HomeMy WebLinkAboutOlivenhain Municipal Water District; 1996-04-22;April 22, 1996
Attention: Mr. David McCollom 01-ivenhain Municipal Water District
1966 Olivenhain Road
Exinitas, CA 92024-9761
RE:: Delivering Soils/Acquiring Easements - Olivenhain Road
The Carlsbad City Council, at its meeting of April 9, 1996, adopted Resolution No. 96-124, approving an agreement with Olivenhain Municipal Water District for the delivery of soils and acquisition of access and inundation easements for Olivenhain Road.
Enclosed please find an original agreement and a copy of Resolution No. 96-124 for your files.
ALETHA Lh L. dfl- RAUTENKRANZ, CMC
City Clerk
ALR: ijp
Enclosures
-~__ 1200 Carlsbad Village Drive - Carlsbad, California 92008-1 989 - (61 9) 434-2808
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AGREEMENT FOR
RECEIVING SOILS AND DEDICATING EASEMENT
OLIVENHAIN ROAD WIDENING
PROJECT NO. 3466
THIS AGREEMENT, made and entered into as of the /Ze day of w, , 19&,
by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as
"City", and OLIVENHAIN MUNICIPAL WATER DISTRICT, hereinafter "District", a municipal water
district organized and operating pursuant to California Water Code Section 71000 et seq. This
agreement shall become effective as of 4244, /& , 1996.
RECITALS
1. The District owns 8.75 acres of land (hereinafter "Property"), as more particularly
described in Exhibit "A attached hereto and incorporated herein by reference, located south 01
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 the
construction of a flood water detention basin and associated appurtenances.
3. City conducted an Environmental lmpact Report (entitled "Olivenhain Roac'
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 would
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 th
above-referenced property through the public comment process to the City's Environmentz
lmpact Report.
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5. City has requested that District grant access easements across District's property
for access to City's flood water detention basin and associated appurtenances as well as
inundation easements to allow City to flood certain portions of the District's property above the
current 100-year flood plain. It is the express intention of the parties that this agreement fix the
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 basin
and associated appurtenances and mitigate the impacts of this project so as not to adversely
constrain the District's ability to develop this property at a future date and carry efficient delivery
of services to the general public.
6. District has agreed to grant the appropriate inundation easement for certain flood
control inundation areas and ingress easements to City and in exchange the City agrees to
maintain the flood water detention basin and associated appurtenances in a prudent mannei
together with the obligation of the City to install a gate in an appropriate location in the District's
fence adjacent to Olivenhain Road as well as a gate adjacent the detention basin at the southern
boundary fence, said locations to be approved by District.
7. District wishes to receive soils sufficient to increase the elevation of certain ION
lying areas as more particularly described on Exhibit "B" attached hereto and incorporated herein
by reference to be delivered by City's contractor excavated as a result of road improvements tc
be made to Qlivenhain Road east of El Camino Real. The imported soils shall be free frort
organic matter and other deleterious substances and shall not contain rocks or lumps larger thar
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.
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8. In exchange for soils to be delivered to the District's property, the District will, at
its expense, be responsible for the placement and compaction of the received soils. Districi
agrees to increase the elevations of its lands to a minimum of 108-foot contour msl to avoid
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 easemenl
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 hereto
and included herein by reference, shall extend approximately from the toe of the proposed fill to
a maximum elevation of 108 feet msl on the face of the fill and in all other areas of the District's
property at or below 108 feet msl. In exchange for this inundation easement, City agrees to allow
the District to revegetate the fill slope and other disturbed areas of the District's property with the
appropriate native species. District shall retain the right within this inundation easement on
District lands to plant native trees as a screen to separate District's property from the detentior
basin and associated wetlands District agrees to move the existing chain link fence from thg
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, construction
operation, maintenance, and existence or failure of the fill.
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COVENANTS
1. Obliaations of Citv
1.1. City shall provide a sufficient amount of soil to construct a fill as more
particularly described on Exhibit "B" attached hereto and incorporated herein by reference, said
soils to be delivered to Property at no expense to District.
1.2. City shall contract for the above soils delivery by providing the appropriate
contractual specifications to City's contractor in the contract documents for construction of the
improvements.
1.3. City's contractor on Project shall be obligated to coordinate with the District
to effect the proper delivery of the soils to Property.
1.4. City shall be responsible to maintain the flood detention basin and
associated appurtenances in such a prudent manner so as not to adversely impact the District's
Property.
1.5. Following completion of construction, City shall be responsible to install
chain link fence gates on the existing northern and southern Property fences to secure access
to the detention basin.
1.6. City shall provide for the appropriate indemnification clauses to be included
in the contractor's contract to indemnify and hold harmless District from and against all claims,
damages, losses, expenses, and other costs, including costs of defense and attorneys' fees,
arising out of or resulting from or in connection with the performance of the work except as may
be directly attributable to the negligence of the District, its personnel, its consultants, and
contractors.
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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.
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3.3. Attornev’s Fees. In the event any action or proceeding is initiated to
challenge, invalidate, enforce, or interpret any of the terms of this agreement, the prevailing party
shall be entitled to all attorney’s fees and litigation fees, costs, and expenses in addition to any
other relief granted by law. This provision shall apply to the entire agreement.
3.4. Entire Agreement. This agreement, together with all exhibits attached
hereto, contains all representations and the entire understanding between the parties with resped
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 this
agreement, are intended to be replaced in total by this agreement and its exhibits. City warrants
and represents that no District representative has made any oral representations or oral
agreements not relied upon any oral statements or promises made by any District representative
in executing this agreement.
3.5. Bindinq Effect. This agreement shall inure to the benefit of and be binding
upon the parties and their respective purchasers, successors, heirs, or assigns.
3.6. Mutual Indemnification. City and District hereby mutually indemnify and
hold harmless each entity from and against all claims, damages, losses, expenses, and other
costs, including costs of defense and attorney’s fees, arising out of or resulting from or in
connection with the performance of the work, except as may be directly attributable to negligence
of each party.
3.7. Binding Arbitration. All disputes arising from or related in any way to this
agreement, whether based upon contract, tort, federal, or state statutory law, or common law,
shall be submitted to binding arbitration in accordance with the rules and procedures of the
American Arbitration Association, San Diego Branch. The decision of the arbitrator shall be final
and binding, except that the prevailing party shall be entitled to obtain confirmation of the award
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in the Superior Court, North County Judicial District, County of San Diego. The parties hereby
expressly waive all rights to a trial by judge or jury and all rights of appeal except the right of the
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 hereby
expressly waived. The arbitrator shall have the express power to grant general and punitive
damages, equitable relief, and such other forms of relief as are determined appropriate by the
arbitrator, including remedies determined appropriate by the arbitrator enforced prior to
arbitration awards. Discovery shall be limited to that discovery expressly authorized by the
arbitrator in the arbitrator’s discretion. The prevailing party shall also recover all reasonable
attorney’s fees, court costs, expert fees and costs, and all arbitration fees and expenses as fixed
by the arbitrator.
3.8. Unenforceable Provisions. The terms, conditions, and covenants of this agreement
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 any
applicable claw or regulation, the remaining provisions shall nevertheless be carried into full force
and effect and remain enforceable.
3.9. No Waiver. The failure of either party to enforce any term, covenant, or condition
of this agreement on the date it is to be performed shall not be construed as a waiver of that
party’s right to enforce this, or any other, term covenant, or condition of this agreement at any
later date or as a waiver of any term, covenant, or condition of this agreement.
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3.10. Notices. All letters, statements, or notices required pursuant to this agreemenl
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. Pat Entezari
CITY OF CARLSBAD
2075 Las Palmas Drive
Carlsbad, CA 92009-1 576
Mr. David C. McCollom (General Manager)
OLIVENHAIN MUNICIPAL WATER DISTRICT
1966 Olivenhain Road
Encinitas, CA 92024
Executed by Contractor this d@ z, day of
OLIVENHAIN MUNl Cl PAL
ATTEST:
By:
(sign here)
ALETHA L. RAUT
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. If
only one officer signs, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering that officer to bind the corporation.)
APPROVED AS TO FORM:
RONALD R. BALL
.Q' L QeptAyCity Attorney
Lf. 11- 96.
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’ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
personally appeared
subscribed to the within instrument and ac
knowledged to me that he/- execute(
the same in his/ha#reir authorize(
capacity(iw), and that by his/he#hei
signatureo on the instrument the personw
or the entity upon behalf of which tht
personw acted, executed the instrument
Though the data below is not required by law, it may prove valuable to persons relying on the document and could preve
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
0 AlTORN EY-IN-FACT
0 GUARDIAN/CONSERVATOR
NUMBER OF PAGES
01 993 NATIONAL NOTARY ASSOCIATION 8236 Rernrnet Ave , P 0 Box 71 84 Canoga Park, CA 9
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EX H I BIT "A"
THAT PORTION OF LOT 13 OF THE SUBDIVISION OF RANCHO LAS ENCINITAS, IN
THE CITY OF CARLSEAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP ND. 848, FILED IN THE UFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY JUNE 27, 1890, MORE PARTICULARLY DESCRIBED AS
FOLLOWS :
BEGINNING.AT THE NORTHWEST CORNER OF SAID LOT 13, SAID NORTHWEST
CORNER BEING THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THE
NORTiiERLY LINE OF SAID LDT 13 NORTH 87°0'3'30" EAST, 1,216.65 FEET TO
THE CENTERLINE OF ROAD SURVEY 454-A AS DESCR1,EED IN DEED TO THE COUNTY
DEEDS, RECORDS OF SAID COUNTY, ALSO KNOWN AS RANCHO SANTA FE ROAD:
THENCE LEAVING SAID NORTHERLY LINE OF LOT 13 SOUTHERLY ALONG THE
CENTERLINE DF SAID ROAD SURVEY 454-A SOUTH 20°09'53" EAST , 280.84
FEET: THENCE LEAVING SAID CENTERLINE OF ROAD SURVEY 454-A WESTERLY
ALONG A LINE PARALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH t37°0.3'301'
WEST, 518.71 FEET; THENCE LEAVING SAID PARALLEL LINE SOUTHERLY
SOUTH 02°55'30" EMT, 150.00 FEET; THENCE WESTERLY kLOtG A LINE
PGRALLEL TO SAID NORTHERLY LINE OF LOT 13 SOUTH 87°0%'30'i WEST,
291.55 FEET; THENCE LEAVING SAID PARALLEL LINE NORTHERLY NORTH
02 O56 ' 30 'I WEST, i50.o~) FEET; THENCE WESTERLY Atam 'A LINE PARALLEL
TO SAID NORTHERLY LINE OF LOT 13 SOUTH '87°03'30" WEST, 490.N) FEET
TO THE NESTEELY LINE OF SA12 LOT 13; THENCE LEAVING SAID PARALLEL LINE NORTHERLY ALONG SAID WESTERLY LINE OF SAID LOT 13 NORTH 02°5(5'30'1
WEST, 266.25 FEET TO THE TRUE POINT OF BEGINNING.
OF SAN DIEGO RECORDED DECEMBER 19, 1930, IN BOOK 1839, FAGE 356 OF
EXHIBIT "Aff
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