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HomeMy WebLinkAboutResolution No. 08-C061RESOLUTION NO. 08-C61 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA CONSENTING TO THE USE OF EMINENT DOMAIN, PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE, SECTION 1245.310 ET SEQ., BY COVINA IRRIGATING COMPANY TO ACQUIRE A PERMANENT 10 -FOOT WIDE EASEMENT AND RIGHT OF WAY FOR INGRESS AND EGRESS, AND TO CONSTRUCT, INSTALL, USE, INSPECT, LOCATE, MAINTAIN, OPERATE, ALTER, ADD TO, REPAIR, REPLACE, REMOVE AND/OR RELOCATE PIPELINES AND RELATED FACILITIES AND CONNECTIONS, INCLUDING THE RIGHT TO CONSTRUCT, INSTALL, MAINTAIN, AND OPERATE A 42" PIPELINE, AND THE RIGHT TO REMOVE, REPLACE, AND/OR RELOCATE ANY ABOVE -SURFACE AND SUB -SURFACE PIPELINES, IMPROVEMENTS, STRUCTURES, TREES, SHRUBS, AND ANY OTHER GROWTH THEREON, NECESSARY OR CONVENIENT FOR COVINA IRRIGATING COMPANY'S, OR ITS SUCCESSORS AND ASSIGNS, USE OF THE EASEMENT FOR WATER TRANSPORTATION AND FOR ANY AND ALL OTHER USES AND PURPOSES OF COVINA IRRIGATING COMPANY AND OF ITS SUCCESSORS AND ASSIGNS, AS WELL AS A TEMPORARY 25 -FOOT WIDE CONSTRUCTION AND INSTALLATION EASEMENT AND RIGHT OF WAY FOR INGRESS AND EGRESS TO CONSTRUCT, INSTALL, USE, INSPECT, LOCATE, MAINTAIN, OPERATE, ALTER, ADD TO, REPAII , REPLACE, REMOVE AND/OR RELOCATE SUCH PIPELINE OR PIPELINES AND FACILITIES AND CONNECTIONS, INCLUDING THE RIGHT TO OPERATE NECESSARY EQUIPMENT THEREON, THE RIGHT TO CONSTRUCT, INSTALL, MAINTAIN, AND OPERATE A 42" PIPELINE, AND THE RIGHT TO REMOVE, REPLACE, AND/OR RELOCATE ANY ABOVE -SURFACE AND SUB -SURFACE PIPELINES, IMPROVEMENTS, STRUCTURES, TREES, SHRUBS, AND ANY OTHER GROWTH THEREON, IN, UNDER, UPON, OVER, ACROSS AND THROUGH (SHADY OAK COURT AND PARKING LOT) PROPERTY OWNED BY THE CRYSTAL CANYON DEVELOPMENT HOMEOWNERS AND/OR CRYSTAL CANYON DEVELOPMENT HOME OWNERS ASSOCIATION AS DEPICTED ON THE DIAGRAM ATTACHED HERETO AS EXHIBIT "1" WHEREAS, there is an open water canal in the City of Azusa ("City) that traverses the City in a southeasterly direction; and WHEREAS, the canal has been operated by the Covina Irrigating Company ("CIC") for over 100 years and conveys supplemental potable water on a wholesale basis to a population estimated to be in excess of 100,000 consumers throughout the eastern portion of the San Gabriel Valley; and WHEREAS, CIC receives its water from the San Gabriel River which is transported through the open canal that traverses the City in a southeasterly direction from a power facility owned and operated by the City of Pasadena (the "Pasadena Powerhouse"), which is located directly across Ranch Road from a narrow private road (called Shady Oak Court) and a parking area located on the Crystal Canyon Condominium property; and 9 0 WHEREAS, CIC is in the midst of modernizing and improving its transmission delivery system, which includes the elimination of the open canal in the City; and WHEREAS, the northern section of the open canal has been a long standing health hazard in the City and poses significant health hazards and safety risks to the residents, families, and children of the community, as well as to the general public, and, as part of its modernization efforts, CIC now wishes to replace the open canal with an underground pipeline; and WHEREAS, the open canal is vulnerable to contamination from a variety of sources including wildlife, windblown trash and debris, and urban runoff, and WHEREAS, state and federal regulations and guidance have been placing increasing emphasis on source water protection as a means of ensuring the safety of drinking water, and WHEREAS, the California Department of Public Health supports CIC's plans to transport its water through an underground pipeline since the Department of Public Health finds that the replacement of the open canal with an underground pipeline will help protect public health by significantly reducing potential contamination sources; and WHEREAS, due to the open nature of the canal, the City has long been concerned with the safety risks associated with the operation of an open canal within the City's limits, especially where children are concerned; and WHEREAS, the northern section of the open canal is lined with rock, mortar, and concrete, and as a result of its age and exposure to the elements, the condition of this section of the canal has deteriorated significantly over the years resulting in water leakage in certain areas of the northern section of the open canal; and WHEREAS, as a result of urbanization of the area over the past 100 years, the northern section of the open canal is also surrounded by residential properties and other structures, making it very difficult to access this section to bring in the necessary equipment and materials required to properly maintain and repair the canal in a cost-effective and safe manner; and WHEREAS, due to the lack of access to the northern section of the open canal, enclosing this section of the open canal is technically infeasible and economically cost -prohibitive since it would be very difficult to access this section and bring in the necessary equipment and materials required to enclose the canal, and, even if enclosing the canal was feasible, such enclosure would not address the maintenance, repair, and leakage issues that currently exist in connection with the maintenance and operation of the open canal; and WHEREAS, constructing and installing a pipeline where the northern section of the open canal is situated is technically and economically infeasible for the same reason it is infeasible to enclose the open canal including lack of access; and WHEREAS, the homeowners whose homes either abut the northern section of the open canal or are located in close proximity to that segment of the canal would experience significant disruption and inconvenience for months resulting from any attempts to enclose the open canal or construct a pipeline in the current canal route, since the only way to access certain portions of the northern segment of the canal is through the backyards and side yards of these residential properties; and WHEREAS, southern portions of the open canal in the City have been re-routed as part of the implementation of the Rosedale Development Project, a master planned residential development, which has affected the routing of southern segments of the canal and changed the hydraulic requirements of CIC's transmission delivery system, and an underground pipeline has been installed to eliminate the southern portion of the open canal; and WHEREAS, the closest public road located near the northern starting point of the open canal, which begins at the Pasadena Powerhouse, is Ranch Road, formerly referred to as Azusa and San Gabriel Canyon Road; and WHEREAS, because CIC's proposed pipeline is a gravity -flow based system (a system that does not utilize pressure pumps to transport water through the line), it is not feasible to construct and install a 42" water pipeline from the Pasadena Powerhouse to Ranch Road proceeding north to intersect with San Gabriel Canyon Road since such an alignment would not achieve the necessary gravity flow required to transport water to the south; and WHEREAS, Ranch Road is a narrow street and congested with existing underground utilities including numerous pipelines and conduits for water, gas, electricity and sewer service, making it technically and economically infeasible for CIC to install in Ranch Road the 42" water pipeline needed to convey water to the south; and WHEREAS, the City's existing 8" sewer line in Ranch Road is located approximately near the centerline of Ranch Road proceeding in a southerly direction; and WHEREAS, the California Department of Public Health regulates the separation of water lines and sewer pipes, and in order to ensure that the City's sewer line is maintained and operated in a safe manner, the Department of Public Health requires, among other things, that ten horizontal feet of separation exist between the City's sewer line and other water pipelines located in Ranch Road; and WHEREAS, as a result of the current location and alignment of the City's sewer line in Ranch Road, it is technically infeasible and cost -prohibitive for CIC to construct and install a 42" pipeline in Ranch Road because CIC would have to remove and relocate existing utility pipelines and conduits located in Ranch Road and identify an alignment for its pipeline that would satisfy, if at all possible, all of the Department of Public Health's separation criteria and other requirements; and WHEREAS, Ranch Road is a two lane roadway and there are housing developments on both sides of the street, the residents of which would suffer substantial hardship and utility and access disruption for many months if CIC is forced to construct its pipeline in Ranch Road, resulting from the removal and relocation of existing utilities in that street; and WHEREAS, even if the underground pipeline could be installed safely in Ranch Road, it would necessitate the shutdown of the entire street for many months from either Sierra Madre Avenue or North San Gabriel Canyon Road, which would significantly impact and inconvenience residents of that area, as well as the general public, that use this street to travel between Sierra Madre Avenue and North San Gabriel Canyon Road; and 0 - 0 WHEREAS, it is not recommended that the proposed pipeline be constructed in the parkway located along Ranch Road because any such alignment would require, among other things, the removal and replacement of mature trees and other landscaping along the parkway, and the proposed pipeline cannot be located in an area where it would be exposed to growing tree roots since such exposure would affect CIC 's ability to properly maintain and operate its pipeline in the future; and WHEREAS, the difficulties in constructing a pipeline in Ranch Road as stated herein are the key reasons the City acquired an easement for a similar pipeline alignment from the Canyon View Homeowners located just north of the Crystal Canyon Condominium property, and the City plans to construct and install a pipeline through the Canyon View Homeowners property to connect to the City's pipeline in San Gabriel Canyon Road heading south; and WHEREAS, CIC has put forth a plan to eliminate the northern segment of the open canal and route the water underground through a 42" pipeline that will connect with the southern segment of underground pipeline, which will accomplish the City's goal of eliminating any health hazards and safety risks associated with the continued operation of the northern section of the open canal; and WHEREAS, CIC has tried to obtain a permanent easement in, under, upon, over, across and through a private street (Shady Oak Court) and parking area located on the Crystal Canyon Condominium property in order to construct and install a 42" pipeline from the Pasadena Powerhouse across Ranch Road and through Shady Oak Court and parking area, which would connect to a pipeline to be located in San Gabriel Canyon Road so that it may use this four lane road to construct and install the underground pipeline that can be routed south and maintain the necessary gravity flow to transport water to the south; and WHEREAS, the Crystal Canyon Homeowners Association and CIC have been unable to reach agreement whereby CIC would be granted an easement to use the Association's and/or Crystal Canyon Homeowners' private property to connect proposed pipelines between the Pasadena Powerhouse and San Gabriel Canyon Road to allow for replacement of the canal with the underground pipeline; and WHEREAS, the permanent easement to be acquired by eminent domain by CIC in, under, upon, over, across, and through Shady Oak Court and parking area located on the Crystal Canyon Condominium development will be ten (10) feet in width and approximately four hundred (400) feet in length, as depicted on the diagram attached hereto as Exhibit "1" and legally described on the document attached hereto as Exhibit "2" (the "Permanent Easement Area"); and WHEREAS, the permanent easement to be acquired will provide CIC with, at any time, the right to construct, install, use, inspect, locate, maintain, operate, alter, add to, repair, replace, remove, and/or relocate pipelines and related facilities and connections necessary or convenient for CIC's, and its successors and assigns, use of the easement for water transportation and for any and all other uses and purposes of CIC and of its successors and assigns, including, but not limited to, the right to remove, replace, and/or relocate any above -surface and sub -surface pipelines, improvements, structures, trees, shrubs, and any other growth thereon; and; . WHEREAS, in order to access the Permanent Easement Area to exercise its rights under the permanent easement, CIC must also be granted a permanent right of way for ingress and egress through the Crystal Canyon Condominium property; and 0 0 WHEREAS, in order to properly construct and install the proposed pipeline, it is also necessary for CIC to obtain a 25 -foot wide temporary construction and installation easement, with a temporary right of way for ingress and egress, to construct, install, use, inspect, locate, maintain, operate, alter, add to, repair, replace, remove, and/or relocate such pipeline or pipelines and facilities and*connections, including, but not limited to, the right to operate necessary equipment thereon, the right to construct, install, maintain and operate a 42" pipeline, and the right to remove, replace, and/or relocate any above - surface and sub -surface pipelines, improvements, structures, trees, shrubs, and any other growth thereon, in, under, upon, over, across and through Shady Oak Court and the parking area located on the Crystal Canyon Condominium property; and WHEREAS, the temporary easement to be acquired by. eminent domain by CIC will be approximately twenty-five (25) feet in width and approximately four hundred (400) feet in length, as depicted on the diagram attached hereto as Exhibit "1" and legally described on the document attached hereto as Exhibit "3"; and WHEREAS, the temporary easement will not be a permanent encumbrance against the Crystal Canyon Condominium property and shall expire upon completion of the construction and installation of the proposed pipeline and improvements; and WHEREAS, construction and installation of the 42" pipeline through Shady Oak Court and the parking area can be completed much sooner and with much less difficulty than (i) any proposed enclosure of the northern section of the open canal, (ii) any proposed construction of a pipeline in that segment of the open canal, or (iii) any proposed pipeline alignment in Ranch Road, resulting in less hardship to the affected Crystal Canyon residents and homeowners than to CIC or to the other residents residing in the homes located on both sides of Ranch Road and the general public if the permanent and temporary easement acquisitions over the subject property by CIC via eminent domain are not permitted; and WHEREAS, CIC is a mutual water company and quasi -public entity authorized under Section 2729 of the California Public Utilities Code and California Code of Civil Procedure Sections 1245.310 et seq., to acquire permanent and temporary easements over the proposed area by eminent domain; and WHEREAS, Section 1245.360 of the California Code of Civil Procedure requires this resolution to be adopted by a two-thirds (2/3) vote of the City Council members, or, alternatively, by at least a 4-1 vote; and WHEREAS, the adoption of this Resolution is statutorily exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15282(k) of the CEQA Guidelines and Section 21080.21 of the California Public Resources Code; and WHEREAS, Proposition 99 was a proposed amendment to the California Constitution that appeared on the June 3, 2008 statewide ballot; and WHEREAS, Proposition 99 amends Section 19 of Article I of the California Constitution, adding section 19(b) prohibiting State and local governments from "acquiring by eminent domain an owner -occupied residence for the purpose of conveying it to a private person," and also adding section 19(c) which states that section 19(b) does not apply when State or local government exercises the power of eminent domain for the purpose of, among other things, protecting public health and safety; and 0 0 WHEREAS, Proposition 99 is not applicable to the adoption of this resolution by the City Council since such adoption does not result in the acquisition by eminent domain of an owner -occupied residence "for the purpose of conveying it to a private person"; rather, the adoption of this resolution only authorizes CIC to file an eminent domain action to acquire the subject easements should it become necessary for CIC to do so, and WHEREAS, CIC is not a "private person" under Proposition 99 but instead is a California non- profit mutual water company that is considered a quasi -public entity under Code of Civil Procedure section 1245.310 et seq. and has the authority to exercise powers of eminent domain after obtaining the requisite consent by the City Council; and WHEREAS, even if Proposition 99 is applicable, the adoption of this resolution would be excluded under section 19(c) of Article I of the California Constitution since the proposed easement acquisitions are necessary for CIC's proposed pipeline project, which is designed to protect public health and safety. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DOES HEREBY FIND AND RESOLVE AS FOLLOWS: SECTION 1. Findings. The City Council finds that the recitals contained in this Resolution are true and correct and hereby adopts them as findings as if fully set forth herein. 2. The City Council finds that the public use for which the property is to be acquired is to accommodate the construction and installation of a water pipeline to eliminate an open water canal and the potential health hazards and safety risks inherent in operating an open water canal. 3. The general location of the proposed permanent easement acquisition is shown on the attached Exhibit "1" and legally described in the attached Exhibit "2" and consists of a ten (10) foot wide, four -hundred (400) foot long easement traversing over a narrow portion of one private road (Shady Oak Court) and parking area located on the Crystal Canyon Condominium development. 4. The general location of the proposed temporary easement acquisition is shown on the attached Exhibit "1" and legally described in the attached Exhibit "3" and consists of a twenty-five (25) foot wide, four -hundred (400) foot long easement traversing over a narrow portion of one private road (Shady Oak Court) and parking area located on the Crystal Canyon Condominium development. 5. The City Council finds that the public interest and necessity require the proposed pipeline project and the acquisition of the permanent and temporary easements so that the northern segment of CIC's open canal can be routed underground and connected with the southern segment of underground pipeline in the Rosedale Development for the reasons set forth in this Resolution. 6. The City Council finds that CIC's proposed pipeline project is planned/located in a manner that is most compatible with the greatest good and least private injury. 0 0 7. The City Council finds that the property described on Exhibits "2' and "3" attached to this Resolution is necessary for CIC's proposed pipeline project. 8. The City Council finds that the permanent and temporary easements through the Crystal Canyon Homeowners and/or Crystal Canyon Home Owners Association's private street named Shady Oak Court and open parking lot property as further described herein is necessary for CIC's proposed pipeline project. 9. The City Council finds that the rights of way for ingress and egress through the Crystal Canyon Condominium property described herein are necessary for CIC's proposed pipeline project and necessary for CIC to be able to properly exercise its rights under the permanent and temporary easements as described herein. 10. The City Council finds that the hardship to CIC (and to the public generally) of not acquiring the permanent and temporary easements over the property described herein by eminent domain outweighs any hardship that will be experienced by the affected property owners and/or homeowners association of the Crystal Canyon Condominium development. 11. The City Council of the City of Azusa hereby consents to CIC's use of eminent domain power in order to secure a permanent 10 -foot wide easement and right of way for ingress and egress, and at any time and from time to time, to construct, install, use, inspect, locate, maintain, operate, alter, add to, repair, replace, remove and/or relocate pipelines and related facilities and connections, including, but not limited to, the right to construct, install, maintain, and operate a 42" pipeline, and the right to remove, replace, and/or relocate any above -surface and sub -surface pipelines, improvements, structures, trees, shrubs, and any other growth thereon, necessary or convenient for CIC's, and its successors and assigns, use of the easement for water transportation and for any and all other uses and purposes of CIC and of its successors and assigns, in, under, upon, over, across and through Shady Oak Court and the parking lot owned by the Crystal Canyon Development Homeowners and/or Crystal Canyon Development Home Owners Association as shown on the attached Exhibit "1" and as described in the attached Exhibit "2". 12. The City Council of the City of Azusa hereby consents to CIC's use of eminent domain power in order to secure a temporary 25 -foot wide construction and installation easement and right of way for ingress and egress, to construct, install, use, inspect, locate, maintain, operate, alter, add to, repair, replace, remove, and/or relocate such pipeline or pipelines and facilities and connections, including, but not limited to, the right to operate necessary equipment thereon, the right to construct, install, maintain, and operate a 42" pipelirie, and the right to remove, replace, and/or relocate any above -surface and sub -surface pipelines, improvements, structures, trees, shrubs, and any other growth thereon, in, under, upon, over, across, and through Shady Oak Court and the parking lot owned by the Crystal Canyon Development Homeowners and/or Crystal Canyon Development Home Owners Association as shown on the attached Exhibit "1" and as described in the attached Exhibit "Y', and which shall be temporary in nature and not a permanent encumbrance against the Crystal Canyon Condominium property and shall expire upon completion of the construction and installation of the 42" pipeline and facilities and connections. 0 0 SECTION 2. California Environmental Quality Act. The City Council finds that the adoption of this Resolution is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15282(k) of the CEQA Guidelines and Section 21080.21 of the California Public Resources Code. The proposed easements are designed to accommodate the construction, installation, maintenance, and operation of a water pipeline not exceeding one - mile in length. Staff is directed to file a Notice of Exemption with the Los Angeles County Clerk's office within five (5) days of the adoption of this Resolution. SECTION 3. Proposition 99. The City Council finds that Proposition 99 is not applicable to the adoption of this resolution since such adoption does not result in the acquisition of the subject easements by CIC via eminent domain. Instead, the adoption of this resolution authorizes CIC to file an eminent domain action to acquire the subject easements should it choose to do so. Furthermore, even if Proposition 99 were applicable, the City Council finds that the adoption of this resolution would be excluded under section 19(c) of Article I of the California Constitution since the proposed easement acquisitions are necessary for CIC's proposed pipeline project, which is designed to protect public health and safety. SECTION 4. Effective Date. This Resolution shall be effective immediately upon (1) approval by the City Council; and (2) the execution of an indemnification agreement between the City of Azusa and the Covina Irrigating Company indemnifying the City for its adoption of this resolution. PASSED, APPROVED AND ADOPTED this 21 st day of July, 2008. /(?/"/) oseph R. Rocha, Mayor 0 0 APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney, BBK Law LLC ATTEST: Vera Mendoza, City Clerk STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF AZUSA ) I, Vera Mendoza, City Clerk of the City of Azusa, do hereby certify that the foregoing Resolution No. 08-C61, was duly introduced and adopted at a regular meeting of the Azusa City Council on this 21" day of July, 2008, by the following vote, to wit: AYES: COUNCILMEMBERS: GONZALES, CARRILLO, MACIS, HANKS, ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE Vera Mendoza, City Cler ruy�ytM, ' Shady Oak Ct. r � p. fEEqu� {MU°9 YuASprrJ4m . eslt„yt� M a [k 3J 619G' fl�(t. W H o x BLDG. • LBYSlAlI18.DB 6N& M 3G1 A 0 9 BLDG .39 os .. RVStBt WIYDA DRIVE,Tt rLt1 t 1 l AZUSASALtGr,BBUL(WlkIDAD { Ranch Road' A BLDG 28 EEaE a 3 Bi9u BLDG. �E. 2 29 v i (kysm '"°"" ar>� •5AH fiA9R1El CAl1Y4t1 ROAD [OPOWAAllgnment OfPlpeline ha4fi ain Requires Easement. From FlomeownersAssociation No condominiums will be affected or demolished. This would only effect the street area and trash bin area only. BLDG. NA(�,I}YDBBB}� PI ESttSPi74 *041. • • al N3lA NVW 3NRidN'°1w-".. AIN3dNld YON °" ,••"••-• r.m L L l Ad 1m159P5NYdL iY 1N3W3JYIdB1 TMq+`, 4 os AM'dYW7 9N,Ar•J7Itll MtlAO] �`m n xYRY-008-1is 1 � �� TIO � � I / � -q ✓ wn�m ^ x `• � AI^.1 3flJS N amm+a Ng1YpI4Lt 3NfMWL NYI . W O N �/..LLu:Iln24L:WUL,JilJ,�La. — ,.� r" z J W 91. T � A,-yN,Tyrws EXHIBIT "2" (Page l.of -2) THAT PORTION OF LOT 3 OF TRACT NO. 44104, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED IN BOOK 1053, PAGES 97 AND 98, OF MAPS, TN THE OFFICE.OF THE RECORDER OF SAID COUNTY WITHIN A STRIP OF LAND OF I0.00 FEET WIDE, LYING 5.00 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTER LINE: BEGINNING AT A POINT IN THE EASTERLY LINE OF SAID LOT 3 DISTANT THEREON SOU?H 18" 07'34" EAST 84.67 FEET FROM THE MOST EASTERLY NORTHEAST CORNER OF SAID LOT 3, SAID EASTERLY LINE ALSO BEING THE WESTERLY LINE OF AZUSA AND SAN GABRIEL CANYON ROAD, 50.00 FEET WIDE, AS SHOWN ON MAP OF SAID TRACT; THENCE SOUTH 710 52'260 WEST 135.82 FEET; THENCE SOUTH SI ` 54'59" WEST 261.09 FEET TO THE EASTERLY LINE OF SAN G.9BMBL CANYON ROAD, '00.00 FEET WIDE AS SHOWN ON MAP OF SAID TRACT. THE SIDELINES OF THE ABOVE DESCRIBED STRIA OF LAND SHALL BE PROLONGED OF SHORTENED AT THE BEGINNING AND END THEREOF SO AS TO TERRUNATE IN THE EASTERLY LINE OF SAID AZ[1SA AND SAN GABRIEL CANYON ROAD AND THE WESTERLY LINE OF SAID SAN GABRIEL CANYON ROAD RESPECTIVELY, CohWring 3,969 Y Sq. R NOTE. AZL'SA AND SAN GABRIEL CANYON ROAD HAS BEEN RE-NARANCH ROAD_ 79oa y= 9l£OF CA's``<�� . EXHIBIT "2" (Page 2 of 2) ,20 20 I 5 MOST E':Y NE. CORNER OF I.OT 3, u1 TR, k0. 4t) 04, M.9. 7033-97-98 , 5 C� { !Ij 't 100 OF -C% pa, 98 tnm P i ZO 51�526`N I ,N i 5� I Z6L.09'8t'5a58. 5 i w POtN-T OF PORTION OF LOT 3, � BEGINt`NI1 G TR. N0. 44104. ; 1h.B. 1053-37-98 loco c > t>30.9A07 Awa KrATM .WEA, OF EA D&W Paws PREPW2E0 Br: I ?' EASEMENT FOR WATER_NE PURPOSES Mull, , �f! �^t 118 W138fLaMAVM M O•.. VDIAMM. CA 91016 DNM. 14-W-Ofi i GRAM: J. P. V. ' SON,E: 1, - 80' PHOM (626) 3S74M erigz eerirzg inG FAX (626) 303.1997 DRAWwc NQ.252o2.2HQk x.1 I S71EET OF t EXHIBIT "3" (Page 1 of 2) THAT PORTEON OF L(1T3 Oi° T72ACTNO:441.A immtYTYOr AmA,.COUNTY OFLos AwGEI.ES; STATT?6P.CAI:EYTRNIAyAs SITCYWN'ON'wp FTLia mBOOK 1053, MOBS 97 AND 9&, OT MAPS, IN TO-OFPICE OF T73$7tFiCORO73t OP SAID COUNTY wrluN A 6"f$IP Or LAM OF 2s. 00 FBBT www, tYB10 t2.5B FEe'T ON EACH SM OFTHE FOLl OVlNGd;>ESCRTBBD CBNfER7 M- BIiG*RMga. AT APOW IN THEEASTEDLYMEROPSAID x.(71' 3 DISTAM TMREONSOTYMIVO7"L4 L=SWFMFADMTHR;MSTEASTTiRLY NORTHEAST CORNER OV WD WT 3, 8iiM A=tLYLM AF SO,BSINQ TM W63TMY LM OF AZUSA AM SAN OABl216k;CANYON ROAD: "MTBET WIDE, AS SHOP/N ON MP OF'S;0[ IRACr MWCB$OTIMn? S2 W WEST 133.82 PEST; TMNCEUMM.m*SA!.SS°R'F.S 2M,09FEi"fl'TQTIAEASTMLYLWP,OFSAN OASML CANYON WAD, 100,00 Mf WMP A3 SHOWN Old MAP OF SATDTRACT. T41E SiDELU MS Of IM MOVE DESCMW SMP OF LAND SMALL BE PROLONGED OF SRORTMMD AT TM MANNING AND M4D TII ZEOP SO AS TO TTin1MINA71I IN THE BAS MLY LVIM ORSAID AZUSA AND.SAN QABRML CANYON ROAD AND THE WBSML.VLM OF SAM fiW OABL{i .CANYQN ROAD RESPECTEVBLY, Coaw4ft 9923 ± 4 fl NOTE: AZUSA AND SAN CvSSVM CANYONROAD ELAS 0HWF5-NAAMD RANCR ROAD. EXHIBIT 4'3" (Page 2 of 2) _ . 1._�. Veit my. `. OP 4�1t 'a N.�B:'1a9S-.BOK& 0� '4,132 �.. O� lily" 545' tix -PMW OF }'(^I•S�•I% ?y PORTION OF LOT 3: TR. X. 44104, M.B. loba-93--98' 100' --lMokslQOYl9i14. , OR . P m'oaeram s [ aa4GW8 TEMPOWY CONSTRUCnON RAW MEMENT FOR WATER UNE PURPOSES i ' - 7Y3��. QIG 'SALC ,. LhR`. f-¢4-08 EBFWN: J. P. Y. 1•.� BD• uivwwE No.@Y{n:)UP,MpsjsN�er 4 or' 1 �. �1Bj�B. asbnIq� 9! 1 hill -of '1 h 'aY I Ft -lw ioo t t � I � pa71 AM't ; AM a.: } � AK— Q " tt a hi RAF aMr' i. a tz s a1M � � n.Gyax hr jyh., I r I „� FTiIR i 1l 1 ��)1 P' j�.aiMYdv�xw�H re 4I a �a�Y, 1 1 xJ ufta.�P'"q�dln .5, + fi Y' SO b✓ S 1 �. tll} � t ° � � � y 1`?r�r� i'+�` w" $�i,�pv4L � 5.'+�`•�°7C, n mn ^T'F .n, •- - 16 C.P-I MARK B NORTON, MD, MSPH Dhdor April 2, 2008 P EXHIBIT "C" 0 State of Californi"ealth and Human Services Agency California Department of Public Health Mr. David De Jesus General Manager Covina Irrigating Company 146 East College Street .Covina; CA 91723 Dear Mr. De Jesus: SYSTEM NO. 19101.28 — EASTSIDE CANAL REPLACEMENT PROJECT ARNOLD$CHWARZENEGGER Owe= The purpose of this letter is to document the support of the Callfomia Department of Public Health (Department) for the Covina irrigating Company's (Company's) plan to replace the Eastside Canal with a buried 42 -inch pipeline. The'Eastside Canal is a 1.4 - mile open conduit that conveys raw surface water from the San Gabriel River diversion facilities on its way to the Company's William B. Temple Treatment Plant. As discussed in the San Gabdal Watershed Sanitary Surveys (1995-2005) and previous reports from this Department, the canal is vulnerable to contamination from a variety of sources, suchas wildlife, windblown trash and. debris, and urban runoff. These contamination sources may be linked to the levels of total and fecal coliform that have been observed at the treatment plant inlet. Although the Company provides adequate surface water treatment; state and federal regulations and guidance have been placing increasing emphasis on source water protection as a means of ensuring the safety of drinking water. Therefore,the Department finds that replacement- of the Eastside Canal with a buried pipeline should protect public healthby – significantly reducing potential contamination sources and strongly supports. the Company's goals for this project. If you have. any questions, please contact.Susan Early at (213) 560-5785. .Sincerely, Jeff O'Keefe, P.E. District Engineer Metropolitan District. Southem Callfomla prinking Water Field 0perallons Branch, Southern Caflfornia Section . — -...._ ,.. . --_ enc , n....:a... nn onnon B — �D - 0 0 EXHIBIT "D" - -- ---- -------------- --------------- ��- 1 _ _..-_________ --------------- ® v s A m u -------- ------------- es —— — — — — — — ----- d f A _—___—_—_—_ _—_— x v ------------ ________- ' d , C st l 0 L� 95'A MAS 1 I d • N Report Exhibit E -- CIC's Request to City of Azusa Exhibd E. pdf Report Exhibit F — Letter from HOA's Attorney May 14 Ur HOA Attny. pdf Report Exhibit G — CIC's Response to HOA Attomey Comments CIC Resp Ur. pdf -Report Exhibit H — Letter from CIC regard Mayor's Concerns Exhibft H. Assurance Ur. pdf E Page I I of I I • RECEIVE# OCT 18 M7 AZE1.5A LIGHT & WATER COVINA IRRIGATING COMPANY VIA RAND DELIVERY Joseph R. Rocha, Mayor City of Azusa Administration Department 213 E. Foothill Blvd. Azusa, CA 91702 Angel Carrillo, Council Member City of Azusa Administration Department 213 E. Foothill Blvd. Azusa, CA 91702 Robert Gonzales, Council. Member City of Azusa Administration Department 213 E. Foothill Blvd. Azusa, CA 91702 October 10, 2007 Keith Hanks, Mayor Pro -tem City of Azusa Administration Department 213 E. Foothill Blvd. Azusa, CA 91702 Uriel E. Macias, Council Member City of Azusa Administration Department 213 E. Foothill Blvd. Azusa, CA 91702 Re: Crystal Canyon homeowners Association/Covina Irrigating Company Request for Use of Eminent Domain Powers Pursuant to California Government Code, Section 1245.310.et seq. Honorable Mayor and Council Members: Covina Irrigating Company ("CIC') is a non-profit mutual water company, and, pursuant to Code of Civ. Proc. sections 1245.310 et seq., requests by this letter that the City Council adopt a resolution consenting to CIC's acquisition of a I0 -foot wide underground pipeline easement by eminent domain across a small portion of the parking area located on real property more commonly known as. the Crystal Canyon condominium complex ("Crystal Canyon"), located in between Rancho Road and San Gabriel Canyon Road. This letter shall describe the easement to be acquired; summarize CIC's attempts to acquire the subject easement from the Crystal Canyon Home Owners Association (the "HOA") since April 2006; CIC's statutory authority for acquiring easements by eminent domain; the benefits to the City for supporting CIC's eminent domain action; and the feasibility of other alternative routes for CIO's proposed pipeline project. 146 E. COLLEGE STREET - POST OFFICE 60X 30S - COVIMA, CA 91723 (626) 332-1502 - FAX (626) 967-5942 0 City of Azusa City Council October 10, 2007 Page 2 I. Easement to he Acquired and CIC's Proposed Pipeline Proieet For over 100 years, CIC, along with other members of the San Gabriel River Water Committee more commonly known as the Cornu ittee of Nine, which includes the Azusa Agricultural Water Company and the Azusa Valley Water Company, has operated and maintained an open canal which runs throughout the northeastern portion of the City of Azusa (the "City") transporting water from the San Gabriel River to the eastern portion of the San Gabriel Valley. The water from this canal is treated and provides potable water on a wholesale basis to a population in. excess of 100,000 consumers. Because of the potential dangers associated with an open canal and liability risks associated with the continued operation of this canal, the City has long supported CIC's desire to replace the canal with underground pipelines. As you know, the City has approved entitlements, including a Specific Plan (Monrovia Nursery Specific Plan) and Development Agreement authorizing development of the former Monrovia Nursery site ("Rosedale Project") located on real property formerly owned by the Monrovia Nursery between East Sierra Madre Avenue and East Foothill Blvd., and situated in close proximity to the Crystal Canyon complex. As part of the approved Rosedale Project entitlements, the Rosedale developer has requested, and CIC has tentatively agreed, to relinquish a portion of its interests in the canal in exchange for the City and developer's agreement to construct an underground pipeline for CIC's benefit. This plan calls for the developer to design and construct an underground pipeline to replace that portion of the open canal presently located within the Rosedale development project, and which will be located in a portion of East Sierra Madre Avenue just east of San Gabriel Canyon Road. In connection with the Rosedale project, the City and CIC have negotiated a license (which has not yet been signed) to permit the construction of an underground pipeline going south on San Gabriel Canyon Road and then east on East Sierra Madre Avenue within public streets, where it is to connect with the pipeline constructed by the Rosedale Project developer. A copy of a map depicting the location of the open canal system and the route of the proposed underground pipeline is attached hereto as Exhibit "A" for your review. The water received from the San Gabriel River by CIC is transported through the open canal to a power facility owned and operated by the City of Pasadena, which is located directly across Rancho Road from one of Crystal Canyon's parking areas. Unfortunately, there is no feasible alternative route for CIC to transport the water from this facility to the new pipeline in San. Gabriel Canyon Road other than across one of Crystal Canyon's parking areas. CIC proposes to construct an underground pipeline from the Pasadena facility through the parking area, where it will connect with the proposed pipeline in San Gabriel Canyon Road. The 10 -foot. wide easement area would run approximately 400 feet for a total easement area of approximately 4,000 square feet. The only other potential route would be to install. the pipeline in Rancho Road 0 0 City of Azusa City Council October 10, 2007 Page 3 from the power facility down to the intersection with San Gabriel Canyon Road. However, due to the high number of existing utility pipelines and facilities currently Located in Rancho Road, installation of CIC's pipeline in this street, if even possible, would be very costly and would necessitate the shut down of Rancho Road and cause temporary utility outages during the period of construction to many homes in the area. This will result in a significant inconvenience to not only the many residents that use this street for road access to their homes, but also to the general public as well for an extremely extended period of time. Bottom line, the only feasible route is to go through Crystal Canyon's parking area. II. CIC's Prior Negotiations with the HOA. CIC and the HOA, through its previous attorney, Kris Geiger, Esq., worked together for almost one year on the terms of an agreement that would grant CIC an easement over the Crystal Canyon parking area, and the parties reached agreement on all but three issues before the HOA terminated all discussions. The HOA subsequently hired Michael H. Leifer, Esq., of Palmieri, Tyler, Wiener, Wilhelm & Waldron LLP as its new counsel, and we have been unable to revive or finalize those negotiations. The agreed terms are summarized as follows,. I. CIC will pay to the HOA $20,160.00 as consideration for a 10 -foot wide underground utility easement over a small portion of Crystal Canyon's parking area. 2. CIC, at its sole expense, will keep and maintain the pipeline in good condition and repair. 3. Except in the event of an emergency, CIC will provide the HOA with seventy-two (72) hour notice prior to entering the property. 4. CIC will indemnify, defend and hold the HOA harmless from any claims, damages, and costs including reasonable attorneys' fees, arising from (i) CIC's performance of the construction and installation. of the pipeline and (ii) CIO's use of the easement, except to the extent such claims arise from the negligence or willful misconduct of the HOA and related entities. 5. All work performed in connection with the construction and installation of the ..pipeline will be performed pursuant to plans, drawings and specifications prepared by Civiltec Engineering, Inc. ("Civiltec"), and at CIC's sole cost and expense. CIC will also hire and contract with a fully bonded and licensed contractor to perform the work 6. HOA can place surface improvements on the easement area so long as such improvements do not unreasonably interfere with CIC's use of the easement. City of Azusa City Council October 10,2007 Page 4 7. CIC is responsible, at its sole expense, for repairing any damage to the easement area, the property, and any and all improvements thereon arising from CIC's performance of the work, and restoring same to the condition existing immediately before the performance of the work to the extent reasonably practicable. K CIC is responsible, at its sole expense, for the prompt correction of any interference with existing utilities located in and around the easement area and property arising from CIC's performance of the work. 9. CIC's performance of the work will not interfere with emergency service vehicles' access to the property. 10. Should the residents of Crystal Canyon be forced to evacuate the property pursuant to a court order or any other governmental agency order as a result of a hazardous condition created or caused by CIC's performance of the work, CIC will reimburse the residents for all reasonable costs and expenses incurred by any such order requiring overnight lodging at a local hotel for such residents up to a maximum stay of seven (7) days. 11. CTG shall be,responsible for all survey and survey -related costs and expenses connected with the project. 12. During the performance of the work, CIC will obtain and continuously maintain: a. Comprehensive general liability insurance insuring the HOA, as an additional insured, against any liability arising from CIO's performance of the work on account of bodily injury or death to one person in the amount of One Million Dollars ($1,000,000.00); on account of bodily injury to or the death of more than one person in the amount of One Million Dollars ($1.,000,000.00); and on account of damage to or destruction of any property in the amount of One Million Dollars ($1,000,000.00) for each accident and Three Million Dollars ($3,000,000.00) aggregate; b_ Commercial automobile liability insurance in the amount of One Million Dollars ($1,000,000.00); and c. Workers compensation insurance in statutory form 13. The Construction and Installation .Agreement will. specify that CIC's indemnification obligation will survive termination or expiration of the agreement . 0 0 City of Azusa City Council October 10, 2007 Page 5 14. In the event CIC no longer uses the pipeline, CIC agrees to cap and abandon the pipeline at its sole cost and expense. The parties were unable to reach agreement on the following issues: 1. The effective date on which CIC's obligation for payment of delay damages will begin. 2. The amount of the HOA's attorneys' fees to be funded by CIC. 3. The need for a second engineer at CIC's sole cost and expense to review Civiltec's plans and drawings and to oversee construction and installation of the pipeline. Despite the HOA's refusal to continue discussions, CIC was determined to resolve this dispute by way of agreement and therefore avoid having to seek the City's assistance to pursue condemnation proceedings. For example, by letter dated May 13, 2007, CTC expressed its interest in reviving negotiations between the parties but to no avail. By letter dated June 14, 2007, CIC again attempted to reach out to the HOA by suggesting a meeting between the parties to discuss the proposed project and easement, as well as to answer any questions the HOA may have concerning the proposed project. Unfortunately, the HOA rejected CIC's invitation. CIG made one final attempt in early September to reach an agreement with the HOA by increasing its initial offer of $20,160.00 to $50,000.00, as well as other concessions. In support of its offer, CIC included a copy of an appraisal dated February 2, 2006 prepared in connection With CIC's acquisition of an underground pipeline easement over that portion of land adjacent to Pasadena's power facility which is directly across Rancho Road from Crystal Canyon's parking area A copy of the appraisal is attached hereto as Exhibit °B" far your review. That easement area consisted of approximately 3,607 square feet of land located on a small portion of an eight acre parcel owned by Pasadena. In contrast, CIC's proposed easement over a portion of Crystal Canyon's parking area will consist of approximately 4,000 square feet of land. The date of valuation used for the appraisal was January 31, 2007, and the appraiser determined a fair market value for that easement calculated at $20,000.00, or $5.545 per square foot. CIC's revised offer of $50,000.00, or $12.50 per square foot, is more than 2 times the market value per square foot of the easement area that is the subject of the appraisal. Unfortunately, the HOA has.chosen not even to respond to CIC's most recent offer. CIC was also willing to assume an obligation for delay damages in the amount of $500.00 per day should the project not be completed within 20 business days after breaking of ground, which was one of the three remaining issues not agreed on by the parties during their initial discussions. 0 0 City of Azusa City Council October 10, 2007 Page 6 It is clear that CIC's attempts to negotiate in good faith with the HOA have fallen on deaf ears. The HOA appears to have no desire to resolve this issue with CIC and would like, for whatever reason, for all parties involved, including the City, to incur the significant expense, energy, and hardship connected with a condemnation action. Therefore, CIC has no choice but to seek the City's help in pursuing such an action. M. CIC's Statutory Authority for Acquiring Easements by Eminent Domain. Under California law, CIC, as a mutual water company, has the authority to acquire an easement over Crystal Canyon's parking area by eminent domain. Under Code of Civ. Proc. §1245.330, a quasi -public entity may not commence an eminent domain proceeding to acquire any property until the legislative body of each city, within whose boundaries property sought to be taken by the quasi -public entity by eminent domain is located (Code of Civ. Proc. §12454.310(a)), has adopted a resolution consenting. to the acquisition of such property by eminent domain. A "quasi -public entity' includes a mutual water company that seeks to take property by eminent domain under Pub. Util. Code §2729. Code of Civ. Proc. §1245.320(f). Linder Pub. Util. Code §2725, a "mutual water company" means any private corporation or association organized for the purposes of delivering water to its stockholders and members at cost, including use of works for conserving, treating and reclaiming wager. A mutual water company may exercise the power of eminent domain for water, water rights, canals, ditches, dams, poundings, flumes, aqueducts, and pipes for irrigation of lands famished with water by such company. Pub. Util. Code §2729. CTC is a mutual water company under the Public Utilities Code. Code of Civ. Proc. §1245.340 requires that the resolution to be adopted by the City . Council contain all of the following information: (a) A general statement of the public use for which the property is to be taken and a reference to the statute that authorizes the quasi -public entity to acquire the property by eminent domain. (b) A description of the general location and extent of the property to be taken, with sufficient detail for reasonable identification_ (c) A declaration that the legislative body has found and determined each of the following: (1) The public interest and necessity require the proposed project. (2) The proposed project is planned or located in. the manner that will be most compatible with the greatest good and least private injury. City of Azusa. City Council October 10, 2007 Page 7 (3) The property described in the resolution is necessary for the proposed project. (4) The hardship to the quasi -public entity if the acquisition of the property by eminent domain is not permitted outweighs any hardship to the owners of such property. CFC has had numerous conversations over the past several months with City staff and the City Attorney's office concerning CIC's proposed project_ We understand that City staff is prepared to recominend the adoption of a Resolution pursuant to the authority cited above since the only feasible route for CIC to connect to the pipeline in San Gabriel Canyon Road is through Crystal Canyon's parking area. They have also expressed their willingness to answer any questions the City Council may have concerning CIC's proposed project. IV. Benefits to the City Resulting front CIC's Proposed Protect. If CIC is able to install its pipeline in Crystal Canyon's parking area it will result in significant benefits to the City. These include: 1. Public Health & Safety Benefits from Conversion of Open Canal to Underground Pipeline. As previously explained, CIC will be able to transport water from the San Gabriel River through the proposed underground pipeline instead of the open canal which will result in increased public safety and significantly reduce the exposure to liability in connection with the open canal. In addition, CIC's proposed pipeline project is critical to the success of the City's overall implementation of the Monrovia Nursery Specific Plan and Rosedale Project The City, CIC, and the developer of the Rosedale project have spent a significant amount of time, energy, and money negotiating the terms of the new underground pipeline within the Rosedale Project site. CI.0 would be severely prejudiced if it were forced to use an alternative route to attempt to connect to the pipeline in San Gabriel Canyon Road. Z. Implementation of the Monrovia Nursery Specific Plan. The City also has a long standing relationship with CIC. The City has a vested interest in ensuring that CIC is able to connect to the pipeline in San Gabriel Canyon Road and therefore complete a critical component to the City's master planning efforts as described in the Monrovia Nursery Specific Plan. 3. Minimize Service Disruptions to Area Residents & Service Providers. Finally, allowing CIC access through Crystal Canyon's parking area will reduce the burden and inconvenience placed on City residents living in that area in connection with CIC's proposed project. As noted previously, the only other possible route would be to install the pipeline in Rancho Road from the power facility down to the intersection with San Gabriel Canyon Road. 0 0 City of Azusa City Council October 10, 2007 Page 8 However, due to the high number of existing utility pipelines and facilities currently located in Rancho Road, installation of CIC's pipeline in this street would be very costly and would. necessitate the shut down of Rancho Road and cause temporary utility outages during the period of construction to many homes in the area. This will result in a significant inconvenience to not only the many residents that use this street for road access to their homes, but also to the general public as well. V. Conclusion. CTC has done everything within its power to try and settle this issue with the HOA without having to get the City involved. Unfortunately, the HOA has no desire to settle this issue despite CIC's willingness to be more than conciliatory in reaching an agreement_ Therefore, CTC has no choice but to request that the City adopt a resolution consenting to CIC's acquisition of a utility easement over a portion of Crystal Canyon's parking area. Public interest and necessity require the proposed project since it will be most compatible with the greatest good and least private injury. Finally, the risk and expense to the City in adopting the resolution described herein would be minimal since CIC is prepared to reimburse the City for its costs and indemnify the City for all costs, expenses, and claims arising out of its action to approve -such a resolution. The City and CIC are currently working on the terms of an Indemnification Agreement that will memorialize CIC's indemnification obligations, ery truly yours, David De Jesus, PrespentlGM Covina Irrigating Co parry Enclosures cc: Fran Delach, City Manager, City of Azusa Sonia R. Carvalho, City Attorney Marco A. Martinez, Assistant City Attorney Joe Hsu, Director of Utilities, Azusa Light and Water Department, City of Azusa Timothy J. Gosney, Lagerlof, Senecal, Gosney & Kruse LLP LAW OFFICES PALMIERI. TYLER. WIENER, WILHELM -G WALDRON LL$ _ h LIMITED LLLBM1RY PARTNERSNIP INCLUDING PROFEWIONAL CORPORATIONS 2603 MAIN STREET ANGELO J PALMIERI 11926-1998) EAST TOWER - SUITE 13oo AZUSA CITY CLERK P O GO% I9TIE ROBERT F. WALDRON 11927-190HI IRVINE, CALIFORNIA 92614.4261 IRV INE. CP 92823-9112 ALAN N WIENER` DONNA L SNOW ROBE" C INRKV RYAN N EASTER 19491 651-9400 JAMES C WIUHLLM' ELSE L ENOMOTO - www F,tyJWw.COT DENNIS G TTLEW HEATHER C WN9NOR£ MICHAEL J GREENE' ELIZABETH vALADLZ DEMME W G.— NEL19A R. PEREZ DAVID O. PARR' ANISH J BANNER MICHAELCHARLES May 14, 2008 PATRICK A HENNESSEY ROBERT GARRETSON DON FISHER JASON E BURNETT GREGORY N WEILER WAN M PRAGER WARREN A WILLIAMS JOSEPH W NANCY IN JOHN R LSTER JULIA A. GOWIN CYNTHIA M WOLCOTT CHADWICH C BUNCH GARY C. WEISBERG ANNIE C CHU MICHAEL H LEIFER JERAD BELTZ SCOTT a CARPENTER HEATHER N WHITEHEAO RICHARD A SALUB £PIN OALSARA NORM.W J ROOK. BRETT L HORVATH ' RONALD M. COLE DEREK M. OE..E MICHAEL L D'ANOELO F JULIAN FREEMAN HI STEPHEN A SCHECK EPICA M SOROSITY VIA BAND DELIVERY, FACSIMILE AND EMAIL Members of the City Council City of Azusa 213 E. Foothill Blvd. Azusa, CA 91702 1008 11AY I u P 5: 19 YJRITER-S DIRECT Of AL LAUNDER (949) 551-7204 mleiferQptwww.cam FPC6IMILE 10991 851-1684 19991 851-3844 ID401 26f-ID86 REFER TO FILE NO 36276-000 Re: Notice of Public Hearing Re Adoption of Resolution to Consent to the Use of Eminent Domain to Acquire Property Owned by the Crystal Canyon Homeowners Association Honorable Members of the City Council: As you are likely aware, this firm has been retained to represent Crystal Canyon Homeowners Association ("Association") in connection with the proposed taking of a portion of the developed and occupied Crystal Canyon development (the "Subject Property") by Covina Irrigating Company ("CIC") in connection with a water pipeline Project (the "Project"). We have received a notice that the City of Azusa will consider the adoption of a resolution consenting to the use of eminent domain by CIC to take a portion of the Subject Property. Based upon this notice, the hearing by the City Council on the resolution is set for May 14, 2008 at 7:30 p.m. ' The purpose of this letter is to provide the Association's written objections to the resolution. We request that this letter and its enclosures, as well as the Association's prior objection letter dated February 4`h, 2008 and its enclosures, be included as part of the formal administrative record on this agenda item. 0 Members of the City Council May 14, 2008 Page 2 is CIC claims it is a mutual water company authorized under Section 2729 of the California Public Utilities Code to acquire an easement over the Subject Property by eminent domain. Code of Civil Procedure sections 1245.310 et seq, applies to the use of eminent domain by a quasi -public entity, such as a mutual water company. A resolution consenting to the acquisition of property by eminent domain by the legislative body must comply with the requirements of Code of Civil Procedure section 1245.340. Moreover, pursuant to Code of Civil Procedure section 1245.380, the quasi -public entity must comply with the requirements of Code of Civil Procedure section 1240.030 as well as any other requirements imposed by law. The Association renews its prior objections raised in its letter to the City Council dated February 4, 2008, a copy of which is attached hereto as Exhibit "A" (excluding the enclosures). Those objections include, but are not limited to, the following: CIC failed to make a legitimate precondemnation offer based upon an appraisal of the fair market value of the property as required by Government Code section 7267.2. The Association's due process rights have been violated by CIC's failure to comply with Code of Civil Procedure section 1263.025. Additionally, the Association further objects to the adoption of the proposed resolution on each of the following grounds enumerated below: 1. The advancement of this hearing is in violation of Government Code section 7267.5. Government Code section 7267.5 provides, "In no event shall the public entity either advance the time of condemnation, or defer negotiations or condemnation and the deposit of funds in court for the use of the owner, or take any other action coercive in nature, in order to compel an agreement on the price to be paid for the property." Pursuant to the City Council's direction, the parties engaged in an information meeting, followed by a brief mediation on April 14, 2008. Much of the time on April 14, 2008 was spent gathering the information that the Association had been requesting for years from CIC. It was through this meeting that the true scope of the Project across the Subject Property was discovered. 0 Members of the City Council May 14, 2008 Page 3 E On April 17, 2008, my office received a letter from Chris Chan, CIO's counsel, stating that the resolution authorizing CI.0 to condemn the Subject Property "has been continued indefinitely." Upon this representation, the parties agreed to move forward towards a second mediation. Despite this representation, the May 14, 2008 hearing has been noticed. This hearing is the result of either CIC or the City. CIC claims that it was not the driving force for the calendaring of this hearing. Such a claim is baseless considering the extreme modifications and amendments made to the notice and proposed resolution. Such information could only come from CIC. Moreover, the City has steadfastly maintained that it has no interest in this Project, and that it is not the City's Project — the City is only "consenting." Either way, whether provoked by CIC or not, CIC is clearly backing and helping to drive this hearing on the resolution of consent. CIC and the City are improperly advancing this hearing in an effort to gain a significant advantage in the negotiation process in order to compel an agreement from the- Association. Such an action is improper and is in violation of the Government Code. 2. There are Proiect alternatives that have not been analyzed. Thus, the requirements of Code of Civil Procedure section 1245.340, subdivision (c) cannot be met. Code of Civil Procedure section 1245.340, subdivision (c) requires that the legislative body must find.and determine each of the following before it can consent to the use of eminent domain by a quasi -public entity: (1) the public interest and necessity require the proposed Project; (2) the proposed Project is planned or located in the manner that will be most compatible with the greatest good and least private injury; (3) the property described in the resolution is necessary for the proposed Project; and (4) the hardship to the quasi -pubic entity if the acquisition of the property by eminent domain is not permitted outweighs any hardship to the owners of such property. Isere, none of these findings can be made because Project alternatives exist that have not been analyzed by CIC. Utilities of this size and nature should be placed in public streets. In fact, the rest of the Project's proposed pipeline is or will be in public streets except for the section that cuts through the Subject Property. CIC has not and cannot adequately explain why the water pipeline cannot be placed elsewhere, such as southerly along Ranch Road — a P Members of the City Council May 14, 2008 Page 4 0 public right of way. In fact, CIC cannot provide an explanation because CIC has not analyzed the Ranch Road alternative. CIC's bare assertion that Ranch Road is already "congested" with utilities is unsupported. In fact, after the Association finally received plans and other information it requested from CIC, it was evident that the 42 -inch water pipeline could be placed in/under Ranch Road. (A true and correct copy of the plans obtained from CIC are attached hereto as Exhibit `B".) By moving a current 2 -inch street light conduit, CIC could successfully place the pipeline in the parkway of Ranch Road. (See Exhibit `B".) Such a Project alternative has not even been considered by CIC. Because such a Project alternative exists, one which would not require the use of eminent domain to take private property, the City Council must find that (1) the planning and design prong cannot be met; (2) the least private injury prong (Code Civ. Proc., § 1245.340, subd. (c)(2)) cannot be met; (3) the property is not necessary for the Project; and (4) CIC will not suffer any hardship if the acquisition of the property by eminent domain is not permitted. 3. The takine of the Subiect Property is a predetermined outcome. As a condition precedent to the exercise of the power of eminent domain, a public entity must hold a public hearing to determine whether a particular taking meets the public interest and necessity criteria articulated in Code of Civil Procedure section 1240.030. (Code Civ. Proc., § 1245.235.) If, after such public hearing, the public entity determines that the proposed taking meets that criteria, then it must adopt a resolution of necessity before proceeding to condemn the property. (Code Civ. Proc., §§ 1240.040, 1245.220.) Implicit in this requirement of a hearing and the adoption of a resolution of necessity is the concept that, in arriving at its decision to take, the public entity engages in a good faith and judicious consideration of the pros and cons of the issue and that the decision to take be buttressed by substantial evidence of the existence of the three basic requirements set forth in Code of Civil Procedure section 1240.030. (Redevelopment Agency v. Norm's Slauson (1985). 173 Cal.App.3d 1121, 1125-1126.) In the absence of a fair and impartial hearing, the resolution of necessity is void. Here, the City has apparently already predetermined the outcome of the hearing well before it was set (see, Exhibit A, p. 12), and CIC also predetermined the outcome. As discussed above, there were no alternative alignments even considered. CIC already has the end part of the raw, untreated water pipeline constructed. According to CIC, it must build according to this alignment for flow reasons — the downstream pipe was situated so that the flow from the missing upstream section would solely come from this 0 Members of the City Council May 14, 2008 Page 5 alignment. CIC stated that it is financially committed to this alignment and studied no other. In fact, the proposed alignment over the Subject Property was the preferred alignment, and the only alignment analyzed. The proposed alignment has been in place since the early development of Rosedale — approximately 4-5 years ago. Since that time, CIC has committed itself to the Project going across the Subject Property. The reason no alternatives were studied or considered is because CIC has already pre -committed to the alignment over the Subject Property. The City is in danger of making the same mistake. 4. As the Association only recently learned. CYC has not fully disclosed the full. scope of the Proiect to the Association or to the City. Again, the planning and design prong cannot be met. As discussed above, the planning and design prong cannot be met because Project alternatives exist that have not been analyzed or even considered. Even more, CIC has failed to disclose to the City (and until recently to the Association), the true scope of the Project, as currently planned. First, CIC has not even completed its Project design. Accordingly, the scope of this Project is unsettled and could change. Moreover, unlike CIC's representations at the February 4'h, 2008 hearing before the City Council, this Project involves much more than the installation of a 42 -inch water pipeline. First, CIC sought a 10 -foot water pipeline easement. When confronted with the inadequacy of the 10 -foot water pipeline easement, CIC changed its position. Now, it is a 10 -foot easement with a 25 -foot temporary construction easement ("TCE"). CIC cannot construct, and will not limit its physical use of the Subject Property, to the width of the sought -for taking and TCE. CIC cannot remediate the damage it will do to portions of the remainder of the Subject Property because of the width limitations of the proposed taking and TCE. CIC cannot do all the necessary work, use, parking, entry, etc. inside a TCE of this size. Such insufficient taking results in physical occupancy greater than that authorized by the proposed taking and TCE. The insufficient taking either results in an attempt to cause the property owner to forfeit compensation or to be forced to file an inverse condemnation proceeding to recover compensation. This is an improper attempt to burden the property owner and minimize compensation. When CIC exceeds the scope of the permitted use, the property owner will be forced to defend itself by bringing an 0 0 Members of the City Council May 14, 2008 Page 6 inverse condemnation cross-complaint. Causing the owner to bring such an action by purposefully under -sizing the scope of the taking is improper. Such conduct is prohibited by Government Code section 7267 et seq., and particularly Government Code section 7267.5. Moreover, unlike CIC's prior misrepresentations, this Project is not limited to the installation of a 42 -inch water pipeline. Rather, as the Association only recently discovered, the actual scope of the Project involves boring on the Subject Property and the relocation of the community's existing waterlines and sewer lines to make way for the CIC water pipeline. (See Exhibit "B".) The actual scope of the Project will admittedly have substantial impacts on the Association community. It will impact the community's utilities. It will impact units. It will impact parking. It will impact access. It will impact services. It will impact occupancy. It will require utility relocations. It will impact other common area improvements. Moreover, CIC has not shown how the Association community is protected from a chronic or catastrophic failure on a physical or financial basis in the near term or the long term. Neither the City nor CIC have imposed binding conditions or obligations on the Project to monitor and protect the Association for the construction periods or for the long term. It is not enough for CIC to give "lip service" to its obligations. Moreover, by participating in and facilitating the Project over the Subject Property, the City is primarily responsible because, but for the City's condemnation approval, the Project could not go forward over the Subject Property. 5. The Proposed Project is not planned or located in a manner that will be most compatible with the least private injury requirement. One of the necessity components that must be analyzed and satisfied is whether the proposed Project for which the property is sought to be taken is planned or located in a manner that is most compatible with the greatest public good and causes the least private injury. (Code Civ. Proc., §§1240.030, subd. (b), 1245.340, subd. (c)(2).) In this situation, where there can be no substantial evidence supporting the determination as to the planning and location of the proposed Project, the resolution is invalid. Again, as discussed above, CIC's location of the proposed Project violates the "least private injury" requirements. CIC could accomplish the same intended result 0 Members of the City Council May 14, 2008 Page 7 without acquiring any interest in the Subject Property or impacting it by placing the water pipeline where it belongs — in the public right of way (such as Ranch Road). As discussed above, there are other more suitable locations for the proposed Project than the Subject Property. Such other locations would allow for the construction of the same type of Project for a "lesser private injury" than the present location being proposed. However, CIC has failed to analyze or consider any other alternatives. 6. The property sought to be acquired is not necessary for the Project. One of the other mandatory components to the necessity determination is that the property sought to be acquired must be necessary for the Project. (Code Civ. Proc., § 1240,030, subd. (c), 1245.340, subd. (c)(3).) In the absence of substantial evidence supporting such a determination, the resolution is not valid. As discussed in detail above, CIC has not established that the Subject Property is necessary for the Project. Again, there are alternate alignments for the water pipeline that do not involve going across the Subject Property, such as placing it in the parkway of Ranch Road. CIC has not provided any evidence of necessity. 7. The hardship to CIC if the acquisition of the property by eminent domain is not permitted does not outweigh the hardship to the owners of such property. The resolution consenting to the acquisition of property by eminent domain by a quasi -public agency must provide that the hardship to the quasi -public entity if the acquisition of the property by eminent domain is not permitted, outweighs any hardship to the owners of such property. (Code Civ. Proc., § 1245.340, subd. (c)(4).) CIC has made no showing of any hardship whatsoever. Again, as discussed above, CIC cannot make a showing of hardship. CIC can place the water pipeline in the parkway of Ranch Road by relocating a 2 -inch street light conduit. Compare this with the Project as proposed where CIC has to relocate the Association's existing water lines and sewer lines to make way for the 42 -inch pipe. If the acquisition of the property by eminent domain is not permitted, CIC will not suffer any hardship. To the extent that an asserted increased cost constitutes a "hardship," CIC has failed and refused to demonstrate any financial analysis whatsoever concerning any other 0 Members of the City Council May 14, 2008 Page 8 0 alignment. It has not demonstrated any analysis of the Ranch Road alignment versus cutting through the Crystal Canyon community. CIC has not analyzed, expressed, or quantified the hardship to the Crystal Canyon community. As discussed above, the community will be impacted and suffer substantial hardship. The construction of a pipeline that bisects the Subject Property will have short term and long term affects on the Crystal Canyon community. The Project will impact the community's utilities, the units, parking, access, services, occupancy, other common area improvements and it will require utility relocations. The Project will also impact the community over the long-term. Again, as discussed above, CIC has not shown how the Association community is protected from a chronic or catastrophic failure on a physical or financial basis in the near term or the long term. 8. CIC has failed to comply with the California Environmental Quality Act CE A . CIC has failed to analyze the environmental impacts of the proposed Project in violation of CEQA. While CEQA is complicated, the underlying concept is to inform the public and the decision maker of environmental impacts. The proposed project is part of a larger project. CIC is piecemealing the larger project in an attempt to avoid the applicability of CEQA. Such piecemealing is inappropriate. CEQA guidelines define "project" to mean "the whole of an action." (CEQA Guidelines, §15378, subd. (a).) "`Project' is given a broad interpretation in order to maximize protection of the environment." (McQueen v. Board of Directors of the Mod -peninsula Regional Open Space District (60 Dist. 1988) 202 Cal.App.3d 1136, 1143.) An agency should not "piecemeal" or "segment" a project by splitting it into two or more segments. The piecemeal approach can have disastrous environmental consequences. (See Burbank -Glendale -Pasadena Airport Authority v. Hensler (2d Dist. 1991) 233 Ca1.App.3d 577, 592.) In 1975, the California Supreme Court declared generally that CEQA mandates "that environmental considerations do not become submerged by chopping a larger project into many little ones — each with minimal potential impact on the environment — which cumulatively may have disastrous consequences." (Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 283-284; see McQueen v. Board of Directors of the Mod peninsula Regional Open Space District, supra, 202 Cal.App.3d at p. 1143 ["[a) narrow view of a project could result in the fallacy of division ... that is, 0 Members of the City Council May.14, 2008 Page 9 Is overlooking its cumulative impact by separately focusing on isolated parts of the whole".) CIC's attempt to circumvent CEQA by piecemealing the larger project into smaller sections is improper. CIC's failure to comply with CEQA fails requirements under the Eminent Domain Law. 9. The Association's due process rights have been violated by the defective notice of public hearing and proposed resolution. The notice of public hearing as well as the proposed resolution are defective. The notice does not provide adequate information regarding the scope of the project or the true extent of the taking. The proposed resolution is also defective as it does not deal with the scope or true extent of the taking. Moreover, the proposed legal description of the taking is provided in Exhibit 2 to the proposed resolution. The legal description does not limit the taking to an easement. Based on the foregoing objections, the Association requests that the City not adopt the resolution. letrot yours, Michael H. Leifer mal cc: Vera Mendoza, City Clerk, City of Azusa (via hand delivery) Fran Delach, City Manager, City of Azusa (via hand delivery) Marco Martinez, Esq. (via email w/o exhibits and via mail) Christopher Chan, Esq. (via email w/o exhibits and via mail) Client 0 VIA E-MAIL AND U.S. MAIL Mr. Cary Kalscheuer Azusa Light & Water Post Office Box 9500 Azusa, CA 91702-9500 0 Lagerlof seneoal GosW&Kruse LLP July 8, 2008 301 North Lake Avenue loth Floor Pasadena, CA 91101-4106 Phone: 626.793 9400 Fax: 626.793.5900 www.lagerlofcom Established 19o8 Re: Covina Irrigating Company Response to Crystal Canyon HOA Objections Dear Mr. Kalscheuer: As you know, the attorneys for the Crystal Canyon Home Owners Association (the "HOA' provided the City Council with written objections to the past two public hearings on the adoption of the resolution of consent by written correspondence dated February 4, 2008 and May 14, 2008. Most of these objections assert that the City of Azusa City Council cannot make the four findings necessary for adoption of the resolution required under California Code of Civil Procedure Section 1245.340. However, as you know, these objections are addressed in significant detail in the City of Azusa's May 14, 2008 staff report and are also included in the July 21, 2008 staff report. This letter responds to some of the other objections raised by the HOA and its attorneys as well as addresses the issue of Proposition 99: Pree,ondemnation Offer The HOA asserts that CIC has failed to make a precondemnation offer based upon an appraisal of the fair market value of theeasement to be acquired as required under California Government Code Section 7267.2. Government Code Section 7267.2(a)(1) requires that prior to the adoption of a resolution of necessity pursuant to Code of Civil Procedure Section 1245.230 and the initiation of negotiations for the acquisition of real property, the public entity shall establish an amount that it believes to be just compensation, and shall make an offer to the owner to acquire the property for the full amount established. Government Code Section 7267.2 is inapplicable to the current situation for at least two reasons. First, the City Council is not being asked to adopt a resolution of necessity pursuant to Code of Civil Procedure Section 1245.230. Instead, the City r Mr. Cary Kalscheuer Azusa Light & Water July 8, 2008 Page 2 • Council is being asked to adopt a resolution of consent pursuant to Code of Civil Procedure Section 1245.310'et'seq. In addition, Govertunent Code Section 7267 states that section 7267.2 does not apply "to the acquisition of any easement, right of way, covenant, or other nonpossessory interest in real property to be acquired for the construction, reconstruction, alteration, enlargement, maintenance, renewal, repair, or replacement of subsurface sewers, waterlines or appurtenances, drains, septic tanks, or storm water drains." Therefore, section 7267.2 is not applicable to CIC's proposed easement acquisitions. While Government Code section 7267.2 is inapplicable to CIC's proposed easement acquisitions, it is important to note that CIC has already made several monetary offers over the last two years in trying to reach agreement with the HOA. CIC's latest offer was made May 13'h and the HOA has elected not to respond. In addition, as stated by City Attorney Carvalho at the May 14s' public hearing, the City Council is being asked only to consider whether to adopt the resolution consenting to CIC's acquisition of an easement by eminent domain. If the City Council votes in favor of the adoption of the resolution by at least a two -third's (2/3) vote, such adoption does not result in the actual acquisition by CIC of the subject easements by eminent domain. Instead, adoption of the resolution only provides CIC with the authority to file a condemnation action if it is unable to successfully negotiate the acquisition of the subject easements with the HOA. As further stated by the City Attorney, CIC would still be required to comply with all requirements under the law prior to the filing of any eminent domain action should it become necessary for CIC to do so. Due Process The HOA further asserts that its due process rights have been violated by (1) CIC's alleged failure to comply with Code of Civil Procedure Section 1263.025, which requires the public entity to pay the reasonable costs, not to exceed $5,000, of an independent appraisal ordered by the property owner and (2) the alleged defects of the notice of public hearing and proposed resolution, As stated previously, if the resolution is adopted, CIC will be authorized to file a condemnation action should it choose to do so. Prior to the filing of such action, CIC would be required to comply with all requirements under the law including the obligation to offer to pay the reasonable costs, not to exceed $5,000, of an independent appraisal ordered by the property owner. i Mr. Cary Kalseheuer Azusa Light & Water July 8, 2008 Page 3 i The HOA asserts that the notice of public hearing and proposed resolution are defective because they do not provide adequate information regarding the scope of the project or the ince extent of the taking. The notice and resolution advises the property owner that CIC requests the City Council to adopt a resolution consenting to CIC's acquisition of a permanent 10 -foot wide easement and 25 -foot wide construction easement to construct, install, use, inspect, locate, maintain, operate, alter, add to, repair, replace, remove and/or relocate pipelines and related facilities and connections, including the right to construct, install, maintain and operate a 42" pipeline, and the right to remove, replace, and/or relocate any above -surface and sub -surface pipelines, improvements, structures, trees, shrubs, and any other growth thereon, necessary or convenient for CIC's use of the easement for water transportation and for any and all other uses and purposes, in, under, upon, over, across and through Shady Oak Court and parking lot located on the Crystal Canyon property. The notice and resolution provides adequate information regarding the scope of the project. CIC Has Studied Alternative Alignments The HOA also asserts that CIC has not studied any alternative alignments other than the proposed alignment through the Crystal Canyon property. CIC's engineers have studied other alternative alignments, and concluded that they are technically and economically infeasible for the reasons set forth in the May 14'b and July 21" City staff reports. It should also be noted that the City's own staff and engineers have studied a possible Ranch Road alignment for its pipeline and determined that such an alignment was not feasible. As you know, this is the key reason the City negotiated an easement with the Canyon View Homeowners Association located just north of the Crystal Canyon Condominium property, which the City plans to construct and install a pipeline through the Canyon View property to connect to the City's pipeline located in San Gabriel Canyon Road heading south. The Taking of the SubJect Property is not a Predetermined Outcome The HOA asserts that the City cannot engage in a fair and impartial hearing since the City has already predetermined the outcome of the hearing. The HOA asserts that no alternatives have been studied in support of its assertion. As discussed previously, as well as throughout the May 10 and July 21" City staff reports, CIC has studied alternative alignments, all of which are technically and economically infeasible and would cause a substantial hardship to CIC and other affected property owners if it were 0 0 Mr. Cary Kalscheuer Azusa Light & Water July 8, 2008 Page 4 forced to proceed through an alternative route. The City Council has required that all information concerning the scope of the project including the designs, maps, and drawings of the proposed pipeline be provided to the HOA, which CIC has already done. The City Council listened to public comments made by CIC and the HOA at both the February 4a' and May 140' public hearings, and also had the opportunity to ask numerous questions of both parties at those hearings concerning the scope of the project and the impact to both parties. CIC Has Disclosed the Full Scope of the Proiect to the HOA and the City The HOA also asserts that CIC has not disclosed the full scope of the project to the HOA and the City. CIC has previously produced hundreds of pages of documents to the HOA pursuant to the HOA's document production request including plans, designs, and drawings concerning the design and detail of the proposed pipeline. In addition, at the April 14a' mediation between the parties, CIC and the HOA participated in a joint informational session wherein the HOA and its attorneys asked CIC and its engineer numerous questions concerning the scope, design, and detail of the proposed pipeline project and easements. CIC and its engineer, as well as Chet Anderson of Azusa Light and Water, also explained to the HOA and its attorneys why alternative routes are infeasible. On May 29, 2008, CIC organized another meeting with the Crystal Canyon homeowners and HOA board members, the purpose of which was to further educate the homeowners and HOA board members about the necessity and scope of the pipeline project and to address any concerns the homeowners and HOA .board members had concerning the proposed project. Several homeowners, the HOA, and its attorneys were in attendance and again asked CIC and its engineers questions concerning the scope of the project. In addition, it is our understanding that City staff has previously reviewed and analyzed CIC's plans, designs, and drawings concerning the scope of the proposed pipeline project. CIC's Proposed Pipeline Proiect is Exemt under the California Environmental Quality Act (CEOA) The HOA asserts that CIC's proposed pipeline project is part of a larger project and therefore CIC is "piecemealing the larger project in an attempt to avoid the applicability of CEQA." The adoption of the resolution of consent is statutorily exempt M Mr. Cary Kalscheuer Azusa Light & Water July 8, 2008 Page 5 from the requirements of CEQA pursuant to Section 15282(k) of the CEQA Guidelines and Public Resources Code section 21080.21. Public Resources Code section 21080.21 states that CEQA "does not apply to any project less than one mile in length within a public street or highway or any other public right-of-way for the installation of a new pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline." The proposed pipeline project being considered by the City Council in connection with the adoption of the resolution would begin at a power facility owned and operated by the City of Pasadena just east of Ranch. Road directly across from a private road (tailed Shady Oak Court) and parking lot located on the Crystal Canyon Condominium complex. The pipeline would cross Ranch Road and traverse Shady Oak Court. The distance of the proposed pipeline under consideration by the City Council is less than one mile in length and therefore exempt from the CEQA requirements. Once the proposed pipeline is constructed and installed in Shady Oak Court, it will extend underground south on San Gabriel Canyon Road and then east on Sierra Madre Avenue where it will connect with the Rosedale pipeline just east of Dalton Avenue. It is anticipated that the City will grant CIC a license to construct, install, maintain and operate this portion of the pipeline in the City streets. The distance from the starting point in San Gabriel Canyon Road to the connection point in Sierra Madre Avenue is also less than one mile in length. It is important to note that the distance from the Pasadena power facility to the connection point is also less than one mile in length. Proposition 99 California Proposition 99 was a proposed amendment to the California Constitution that appeared on the June 3, 2008 statewide ballot Approximately 62.5% of the voters endorsed Proposition 99. Proposition 99 amends Section 19 of Article I of the California Constitution, adding section 19(b) which prohibits State and local governments from "acquiring by eminent domain an owner -occupied residence for the purpose of conveying it to a private person." Under Section 19(e)(6), the "State" means the State of California and any of its agencies or departments, and under Section 19(e)(2), "local government" means any city, including a charter city, county, city and county, school district, special district, authority, regional entity, redevelopment agency, or any other political subdivision within the State. Proposition 99 is not applicable here for several reasons. First, the adoption of the resolution of consent by the City Council, if it elects to do so, does not actually result in Mr. Cary Kalseheuer Azusa -Light & Water July 8, 2008 Page 6 the acquisition by eminent domain of an owner -occupied residence by the State or by local government. The adoption of the resolution of consent does not result in the City of Azusa acquiring the subject easements by eminent domain; rather, such adoption only gives CIC the authority to file an eminent domain action to acquire the subject easements should it become necessary for CIC to do so, and, if CIC does so, the HOA will receive just compensation for creation of the easement. In addition, CIC is a California non-profit mutual water company that is considered a quasi -public entity under Cad64 Cival Proset7ur section 1245.310 et seq. As a mutual water company and a quasi -public entity, CIC has the authority to exercise powers of eminent domain after obtaining the consent by the legislative body of the city or county within whose boundaries the subject property is Iocated. Proposition 99 also adds section 19(c) which states that section 19(b) "does not apply when State or local government exercises the power of eminent domain for the purpose of protecting public health and safety; preventing serious, repeated criminal activity, responding to an emergency; or remedying environmental contamination that poses a threat to public health and safety." Assuming arguendo that Proposition 99 is applicable to the proposed acquisition, the exclusion tinder section 19(c) of Article I of the California Constitution would govern since the easements are necessary for CIC's proposed pipeline project, which is designed to protect public health and safety as further explained in the staff reports. Very truly yours, U,,.J; cc— Christopher B. Chan CBC/fcl cc: David De Jesus, President/General Manager, Covera Irrigating Company Sonia R. Carvalho, Esq., Best, Best, & Krieger, LLP GSCovinaTrystal Canyon Fa cnm WR Ischeua.Rcsp.Obj.LAT07080H.dix Lagier�f Seheall frOsl''eY&Krr ase LLP 0 • COVING IRRIGATING CO"PANY July 10, 2008 Joseph R. Rocha, Mayor Keith Hanks, Mayor Pro -tem City of Azusa City of Azusa Administration Department Administration epartment 213 E. Foothill Blvd. 213 E. Foothill Blvd. Azusa, CA 91702 Azusa, CA 9170 Angel Carrillo,; Council Member Uriel E. Macias, City of Azusa City of Azusa Administration Department Administration 1 213 E. Foothill Blvd. 213 E. Foothill I Azusa, CA 91702 Azusa, CA 9171 Robert Gonzales, Council Member City of Azusa Administration Department 2I3 E. Foothill Blvd, Azusa, CA 9I702 Re: Crystal Canyon Homeowners Associ Request for Use of Eminent Domain Dear Mayor and Council Members: As you know, the City Council held a public hearing 1 Irrigating Company's ("CIC'7 request that the City Counc CIC's use of eminent domain to acquire a permanent wa constructioneasement) that would traverse private propel Homeowners and/or Crystal Canyon Home Owners Associl Ranch Road and San Gabriel Canyon Road north of Sierra ) .City Council voted in favor of adopting the resolution b resolution did not pass since it was not adopted by at least Council members as required under Code of Civil Procedure Member Irrigating Company May 14, 2008 to consider Covina adopt a resolution consenting to -line easement (and a temporary owned by the Crystal Canyon on (the "HOA"1 located between dre Avenue. At that hearing, the a 3-2 vote. Unfortunately, the two-thirds (213) vote of the City :tion 1245.360. At that hearing, Mayor Rocha expressed concern that t ie resolution did not identify rights the Crystal Canyon homeowners and/or HOA had in the ev nt of damages resulting from the failure of the proposed pipeline or, alternatively, damage resi Iting from CIC's continued use of the permanent easement. As stated by CIC's attorney at th hearing, CIC and the HOA have been attempting to negotiate the terms of a settlement agreei ient that would provide CIC with 146 E. COLLEGE STREET • POST OFFICE BOX 006 •OV1NA, CA B17= (626) 332.1802 •FAX LHSH) 867.33A2 City of Azusa City Council July 9, 2008 Page 2 the requested easements in exchange for the HOA receiving nonetaxy compensation and other concessions including CIC's obligation to indemnify the horqeowners and HOA in connection with any such damage. Unfortunately, the parties have been able to reach such an agreement. However, even if the parties are ultimately unable to rc 3.ch an agreement, as explained by City Attorney Carvalho at the May 14`° hearing, the law requi s that CIC be responsible for any damagd caused to the Crystal Canyon property, the homeo vners, residents, HOA, and third parties as a result of (1) CIC's construction and installation o the proposed pipeline and (2) the continued operation of the pipeline by CIC thereafter. Further ore, the City Attorney also stated that after the pipeline has been installed in the subject property CIC would be responsible for the continued maintenance and operation of the pipeline at its sole expense. Under the law, the Crystal Canyon homeowners or HOA, as the owners of the servient tenement, have no obligation to maintain or repair the easement unless the parties enter into an agreement providing otherwise; they would, how ver, have an obligation not to unreasonably interfere with CIC's use of the easement. 6 lyfilit r & Starr Cal. Real Estate (3rd ed. 2006) Easements, §15:67, p. 15-223; see also Civ. Code sect on 845; Rose v. Peters (1943) 59 Cal. App. 2d 833, 835. The owner of an easement is liable foi any damages caused to the owner of the servient tenement by the easement owner's wrongful or unreasonable acts. Miller & Starr, supra, §15:66 at p, 15-222. The owner of an easem t may improve it, or construct improvements on it, such as grading or paving, if the improvements are reasonably necessary to make use of the easement safe and convenient. But in doin so, the casement owner may not increase the burden on, or unreasonably interfere with, the use of the servient tenement by its owner. Id., § 15:67 at p. 15-225. Furthermore, CTC, as the owner of the easement, not i inly has the obligation to maintain and repair the easement, but CIC also has the duty to keep fie easement in a safe condition to prevent injury to innocent third persons. If anyone is injured E s a result of a dangerous condition of CIC's underground pipeline easement, as the owner of the asement, CIC would be liable for the resulting damages, with the possible exception, however of those engaged in wrongful or criminal conduct. Id., §15:68 at pp. 15-228 — 15-229. There are, CIC would like to assure the City Council that if any damage results to an innocent third pE rty, the homeowners, and/or HOA as a result of'CIC's use of the easement and continued r0airytenance and operation of the proposed pipeline, CIC is prepared to live up to its legal obligqdons as discussed above. Very truly yours, Covina City of Azusa City Council July 9, 2008 Page 3 cc: Christopher B. Chan, Esq., Lagerlof, Seneca], Gosney 1 Fran Delach, City Manager, City of Azusa Sonia R. Carvalbo, Esq., Best, Best & Krieger, LLP � Kruse, LLP