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HomeMy WebLinkAbout1996-04-09; City Council; Resolution 96-124r 1 2 3 4 5 6 7 8 9 10 11 ’ 2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 m 0 RESOLUTION NO. 96-124 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT WITH OLIVENHAIN MUNICIPAL WATER DISTRICT (OMWD) FOR SOILS DELIVERY AND ACCEPTING ACCESS ROAD AND INUNDATION EASEMENTS FOR BLIVENHAIN ROAD WIDENING, PROJECT NO. 3466. WHEREAS, the City Council of the Clty of Carlsbad hereby finds it necessary, d and in the public interest to widen Olivenhain Road; and WHEREAS, an agreement with Olivenhain Municipal Water District (OMWD) delivery, access road and inundation easement dedications for the Olivenhain Road prc been prepared and submitted hereto; and WHEREAS, OMWD will receive, place, and compact soils from the Olivenha Project over the designated areas of its property; and WHEREAS, OMWD will dedicate to the City inundation and access road easerr NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of C California, as follows: 1. That the above recitations are true and correct. 2. That the Mayor is hereby authorized and directed to execute said agreement l as Exhibit 3. Ill Ill //I Ill Ill Ill Ill Ill Ill r 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 m 0 4. That the City Clerk of the City of Carlsbad is hereby authorized and dirc forward a copy of the executed agreement to Olivenhain Municipal Water District, Atten David McCollom, General Manager, 1966 Olivenhain Road, Encinitas, California, 920244 a copy to the Engineering Department. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City held on the 9th day of APRIL , 1996 by the following vote, to wit: AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, Hall NOES: None ABSENT: None (SEAL) a 0 \ AGREEMENT FOR RECEIVING SOILS AND DEDICATING EASEMENT OLIVENHAIN ROAD WIDENING PROJECT NO. 3466 THIS AGREEMENT, made and entered into as of the /Saday of * , 19% by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to a: "City", and OLIVENHAIN MUNICIPAL WATER DISTRICT, hereinafter "District", a municipal wate district organized and operating pursuant to California Water Code Section 71000 et seq. Thi$ agreement shall become effective as of & . /a , 1996. / RECITALS 1, The District owns 8.75 acres of land (hereinafter "Property"), as more particular1 described in Exhibit "A attached hereto and incorporated herein by reference, located south c the District's headquarters buildings, south side of Olivenhain Road, in the City of Carlsbad. 2. City proposes a project involving a realignment of Olivenhain Road including th construction of a flood water detention basin and associated appurtenances. 3. City conducted an Environmental Impact Report (entitled "Olivenhain Roal Alignment" Case No. 90-259) on the Project and now desires to implement the proposed projec a portion of which requires the taking of District land. As a part of the improvements, the Cit proposes a flood control element which includes a "detention basin and dikes" which woulc without some earthwork improvements, overlap the above-referenced District property. 4. District has placed City on notice as to District's future expansion plans for tt above-referenced property through the public comment process to the City's Environment Impact Report. w W 5. City has requested that District grant access easements across District's propert1 for access to City's flood water detention basin and associated appurtenances as well a: inundation easements to allow City to flood certain portions of the District's property above thc current 100-year flood plain. It is the express intention of the parties that this agreement fix tht ultimate location of the proposed detention basin, dikes, as well as the appropriate easements access roads and gates which will allow City to adequately maintain the flood detention basil and associated appurtenances and mitigate the impacts of this project so as not to adversel! constrain the District's ability to develop this property at a future date and carry efficient delivey of services to the general public. 6. District has agreed to grant the appropriate inundation easement for certain flooc control inundation areas and ingress easements to City and in exchange the City agrees tc maintain the flood water detention basin and associated appurtenances in a prudent manne together with the obligation of the City to install a gate in an appropriate location in the District': fence adjacent to Olivenhain Road as well as a gate adjacent the detention basin at the souther1 boundary fence, said locations to be approved by District. 7. District wishes to receive soils sufficient to increase the elevation of certain lov lying areas as more particularly described on Exhibit "8" attached hereto and incorporated hereii by reference to be delivered by City's contractor excavated as a result of road improvements tc be made to Olivenhain Road east of El Camino Real. The imported soils shall be free fron organic matter and other deleterious substances and shall not contain rocks or lumps larger thai six (6) inches in the greatest dimension. District's consultant will elevate the proposed importec soils material prior to placement at District expense. The City shall not be obligated to delive more than the estimated number of cubic yards of material shown on Exhibit "B" attached heretc and incorporated herein by reference unless both parties mutually agree to greater deliveries. 2 m W 8. In exchange for soils to be delivered to the District’s property, the District will, ai its expense, be responsible for the placement and compaction of the received soils. Distric agrees to increase the elevations of its lands to a minimum of 108-foot contour msl to avoic inundation from City’s flood detention basin and associated appurtenances. 9. City wishes to receive an inundation easement for inundation of slope areas along the southwestern exposure of the proposed fill on District property, and an inundation easemen for lands at or below elevation 108 msl across the southeastern corner of the District property said inundation easement as more particularly described in Exhibits “C“ and “D, attached heretc and included herein by reference, shall extend approximately from the toe of the proposed fill tc a maximum elevation of 108 feet msl on the face of the fill and in all other areas of the District’: property at or below 108 feet msl. In exchange for this inundation easement, City agrees to allov the District to revegetate the fill slope and other disturbed areas of the District’s property with thc appropriate native species. District shall retain the right within this inundation easement 01 District lands to plant native trees as a screen to separate District’s property from the detentioi basin and associated wetlands District agrees to move the existing chain link fence from thc current District property line to top of the slope of the proposed fill at District’s expense. 10. District and City will each indemnify or hold harmless each other’s officers, agents engineer and employees, against any and all claims, demands, damages costs, expenses o liabilities arising out of the inundation, fill placement, stability of fill material design, constructior operation, maintenance, and existence or failure of the fill. 3 0 COVENANTS I 1. Obligations of Citv 1.1. City shall provide a sufficient amount of soil to construct a fill as mor( particularly described on Exhibit "8" attached hereto and incorporated herein by reference, saic soils to be delivered to Property at no expense to District. 1.2. City shall contract for the above soils delivery by providing the appropriat contractual specifications to City's contractor in the contract documents for construction of th improvements. 1.3. City's contractor on Project shall be obligated to coordinate with the Distric to effect the proper delivery of the soils to Property. 1.4. City shall be responsible to maintain the flood detention basin an1 associated appurtenances in such a prudent manner so as not to adversely impact the District' Property. 1.5. Following completion of construction, City shall be responsible to insta chain link fence gates on the existing northern and southern Property fences to secure acces to the detention basin. 1.6. City shall provide for the appropriate indemnification clauses to be include in the contractor's contract to indemnify and hold harmless District from and against all claim: damages, losses, expenses, and other costs, including costs of defense and attorneys' fee: arising out of or resulting from or in connection with the performance of the work except as ma be directly attributable to the negligence of the District, its personnel, its consultants, an contractors. 4 0 0 2.1. District shall grant the inundation and access easements as required by City to allow City to access and maintain City facilities, shown as Exhibits "C" and "D", and "E" and "F", attached hereto and incorporated herein by reference. Exhibit "B" containing two (2) sheets are herein schematic and shall be corrected to the exact metes and bounds legal descriptions following completion of the fill placement. District shall then have prepared the appropriate easement documents and descriptions as required. 2.2. District shall be responsible for the proper placement and compaction of the soils on Property as delivered to Property by City's contractor. Said fill shall have slope of no steeper than a 2:l ratio. District must be prepared to accept and place the soil as delivered so as not to hold up or impede City's contractor. If District cannot receive soils deliveries, City shall have no responsibility to deliver the soils. 2.3. District shall relocate the existing fence on southern Property boundary to . the top of slope as created by the placement of soils spoils. 2.4. District shall be responsible to revegetate the fill slope area with the appropriate native species of landscaping upon completion of placement of soil. 3. Miscellaneous Provisions 3.1. Venue. In the event of any legal or equitable proceeding to enforce or interpret the terms and conditions of this agreement, the parties agree that venue shall lie only in the federal or state courts in or nearest to the North County Judicial District, County of San Diego, State of California. 3.2. Modifications. This agreement may not be altered in whole or in part except by a written modification approved by the Board of Directors of the District and executed by all the parties to this agreement. 5 W w 3.3. Attornev’s Fees. In the event any action or proceeding is initiated tc challenge, invalidate, enforce, or interpret any of the terms of this agreement, the prevailing part! shall be entitled to all attorney’s fees and litigation fees, costs, and expenses in addition to an! other relief granted by law. This provision shall apply to the entire agreement. 3.4. Entire Agreement. This agreement, together with all exhibits attachec hereto, contains all representations and the entire understanding between the parties with respec to the subject matter of this agreement. Any prior correspondence, memoranda, or agreements whether or not such correspondence, memoranda, or agreements are in conflict with thi agreement, are intended to be replaced in total by this agreement and its exhibits. City warrant and represents that no District representative has made any oral representations or or2 agreements not relied upon any oral statements or promises made by any District representativc in executing this agreement. 3.5. Bindinq Effect. This agreement shall inure to the benefit of and be bindin! upon the parties and their respective purchasers, successors, heirs, or assigns. 3.6. Mutual Indemnification. City and District hereby mutually indemnify anc hold harmless each entity from and against all claims, damages, losses, expenses, and othe costs, including costs of defense and attorney’s fees, arising out of or resulting from or ii connection with the performance of the work, except as may be directly attributable to negligencc of each party. 3.7. Bindinq Arbitration. All disputes arising from or related in any way to thi agreement, whether based upon contract, tort, federal, or state statutory law, or common Ian shall be submitted to binding arbitration in accordance with the rules and procedures of thi American Arbitration Association, San Diego Branch. The decision of the arbitrator shall be finz and binding, except that the prevailing party shall be entitled to obtain confirmation of the awarc 6 0 W in the Superior Court, North County Judicial District, County of San Diego. The patties hereb) expressly waive all rights to a trial by judge or jury and all rights of appeal except the right of thc prevailing party to obtain judgment confirming the award and the right to enforce this judgment All rights to challenge the award of the arbitrator in any federal or state court are hereb) expressly waived. The arbitrator shall have the express power to grant general and punitivt damages, equitable relief, and such other forms of relief as are determined appropriate by tht arbitrator, including remedies determined appropriate by the arbitrator enforced prior tc arbitration awards. Discovery shall be limited to that discovery expressly authorized by thc arbitrator in the arbitrator’s discretion. The prevailing party shall also recover all reasonablt attorney’s fees, court costs, expert fees and costs, and all arbitration fees and expenses as fixe( by the arbitrator. 3.8. Unenforceable Provisions. The terms, conditions, and covenants of this agreemen shall be constructed whenever possible as consistent with all applicable laws and regulations To the extent that any provision of this agreement as so interpreted, is held to violate an! applicable claw or regulation, the remaining provisions shall nevertheless be carried into full fora and effect and remain enforceable. 3.9. No Waiver. The failure of either party to enforce any term, covenant, or conditior of this agreement on the date it is to be performed shall not be construed as a waiver of tha party’s right to enforce this, or any other, term covenant, or condition of this agreement at an! later date or as a waiver of any term, covenant, or condition of this agreement. 7 0 w 3.10. Notices. All letters, statements, or notices required pursuant to this agreement shall be deemed effective upon receipt when personally served, transmitted by facsimile machine, or sent certified mail, return receipt requested, to the following addresses: Mr. David C. McCollom (General Manager) OLIVENHAIN MUNICIPAL WATER DISTRICT 1966 Olivenhain Road Encinitas, CA 92024 Mr. Pat Entezari CITY OF CARLSBAD 2075 Las Palmas Drive Carlsbad, CA 92009-1 576 * 1g2!cm Executed by Contractor this &%e day of OLlVENHAl N MUNlCl PAL j3)q.l: $3 r, ]VI" &J( L*4 (-3 g-[<J c/tL:J /q&.%Kq f, k. ATTEST: fl (print name/title) J (sign here) 0 - ad?. QQ* By: ALETHA L. RAUTENKRANZ City Clerk (print name/title) (Proper notarial acknowledgment of execution by Contractor must be attached.) (President or vice-president and secretary or assistant Secretary must sign for corporations. only one officer signs, the corporation must attach a resolution certified by the secretary c assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: RONAL R. BALL cityL.Q -Ekpt&y City Attorney c=-ec BY ct -//-96 . 8 e CALIFORNIA ALL-PURP d E ACKNOWLEDGMENT Countyof GW B-0 Ka.GdTMe,' c&ury &a @*fl NAME, TITLE OF OFFICER - E G ,'JANE DOE, NOTARY PUBLIC pww % /%% before me, NAME(S) OF SIGNER(S) DATE personally appeared ersonally known to me - OR - 0 proved to me on the basis of satisfactory evidenc to be the person($) whose name(fl is/a subscribed to the within instrument and ai knowledged to me that he/s4wt#kyexecute the same in his/h-e&heir authorizE capacity(i+, and that by his/kar/lho signature(d on the instrument the person(s or the entity upon behalf of which tt- persong) acted, executed the instrumen Though the data below IS not required by law, it may prove valuable to persons relying on the document and could prevl fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENl TITLE OR TYPE OF DOCUMENT AlTORNEY-IN-FACT NUMBER OF PAGES 0 GUARDIANKONSERVATOR DATE OF DOCUMENT /@4z- SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE -___ __ __. _____ ___ 01993 NATIONAL NOTARY ASSOCIATION 8236 Rernmet Ave P 0 Box 7184 * Canoga Park CA 91 e 0 I EX H I B IT ''A" THAT FORTION OF LOT 13 OF THE SUBDIVISION OF RANCHO LAS ENCINITAS, IN THE CITY OF CARLSBAD, COUNTY bF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 848, FILED IN THE OFFICE OF THE CDUNTY RECORDER OF SAN DIEGO COUNTY JUNE 27, 1890, MORE PARTICULARLY DESCRIBED AS FOLLOWS : BEGINNING.AT THE NORTHWEST CORNER OF SAID LOT 15, SAID NORTHWEST CORNER BEING THE TRUE FOINT OF BEGINNING; THENCE EASTERLY ALONG THE NOfiTnERLY LINE OF SGID LOT 13 NORTH 87°0Z'3011 EAST, 1,216.65 FEET TO THE CENTERLINE OF ROAD SURVEY 454-A AS DESCR1,BED IN DEED TO THE COUNTY OF SAN DIEGO RECORDED DECEMBER 19! 1930, IN BOOK 1839: F'AGE 356 OF DEEDS, RECORDS OF SAID COUNTY, ALSO KNOWN AS RArdCHO SAtdTA FE ROAD; TliENCE LEAVING SAID NORTHERLY LINE OF LOT 13 SOUTHERLY ALONG THE CENTERL I NE OF SA ID ROAD SURVEY 454-4 SOUTH 20'09 ' 53 I' EAST , 280.84 FEET: THENCE LEAViIdG SAID CENTERLINE OF F:OAD SLIfiVEY 454-A NESTERLY ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH 87°03'3rj" WEST, 518.71 FEET; THENCE 1EAViNG SAID PARALLEL LINE SOCITP,ERLY SOUTH 02°56',70" EAST, 150.00 FEET; THENCE WESTERLY ALONG A LINE PfiRALLEL TO SAID NOKTHERLY LINE OF LOT 13 SOUTH 87°03'30" WEST, 291.53 FEET; THENCE LEAVING SAID FARALLEL LINE NORTHERLY NOETli (?7i056'30" WEST 5 150.00 FEET; THENCE WESTERLY ALUNG 'A LINE PARALLEL TO SAID NORTHERLY LINE Of LOT 13 SOUTH 87'03'30i8 WEST, $90.00 FEET TO THE WESTERLY LINE OF SAID LOT 13; THENCE LEAVING SAID PARALLEL LINE t4ORTHEF:LY ALONG SAID WESTERLY LINE OF SAID LOT 1.5 NORTH (:~2"50'30" WEST, 268.25 FEET TO THE TRUE POINT OF BEGINNING. 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