mechanical protection for the cables and/or conduits and provide support for underground and surface facilities. 2.10.3 FTB shall be supplied in ready-mix in concrete trucks and may be installed by pouring or pumping,and does not require specific shoring or bulkhcading. FTB shall solidify quickly so that the ground surface may be reinstated the next day. The hardened FTB shall be low strength to allow easy removal if the conduits must be accessed in the future. We greatly appreciate the City of Palm Springs cooperation in helping us resolve our problem. We realize encroachments within the public [tight of Way are normally not granted to private utilities,but know this is not breaking precedent. The City has previously granted an encroachment License to the Auga Caliente Band of Cahuilla Indians on November 22,2005. The power generated by the wind farm will be purchased by Southern California Edison, a public utility. Tax revenue from the wind farm will benefit the residents and businesses of the City of Palm Springs. Thank you for your consideration of our application. If you have any questions,please feel free to reach me any time. Sincerely, Brian Walsh PPM Enorgy Property Agent (503) 796-6928 (503)789-0846 cell -1 Lam ED ED iLr s ___ • .: N1� a fo1 T— r1���VQ RYiI!LL��,ryr �L4f - L�tVTI W R m.��ertn n o.VNL'.fsvv ro z�sxns n•[ 3r crcdrv=.no. vsxvs w. ;e. crcy wx v use-rpu =ox�I n• i1de9i FPM�nef�r s.r�r.'ry I ,n�.�n -1 EC7 Y. Y -V:CADI ^ ry wr Cr_CE�LM 5+'4=u ..A3LE5 EU � �8 � � TP.C�CH DETAILS ' p� ASmltisSpoxer CnRpany g��e rt ATTACHMENT WECS PROJECT MAP AND ENCROACHMENT AREA +� Site Control Map TFPIDillon Wl nd Project I I � ,_ _ _ 1��� - _ - ' i;t�•i Pi'M Energy �I I I I• _ - - Legend Proposed Undergrewd U.5-kV Alternate Undmgmund 34.&kV Wecmr Route Site Bamdary Lease Stalus i d Leased-Onion I C] Non-BxvelopmenLLease-Btl[on E] Leasetl-N.mnt�n mew 111 Na Lease l 7i7* �+ .. .. . � I I N it H s IN ivT a e 750 1,500 2,250 3p00 j Feet �i �loo ATTACHMENT DRAFT ENCROACHMENT LICENSE FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF PALM SPRINGS P.O. Box 2743 Palm Springs, California 92263-2743 Attn: City Clerk and Public Works and Engineering Filing Fee Exempt Per Government Code 6103 (For Recorder's Use Only) ENCROACHMENT LICENSE (ALL PROPERTIES OTHER THAN INDIVIDUAL RESIDENTIAL PROPERTIES) THIS ENCROACHMENT LICENSE (the "License") is entered into this day of 2007, by and between Dillon Wind Project LLC, an Oregon Limited Liability Company, ("Licensee") and the CITY OF PALM SPRINGS, a California charter city ("City"). RECITALS: A. Licensee is the Lessee of that certain real property located in the City of Palm Springs, County of Riverside, State of California identified by Assessor's Parcel Number (APN) 668-260-005, by that certain Land Lease dated XXX, recorded as Document No. XXX, on XXX, records of Riverside County, attached hereto as Exhibit"A"and incorporated herein by reference ("Licensee Property"). B. City is the owner of certain fee and/or easement interests in that certain real property located in the City of Palm Springs, County of Riverside, State of California adjacent to the Applicant Property and more particularly described and shown on Exhibit "B" ("City Property"). C. Licensee desires to construct approximately 3,700 linear feet of underground direct burial high voltage conductors in a slurry trench backfill, hereinafter referred to as "Encroachment", which will encroach on the City property in the location described and shown on Exhibit"C", attached hereto and incorporated herein by reference (the "Encroachment Area"). D. City has agreed to grant to Licensee an encroachment permit ("Permit") for the Encroachment in accordance with Chapter 14.16 of the City of Palm Springs Municipal Code on the condition that Licensee executes this License- 1 NOW THEREFORE, the parties hereto agree as follows: 1.0 License. The City hereby grants a License to Licensee to construct the Encroachment within the Encroachment Area upon all of the terms and conditions of the Permit and this License. 2.0 Commencement of Construction. Licensee shall commence the construction of the Encroachment within a reasonable amount of time, in no event to exceed ninety(90)days following the execution date of this License. Before beginning any physical work on the Encroachment, Licensee shall notify City that construction of Encroachment will be commenced, at least twenty-four(24) hours prior to commencement of such work. Licensee shall also notify the City upon completion of the Encroachment. 3.0 Construction of Encroachment. Any structure placed pursuant to this License shall be constructed in a careful and workmanlike manner and in accordance with plans and specifications to be submitted to and approved by the City of Palm Springs Department of Public Works and Engineer and Department of Building and Safety, before Licensee commences construction of Encroachment within the Encroachment Area, or commences construction of any work on Licensee Property. 4.0 Maintenance. Licensee shall have the right and obligation to maintain, repair and replace, at its own cost and expense, the Encroachment so as to keep the Encroachment Area in a neat, clean, first class condition and in good order and repair,free of trash and debris at all times. As the Encroachment Area consists of public street rights- of-way, the Licensee shall ensure that any excavations,trenches, and backfill and repaving of trenches excavated by Licensee for the Encroachment are maintained as required by the City, in accordance with applicable City standards or as directed by the City Engineer. Licensee hereby agrees to perform such additional repairs and/or maintenance work in the Encroachment Area within fifteen (15) days notice from City. Licensee shall have access across the City Property at all times while the License is in effect solely for the purposes as noted in Section 3. In the event that Licensee does not maintain the Encroachment as required herein, the City will have the option to either (i) terminate the License as more particularly provided in Section 7 or, (ii) after giving Licensee reasonable notice, to make such repairs or perform such maintenance as is required. If City performs the required repairs and/or maintenance, City shall submit an invoice to Licensee for payment of the repairs and/or maintenance work performed by City, including administrative fees, and Licensee shall pay such invoice received within thirty (30) days for such work performed. Failure to pay any invoice submitted to Licensee by City within thirty(30) days notice from City shall automatically terminate the License herein granted. 4.1 Construction by Others within Encroachment Area. Licensee hereby acknowledges that the License herein granted by City is non-exclusive, and that.City may grant subsequent encroachments within the Encroachment Area to other parties, including public utility companies, other governmental agencies, and private parties. Licensee 2 hereby agrees to join and maintain membership with United Service Alert of Southern California (Dig Alert) for the entire term of this License, or until the Encroachment is removed, whichever occurs first. Licensee shall be required, pursuant to this provision of the License granted by City, to monitor notifications from USA/Dig Alert(1-800-227-2600) of excavations or other work within the Encroachment Area by public agencies or private parties that may directly affect Licensee's Encroachment. It shall be the Licensee's sole responsibility to adequately mark, identify, and locate its Encroachment within the Encroachment Area for any and all public agencies or private parties who have duly notified USA/Dig Alert of excavations or other work within the Encroachment Area. Failure of Licensee to timely and/or correctly mark, identify, and locate its Encroachment within the Encroachment Area shall be the responsibility of the Licensee. Licensee shall indemnify, hold harmless, and release City from all damages of any kind, due to damages incurred to its Encroachment within the Encroachment Area, including complete loss of the use and/or value of the Encroachment due to excavations or other work within the Encroachment Area by public utility companies, other governmental agencies, and private parties, including the City, who have duly notified USA/Dig Alert of their intention to excavate or perform other work within the Encroachment Area. Licensee acknowledges that this provision of the License granted by City releases City of any financial or other obligations to maintain the Encroachment within the Encroachment Area, and that Licensee shall be solely responsible for ensuring that its Encroachment is adequately protected for the entire term of this License. Licensee further acknowledges its Encroachment consists of a privately owned, underground, high-voltage electrical system, and its responsibility to ensure the Encroachment is identified and appropriately marked within the Encroachment Area to ensure future work within the Encroachment area does not result in injury or loss of life_ Licensee hereby indemnifies the City from any and all liability, in accordance with Section 6 of this License, for any injuries or loss of life resulting from Licensee's failure to comply with the requirements of maintaining the Encroachment and ensuring its identification within the Encroachment Area through membership in USA/Dig Alert. 4.2 Relocation of Encroachment within City Right-of-Way. In the event of a conflict with an underground utility proposed by any public agency or private party whose proposed utility is approved for installation by City within the Encroachment Area, Licensee hereby agrees to relocate the Encroachment, at Licensee's sole expense, as necessary to remove any such conflict with an underground utility proposed by any public agency or private party. Licensee shall prepare relocation plans for the Encroachment and submit to the City Engineer, as well as the affected public agency or private party, for review and comment within thirty (30) days notice from City of the underground utility conflict. Licensee shall relocate the Encroachment, as directed bythe City, pursuant to Sections 2, 3, and 5 of this License, except, however, that relocation of the Encroachment, as approved by City, shall commence no later than thirty (30) days approval of relocation plans for the Encroachment by City. 3 5.0 Installation and Maintenance of Safety Provisions. Licensee shall, in connection with the construction and maintenance of the Encroachment, provide, install, and maintain such lights, barriers, warning signs or other safety provisions as are reasonably necessary to protect anyone utilizing the City Property for whatever reason. In the event that the City determines that suitable safety provisions are not being provided by Licensee, the City may, aftertwo (2)days notice from City to Licensee, provide, install and maintain such safety provisions. If the City provides the safety provisions pursuant to this Section 5, City shall submit an invoice to Licensee for payment of the safety provisions installed by City, including administrative fees, and Licensee shall pay such invoice received within thirty (30) days for such work performed. Failure to pay any invoice submitted to Licensee by City within thirty (30) days shall automatically terminate the License herein granted.. 6.0 Indemnity. Licensee hereby agrees to indemnify and defend the City, its officers, agents and employees against and to hold and save each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (collectively "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the location, construction, maintenance, relocation or removal of the Encroachment, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to City, and in connection therewith: (a) Licensee will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Licensee will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities and Licensee agrees to save and hold the City, its officers, agents and employees harmless there from; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Licensee for such damages or other claims arising out of the location, construction, maintenance, relocation or removal of the Encroachment, Licensee agrees to pay the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including, but not limited to, legal costs and attorneys fees. 7.0 Covenants Running With the Land. The covenants and restrictions by Licensee set forth in this License: (a) are made for the direct benefit of the City Property; (b) will constitute covenants running with the land and equitable servitudes; (c) will bind Licensee and every person having any fee, leasehold or other interest in any portion of the Licensee Property at any time or from time to time; and (d) will inure to the benefit of the 4 City and every person having any fee, leasehold or other interest in the City Property at any time or from time to time. 8.0 Insurance. Licensee shall procure and maintain, at its sole cost and expense, and submit concurrently with its execution of this License, in a form and content satisfactory to City, public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Licensee's use of the Encroachment within the Encroachment Area under this License. Insurance shall be kept in full force and effect during the term of this License, and shall not be cancelable without thirty (30) days written notice to City of any proposed cancellation. Certificates of Insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to City's approval of this License. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Licensee's obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. 8.1 Minimum Scope of Insurance. The minimum amount of insurance required hereunder shall be as follows: 1. Comprehensive general liability and personal injury with limits of at least One Million Dollars ($1,000,000) combined single limit coverage per occurrence. For any claims related to this License, Licensee's insurance coverage shall be primary insurance as respects City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Licensee's insurance and shall not contribute with it. 8.2 Sufficiency of Insurers. Insurance required herein shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VIII, or better, unless otherwise acceptable to the City. 8.3 Verification of Coverage. Licensee shall furnish Citywith both certificates of insurance and endorsements, including additional insured endorsements, effecting all of the coverages required by this License. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before approval of this License. City reserves the right to require Licensee's insurers to provide complete, certified copies of all required insurance policies at any time. Verification of Insurance Coverage may be provided by: (1) an approved General Endorsement Form for the City of Palm Springs or(2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following 5 endorsements stated on the certificate: 1. "The City of Palm Springs, its officials, employees and agents are named as an additional insured" ("as respects Encroachment License No. 07-03" may be included in this statement). 2. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have" ("as respects Encroachment License No. 07-03" may be included in this statement). 3. "Should any of the above described policies be cancelled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. See example below. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policy. All certificates and endorsements are to be received and approved by the City before this License is approved. Cancellation Example: SHOULD ANY OF THE ABOVE REFERENCED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL €NBE-AV-Q{ MAIL 30 DAYS* WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN BUT R41L-U.RE TO MAIL SUG1 n GT GE--&H i i in�nonoco= NO— IBL-IC,A-TION OR LIABILITY ITY CO nN KIND UPON TWC INNSUREa ITS AGENTS no oCoRESIM TATWF—S-. "The broker/agent can include a qualifier stating "10 days notice for nonpayment of premium." 8.4 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected officials, officers, employees, agents, and volunteers; or, Licensee shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 8.5 Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with 6 cr"l respect to the limits of the insurer's liability. 8.6 Insurance Increase. Not more frequently than one (1)time every three (3) years, if, in the opinion of the City, the amount of public liability and property damage insurance coverage at that time is not adequate, the City may require modifications to the required insurance coverage in this Section 8. City shall notify Licensee, and Licensee hereby agrees to provide City with certificates and endorsements evidencing City's required increased insurance coverage amounts within thirty(30) notice from City. Failure of Licensee to provide City with certificates and endorsements evidencing City's required increased insurance coverage amounts within thirty(30)days shall automatically terminate the License herein granted. 9.0 Termination. The License is terminable with or without cause by City at any time. Licensee shall remove the Encroachment and restore the Encroachment Area on the City Property to its former condition, at Licensee's sole cost and expense, within thirty(30) days notice from City. In the event Licensee fails to remove the Encroachment and restore the Encroachment Area on the City Property within thirty (30) days notice from City, City shall have the right to do so without notice to Licensee. Licensee shall immediately reimburse the City for all expenses incurred by City in the removal of the Encroachment and restoration of the Encroachment Area on the City Property. Said amounts shall accrue interest from the date the expenses were incurred by City at the maximum non-usurious interest rate permitted by law. 10.0 Notices. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to be given under the provisions of this License shall be in writing and either served personally or sent prepaid, first-class mail to the following address: To City: City of Palm Springs PO Box 2743 Palm Springs, CA 92263-2743 Attn: Public Works and Engineering Department With Copy to: City Attorney, City of Palm Springs PO Box 2743 Palm Springs, CA 92263-2743 Attn: Douglas Holland Licensee: Dillon Wind Project LLC 1125 NW Couch, Suite 700 Portland, OR 97209 Attn: Mark Beutler 7 Either party may change its address from time to time by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed pursuant to this Section 10. 11.0 Attorneys Fees. In any action between the parties hereto seeking enforcement of this License, or in connection with the License or the Permit, the prevailing party in such action shall be entitled to have and to recover from the other party its reasonable attorneys'fees and other reasonable expenses in connection with such action or proceeding in addition to its recoverable court costs. 12.0 Successors and Assigns. All rights and obligations created by this License shall be appurtenant to and shall run with the Licensee Property and the City Property and each part thereof and interest thereon, and shall be binding upon the owners of the Licensee Property and its respective successors and assigns acquiring any right, title and interest in the Licensee Property. 13.0 Amendment or Modification. This License may not be modified or amended except by written agreement executed by the then-owner of the Licensee Property and the City Property and recorded in the Office of the County Recorder, County of Riverside, California. 14.0 Governing Law. This License shall be governed by and construed in accordance with the laws of the State of California. 15.0 Severability. The invalidity or unenforceability of any provision of this License with respect to a particular party or set of circumstances shall not in anyway affect the validity and enforceability of any other provision hereof or the same provision when applied to another party or to a different set of circumstances. 16.0 Recordation. This License shall be recorded in the Office of the County Recorder, Riverside County, California, and it shall serve as notice to all parties succeeding to the interest of Licensee or City that their use of the Licensee Property and the City Property shall be benefited and/or restricted in the manner herein described. 17.0 Counterparts. This License may be executed in any number of counter parts, each of which shall constitute an Original- 8 i^l!11'a IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. "LICENSEE" DILLON WIND PROJECT, LLC, an Oregon Limited Liability Company By: By: Signature Signature Printed Name and Title Printed Name and Title (Licensee shall have signature notarized) ATTEST: CITY OF PALM SPRINGS, a California charter city By: By: City Clerk City Manager APPROVED AS TO FORM: City Attorney APPROVED BY CITY COUNCIL: Resolution No. Date: Agreement No.: 9 STATE OF ) SS. COUNTY OF ) On before me, 'Notary Public, date personally appeared ❑ personally known to me OR ❑ proved to me on the basis of satisfactory evidence to be the persons(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 persons(s) acted, executed the instrument. Witness my hand and official seal. Signature of Notary STATE OF ) SS. COUNTY OF ) On before me, date personally appeared ❑ personally known to me OR Fl proved to me on the basis of satisfactory evidence to be the persons(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 persons(s) acted, executed the instrument. Witness my hand and official seal. Signature of Notary 10 EXHIBIT "A" LICENSEE PROPERTY r r U y , i' i 11 BXHIBIT "B" CITY PROPERTY F / 12 HXHIBIT "C" ENCROACHMENT AREA \ r' w ,W / 1 � 1 / 13 a dn� r \ i ATTACHMENT 4 RESOLUTION /A i i �� RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, CONDITIONALLY APPROVING AGREEMENT NO. AN ENCROACHMENT LICENSE ISSUED TO DILLON WIND PROJECT, LLC, AN OREGON LIMITED LIABILITY COMPANY, FOR INSTALLATION OF APPROXIMATELY 3,700 LINEAR FEET OF 34.5 KV UNDERGROUND DIRECT BURIAL HIGH VOLTAGE CONDUCTORS WITHIN THE PUBLIC RIGHT-OF-WAY OF DIABLO ROAD, DILLON ROAD, AND MELISSA LANE, LOCATED IN SECTION 9, T3S, R5E WHEREAS, the Planning Commission, at its meeting of May 23, 2007, approved Conditional Use Permit, Case No. 5.1115 CUP, and a related Variance, Case No. 6.493 VAR, to construct five 1-megawatt wind energy conversion systems (WECS) on the property identified by Assessor's Parcel Number (APN) 668-400-007, with associated access road and other improvements located on APN 668-280-005 and 666-320-021; and WHEREAS, the City Council, at its meeting of June 27, 2007, after considering written and public testimony related to appeals filed with the City Clerk to overrule the Planning Commission's approval of Case No. 5.1115 CUP, and 6.493 VAR, rejected the appeals and upheld the Planning Commission's approval; and WHEREAS, Dillon Wind Project LLC, an Oregon Limited Liability Company, has requested issuance of an Encroachment Permit for installation of approximately 3,700 linear feet of underground 34.5 kV direct burial high voltage conductors within public right-of-way of Diablo Road, Dillon Road, and Melissa Lane, located in Section 9, Township 3 South, Range 5 East; and WHEREAS, Chapter 14.16.040 of the Palm Springs Municipal Code requires issuance of an Encroachment Permit for any encroachment within the City's public right-of-way; and WHEREAS, Chapter 14.16.470 of the Palm Springs Municipal Code requires that the City Council consider any proposal or application by any person not already having a franchise or other effective permission to place utilities facilities or equipment within public streets or rights-of-way of the City, and to approve the issuance of a license or special permit to install such utilities facilities or equipment. THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The City Council hereby conditionally approves Agreement No. an Encroachment License issued to Dillon Wind Project, LLC, an Oregon Limited Liability Company, for installation of approximately 3,700 linear feet of 34.5 kV Resolution No. Page 2 underground direct burial high voltage conductors within public right-of-way of Diablo Road, Dillon Road, and Melissa Lane, located in Section 9, Township 3 South, Range 5 East. Section 2. Execution of Agreement No. shall be withheld by the City Manager, pending resolution of the following items to the City Manager's satisfaction. 1. City Attorney review and approval of the Encroachment License; 2. Final determination of the alignment for the encroachment area, 3. Dedication to the City of the easterly 30 feet of right-of-way for Melissa Lane from Tiffany Way to Dillon Road, and a portion of Tiffany Way as required by the City Engineer (if the existing offers of dedication have terminated and are unavailable for acceptance by the City); 5. Evidence of Dillon Wind Project LLC, membership in USA/Dig Alert for the purposes of the proposed Encroachment License; 6. Approval by the California Public Utilities Commission, pursuant to California Public Utilities Code 851, authorizing Southern California Edison (SCE) to lease SCE property to Dillon Wind Project LLC, for installation and operation of its private high- voltage underground electrical system within right-of-way for existing SCE transmission lines, and 7. Submittal to, and approval by the City, of all certificates of insurance and endorsements, including additional insured endorsements, effecting all of the insurance coverage required by the Encroachment License. No encroachment shall occur until the items identified herein this Section 2 are resolved to the City Manager's satisfaction, and Agreement No. is fully executed and recorded as herein required. Section 3. In the event the City Attorney determines that the offers of dedication made to the public on Parcel Map 11456 have terminated, the City Council hereby authorizes the City Clerk to accept any and all offers of dedication for public right-of-way required herein for Melissa Lane and Tiffany Way, or as otherwise required by the City Engineer in the issuance of the Encroachment License herein granted. Said offers of dedication shall be accepted and recorded by the City Clerk in the Office of the Riverside County Recorder. Section 4. The City Council's conditional approval of Agreement No. shall be valid for a term of six (6) months, extending until December 27, 2007, at which time the conditional approval of Agreement No. , and the Encroachment License herein granted, shall be automatically rescinded and deemed denied in the event the items identified herein above in Section 2 are not resolved to the City's satisfaction. Any extension of time of the City Council's conditional approval of Agreement No. , to resolve the items identified herein above in Section 2 shall require the City Council's approval prior to December 27, 2007. Resolution No. Page 3 ADOPTED THIS 27th day of June, 2007. David H. Ready, City Manager ATTEST: James Thompson, City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that Resolution No. is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on June 27, 2007, by the following vote: AYES: NOES: ABSENT: ABSTAIN: James Thompson, City Clerk City of Palm Springs, California