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HomeMy WebLinkAbout1979-11-20; City Council; 6078; La Costa Land Co sewer availabilityCITY OF CARLSBAD Ini tia? : AGENDA BILL NO. 0 78 DATE : November 20, 1979 DEPARTMENT: City Manager SUBJECT: LA COSTA LAND COMPANY SEWER AVAILABILITY IN SAN MARCOS COUNTY WATER DISTRICT STATEMENT OF THE MATTER On November 6, 1979 the City Council adopted Ordinance No. 9539 (effective December 6, 1979) which allows processing of discretionary approvals if an applicant submits a letter from a sewer service district indicating that sewer service will be available to serve the development and the City Council finds that it is reasonable to expect that sewer service will be available to serve the development concurrent with need. In order to make the findings in the case of the area known as La Costa Northeast the Counci 1 has: 1. A letter from the San Marcos 'County Water District indicating conditional sewer 2. The agreement between the San Marcos County Water District and the La Costa Land avai labi 1 i ty. Company guaranteeing sewer capacity in the reactivated and upgraded San Marcos County Water District Wastewater Reclamation Project. a land disposal concept for up to 500,000 gallons per day of treated effluent from the San Marcos County Water District Wastewater Reclamation Project. 3. An indication from the Regional Water Quality Control Board that they have approved EXHIBITS 1. La Costa Northeast Map 2. Letter from San Marcos County Water District to City, dated August 17, 1979 3. 4. Memo to City Manager from City Engineer, dated November 15, 1979 Agreement for Design and Construction of Reclamation Facil ities RECOMMENDAT I ON That Council find that sufficient capacity will be available subject to La Costa Land Company fulfilling its obligations to the San Marcos County Water District and subject to City approval of the irrigation use program for each subsequent development. > Council Action: 11-20-79 The matter was continued. 11-28-79 Council directed staff to return matter after necessary discretionary approvals for San Marcos have been acted upon by Counci /a-.r-7r cd & - ' PRESIDENT OBY BLANCHARD VICE PHESIUENT STANLEY A. MAHR DIRECTORS HARRY €3. KEEeAllGH MARGARET E. FEHGUSON LEO F. SMITH GENERAL MANAGER JAMES F. MCKAY ATTDRHLY VERNON A. PELTZER t- r sari, ira1arcos county c?da'o.ir;.r district F1)-lC>NE (114) 744 0460 788 SAN MARCOS tlUULEVAR0 SAN MARCOS, CALIFORNIA 920b9 August 17, 1979 RICK ENG. Date Received AUG 2 2 1979 City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 Attenti on : klr. James Hagaman Di rector of Pl anni ng Gentlemen: Re: Sewer Service - La Costa Northeast The La Costa Land Company (Applicant) the fee owner of the land shown on Exhibit "A" marked Parcels 1, 2, 3, 4 & 5 has requested the San Marcos County !dater District (District) to provide a sewer service avai labi li ty letter for the referenced property. Subject property is located within the District and within the sewer service improvements as follows: L , a:.' A portion of Parcels 1, 2, 3 All of Parcels 4 & 5 To be eligible for sewer service, applicant will be required to meet the fol lowing condi ti ons : 1. Complete the annexation to sewer Improvement Districts 1, 2 & 6 those portions of Parcels 1, 2 & 3 lying out- si de of the improvement districts boundary. Construct all on-si te and off-si te sewer facilities to connect the proposed project to District's facilities and dedicate the faciliites to the District in accord- ance wi th the Di strict ' s Standard Rules and Regul ati ons. 2. 3. Pay all fees required by the District on demand by the Di s tri ct . C. c. ,- /-. 9. . A _- 4 sari iarcos county WG .x districi- Ci ty of Carl s bad - 2- August 17, 1979 4. Perform the terms of the "Agreement for Design and Construction of the Reclamation Facilities Between La Costa Land Company and the San Marcos County Water District" with effective date of March 19, 1979, (Reclamation Agreement), to provide the fac- ilities and capacity to handle sewage for this project. Subject to the foregoing conditions this District will provide the project up to and including 750 belling Unit Equivalents (D.U.E.'s) (computed at the rate of 250 gallons per day per D.U.E.) as follows: Parcel I (PRU~HEMC) 92 D.U.E.'S - Parcel Z(.~Wnt;uwc G~TE~ 100 'I Parcel ~CPI~A~OLJ~~U~~ 220 'I Parcel ~(M~ADJw-~~) 300 'I Parcel 5 c%urw mw*w*k) 38 'I. - Actual connections to the system will be scheduled and provided in accordance with the terms of the Reclamation Agreement. It is understood by Applicant that this letter is based upon exist- ing conditions and is issued for planning purposes and that the conditions precedent specified above must be satisfied before service will be provided. -"A This commitment to provide service has been made by the Board of applicable rules, regulations, ordinances, procedures and policies of the District, including those relating to fees and charges, the California Environmental Quality Act of 1970, as amended, the applicant's agreement to construct any on-si te and off-si te fac- ilities, together with the applicant's providing security as required by the District for such construction. This letter of availabil*ity pertains solely to the proposed project and is not transferable to any other project, is not transferable to any other parcel of land, and is not transferable to any other applicant. ' Directors and is subject to the Applicants' compliance with the Any act in violation of this provision, whether or not VIA11 II -. URSIC TO,. , LIFC . , , blEALlb+. , . AND PI?OGl?E55. . , City of Carlsbad - 3- August 17, 1979 legally effective to accomplish a transfer, automatically renders ‘ this letter null and void. This letter is void and of no further force and effect on or after June 1, 1982. Sincerely, General Ma er J FM/mds Encls . cc: La Costa Land Company Rick Engineering J Vernon A. Peltzer File -. WATEn - OnSIC TO.. . LIFE , , . HEAL1 11.. .AND PROGRCSS. ~ ~ ~~ -. ____ __._ . - . . . .. . AG REEPlENT FOR DESIGN AND CONSTRUCTION OF RECLAMATION FACILITIES BETQEEN LA COSTA LAND CQMPAIJY AND SA14 PIIARCOS COUNTY WATER DISTRICT fr I THIS AGREEMENT is entered into by and between LA COSTA LAND COMPANY ("324 COSTA"), an Illinois corporation authorized to do . business the State of California'and THE SAN YARCOS COUNTY . . WATER DISTRICT ("DISTRICT"), a County Water District created and operating pursuant to 530000 et; seq. of the State of California Water Code- I .. R-E-C-I-T-A-L-s 1- LA COSTA is 'the 'owner of certain reai property within the SAN MARCOS COUNTY WATER DISTRICT which LA COSTA desires'to develop for residential -and other purposes. . . 2, LA COSTA is unable to develop this property at this time because of limited sewage treatment facilities and capacity in -. the area, 3. At this time the DISTRICT does not have capacity to provide sewage service to LA COSTA'S property. 4. The DISTRICT is willing to 'permi, reactiva ion and expansion of DISTRICT'S treatment facilities to provide additional- capacity,' with the understanding that a portion of this capacity is to be reserved for the sole and exclusive use of LA COSTA as provided in this agreement and the remainder of the capacity is to be avail- able to LA COSTA and others to the extent provided fn this agree- ment and'in the rules and regulations of the DISTRICT as may be adopted from tine to time. 5-.- This to provide the both LA service Agreement for wastewater reclamation is intended DISTRICT with additional wastewater capacity for -- COSTA and other property owners within the DISTRICT'S area to the extent and in the manner described in this Agreement. It is mutually understood that without the reservation .of capacity for LACCOSTA as provided in this Agreement, LA COSTA would not enter into this Agreement and the availability of such capacity to of LA COSTA. .. LA as _. COSTA is a condition precedent'to all obligations' subsequently described in this Agreement. .. ... .. _.- -. .. . .. .. 6, LA COSTA is willing to renovate the existing wastewater treatment facility of the DISTRICT and to design and construct ' additional facilities at the DISTRICT'S plant site; upon completipn, .- the DISTRICT is to have the capacity to reclaim an average daily dry weather flow of GOO,OOO gallons of wastewater (g-p.d./a,d.d,w,f-), .- I . '* - 7, In adddition, LA COSTA is willing to design, construct and dedicate to DISTIIICT, a reclamation Water Storage reservoir for the DISTRICT with a minimum storage capacity of 54,000,000 . gallons exclusive of surface water runoff SO that the DISTRICT will have a reserve storage capacity for a period of ninety (90) days at the anticipated flow of 600,OOO g.p.d./a-d.d.w.f, All - -_ of the foregoing facilities described in Section 6 and 7 of this Agreement are "the Project", as more. specifically described in Exhibit "A" as items 1, 2 and 3. In addition, LA COSTA intends to provide *facilities in conjunction with that reservoir for the use (disposal) It is acknowledged . that while this use (disposal) is not part of "the Project"c assureii of 500,000 g-p-d-/a.d.d.w.f. of reclaimed water- disposal is an essential element of a progrant to attain a permit to operate the system. This essential element of the program is not included as part of "the Project" because LA COSTA and DISTRICT -2- intend that LA COSTA will provide this use of the reclaimed water on LA COSTA'S own intended land development programs- components of the Proposed San Marcos Reclamation Facility (Items 1,- 2 and 3 comprise the Project) are listed in Exhibit "A" to this kgree- The technical ment, r , -. 8, LA COSTA intends to bear all initial costs to design, renovate, and construct the Project. The DISTRICT intends to reim- burse LA COSTA for these costs by charging users of the facilities a service connection fee and by delivering as herein provided a portion of this fee to LA COSTA. when all capacity in the Project has been sold or, on-the expiration of the ten (10) year defined period, whichever occurs first, even though LA COSTA may not have been reimbursed for all costs or interest at the end of the payback period, This payback is to terminate - - -. 9, LA COSTA intends to sell to the DISTRICT-such reax property as will be necessary for the proposed storage reservoir, LA COSTA is to be entitled to repurchase this property in the event that DISTRICT-has terminated its use of the reservoir for reclamation use within ten (10) years from the date the option to purchase has been recorded, 10, DISTRICT intends to reserve for the sole and exclusive use of LA COSTA 200,000 g.p-d./a-d.d,w-f. of capacity from the Project which accommodates 800 dwelzing .unit equivalents (DUES) for the ten (10) year option period for development of LA COSTA'S property (located within DISTRICT'S sewer service area) by LA COSTA or its transferees, 11, LA COSTA has agreed to supply the DISTRICT in conjunction with the proposed 54,000,000 gallon reservoir with a disposal area for the reclaimed water sufficient to dispose of 500,000 .. -3- Revised 3120179 12, DEFI.NITI0NS , FJhenever the following terms occur in this Agreement, the ._ i meaning shall be interpreted as follows: -- - I 12.1 'Acceptance '-- The formal action by the DISTRICT accepting the project or- a geverable portion of the project as being complete, r .. .. 12-2 Average Daily Dry Weather Flow -- -250 gallons. per day per dwelling unit equivalent, .. 12.3 Project -- The existing DISTRICT sewage treatment plant, to be rehabilitated and expanded to a capacity of 600,000 g,p,d,/a.d,d,w, the 54,000,000 gallons of surface starage reservoir and dam, and the pumping/piping system for conveyance of effluent from the . sewage treatment plant to the reservoir- SEE: Exhibit "A" (Items 1, 2 6r 3) \ *. .. -- 12.4 Project Cost- -- Includes all dollar costs of "the project" for engineering and environmental studies, testing, surveying, design, inspection and construction of the Project; it also includes, but is not limited to, cost of land and rights-of-way, legal and administrative expenses associated with the Project, the cost of borrowed funds, insurance and bond premiums, and expenses for meetings with and presentations to government. agencies which permit or otherwise regulate project design, construction or operation, Reimbursable Project costs shall be reduced by the amount of any -- -< I\ '\ ,* 2 ' contribution or prepayment by DISTRICT or parties other than LA COSTA and such contribution or prepayment may be made by DISTRICT or on DISTRICT'S behalf at any time at DISTRICT'S discretion, 12-5 Work -- Any and all obligations, duties, and responsibilities necessary to the successful completion of the project assigned to, or undertaken by LA COSTA pursuant to this Agreement, including, but not limited to, all labor, m"?zrials, equipment and other incidentals and the furnishing thereof, -4- Revised 3/20/79 12-6 Transferees -- Any party who acquires land (located within DISTRICT'S sewer service area) from LA COSTA under any circumstances whether by gift, inheritance, devise, or any other transfer of whatever type or nature, r r * C-0-V-E-N-A-N-T-S 1, CONSTRUCTION ,OF FACILITIES .1.1 Renovation of - Existinq Treatment Facilities, LA COSTA agrees to rehabilitate and reactivate the DISTRICT'S' -* existing wastewater treatment facilities- so that this facility can receive and treat for reclamation.an average daily dry weather flow of wastewater in the total amount of 270,000 gallons, LA COSTA shall be solely responsible €or completing all phases of concept, design and construction with respect to this rehabilitatian, . LA COSTA further agrees to bear all concept, design and construction I * costs associated with reactivation of the existing treatment facility including but not limited to, all professional fees, ail permit . fees, all taxes or other assessments, and all labor and material costs (the "Project costs"). All design, contract award and construction shall be approved by the DISTRICT. within thirty (30) days after receipt of the plans and specifications an4 the contract documents' for the Project. Any disagreement between DISTRICT and LA COSTA with respect to these matters, which is not resolved by . -. 'mutual agreement between the parties, shall be resolved in accordance with the arbitration provisions set.forth in this Agreement. A legal description of the location of the existing treatment facilities is attached as Exhibit "B" and incorporated herein by reference.. 1.2 Construction of Other Mastewater Facilities, - LA COSTA further agrees to design and construct sufficient additional wastewater facilities to collect, treat, reclaim and dispose of an additional average daily dry weather flow of wastewater -5- Revised 3/20/79 T c. ". - j. : ~ -. - ,. *', 1- ;;- - . ^I . -. .. in an amount of 330,000 g.p. d./a.d.d-w. f. LA COSTA shall .bear all costs associated with this design and construction a5 more specifically set forth in Section 1.1 above. be. part of the Project'cost- All design, contract award and construction phases shall be initiated subject to the approval of the DISTRICT in the same manner as provided in Sec. 1.1 of this Agreement-including These costs shall . .. # r - resolving any questions thereto as to which the parties disagree, *- Upon completion of the facilities discussed in this Section (1.2) and in Section {l'.l) of the Project, the DISTRICr shall have total. . additional average daily dry weather flow of wastewater treatment - - . . capacity in While a.d-d-.w.f., an amount of 600,000 g.p.d./a.d.d.w.f, - -. - .. . DISTRICT shall have treatment capacity for 600,000 g.p.d,/ until additional use is established over and above.that . 500,000 gallons to be used by LA COSTA or transferees, DISTRICT's operation shall be limited to the 500#000 g.p-d-/a,d-d,w.f., until, such time as disposal and use of the additional 100,000 gallons is provided for in connunction with the 54,000,000 gallon reservoir by some party other than LA COSTA. shall allow DISTRICT or DISTRICT'S designee to construct additional - -. .. The configuration of the Project . facilities to expand treatment to not less than 8OO,OOO q.p.d/a,d,&,xg,f, on DISTRICT'S existing plant site. 1.3 Meadowlark Line. It is mutually agreed that the existing 8" 'pipeline in the Meadowlark area will not be used sewerage from lands not immediately tributary to reclamation plant. .. .. gravity sewer collection for transporting raw the wastewater 1.4 Construction of -- a Storage Reservoir. LA COSTA further agrees to design and construct, subject to the DISTRICT'S approval, a reclaimed Water StOrzzcp2 reservoir with a minimum capacity of 54,000,000 gallons Of storage for reclaimed -6- Y.L. I '5 . - 3 ., -- .i water exclusive of capacity for local surface waters or including ! 1 ! facilities to by-pass such surface flow, Any question as to the design and approval Of this portion of the Project shall be resolved- as provided in Section 1.1 of this Agreement and the cost shall be included in the Project cost, 1.5 LA COSTA and the DISTRICT mutually agree to cooperate to Cooperation Durins Desigi and Construction. - obtain any and'all permits, licenses, or other documents which '. may be necessary to design and construct the proposed facility . .- in compliance with all applicable laws and regulations and to -- take all such additional steps as may be necessary to complete the design and construction of the proposed facilities at the earliest gossible time- Upon request: DTSTXICT will approve in the manner provided in Sec. 1.1, a preliminary or final design report on the Project or any portion of the Project. Agreement requires a party to "approve" such approval shall: not unreasonably be withheld, Whenever this . .* .- 1.6 Vestinq of Title. -- Upon completion of construction and design and upon approval by the DISTRICT, LA COSTA shall execute and deliver to the DISTRICT all documents necessary to vest title to the constructed facilities in the DISTRICT as DISTRICT may designate in its sole discretion. For purposes of taxation, the DISTRICT shall be treated as the owner of the property on the date title is legally vested in its name . 1.7 Construction Procedures - DISTRICT and LA COSTA shall mutually pre-select not less than three (3) reputable contractors to submit bids on the proposed project. Bids shall remain open for a period of thirty (30) days, -7- -.- --. . . . . -. - ._ .... ... . . --- , . . __ __ ._ ' \'- -------... .-. ., - . I. .. L -. The DISTRICT shall be entitled to approve the successful bidder. LA COSTA agrees not to approve any change order in excess of $25,000,00 without obtaining the prior approval of the DISTRICT, Upon completion of construction, for a major segment of the construction) LA COSTA shall submit to the DISTRICT a cost statement setting forth the - - Project cost, Th6 rDISTRICT shall audit this Cost Statement and such books of LA COSTA as it deems necessary to verify the accuracy - r. of the final cost statement- The DISTRICT shall bear all costs of the audit and shall be entitled to appoint such independent .. -' auditor or auditors as .it deems necessary to-.adequately verify the final cqst statement, and other information available as the DISTRICT deems necessary in its sole,discretion, for this purpose. LA COSTA agreek to make such documents 2, REIMBURSEMENT OF COSTS 2.1 Reimbursement-from the Cost Statement, --- The DISTRICT agrees to reimburse LA COSTA for the Project cost (including the value of the reservoir site provided for in Sec. 3) as stated on the final cost statement following such audits and audit approvals as the DISTRICT deems necessary, in its sole . discretion, less the amount of any contribution or prepayment made -. by DISTRICT or parties other than LA COSTA. 2.2 Reimbursement Agreement. The DISTRICT shall charge all users.of the Project, including LA COSTA, a service connection fee. Upon receipt of service connection fee payments, the DISTRICT shall pay to LA COSTA 80% of such payments, but not less than $1,000 per service connection upon payment in full for each such service connection, This reimbursement agreement shall commence upon -8- -. Revised 3/20/73 .i .. .. . the DISTRICT'S receipt of any service connection fees applicable to the Project and shall continue for a period of ten (lo) years . from the recordation date of the Notice of Completion on the final - .- phase of construction on the Project or until LA COSTA has been reimbursed for all costs of the Project or from all connection fees for the 600,000 g.p-d./a-d,d-w,f- capacity, whichever occurs first; . r ' .. 0 Reimbursement shall include the cost of the reclaimed water transmission main 'to convey reclaimed water-from the surface storage r. *. reservoir and/or reclamation plant to the equalization 'storage tank. . ; . . In no event shall reimbursement include the cost of reclaimed water distribution'lines to convey reclaimed wgter from the reclaimed water transmission main to the points of use. The project may be'constructed in one or more segments, The . cost as herein defined of each segment shall be determined by audit 13 'cupon completion and acceptance or commencement of use of each segment. Interest shall be paid upon such amounts from the date of acceptance ,q or commencement of use of each segment, whichever occurs first, The i ./ c rate of interest shall be seven percent (7%) per annum on the unpaid : \- j$\ I .. .% it .: .I -,h - balance of any unpaid reimbursable amounts untfl paid, Quarterly.un- .5 .. % paid interest shall be added to the unpaid reimbursable amount to be paid to LA COSTA from the connection fees as herein provided, end of each quarter or portion thereof, payment shall be made by DISTIRCT At the & .L -- by ' / I. . to LA COSTA within ten (10) calendar'days and the amount thereof shall be deducted from the amount as to which interest shall accrue for the next succeeding quarter. In the event the term of the reimbursement agreement expires be- fore all reimbursements have been completed, the obligation of the DISTRICT to make further payments to LA COSTA shall terrnir'ate. LA COSTA understands that this reimbursement program may not compensate LA COSTA for all reimbursable costs or irlterests on the Project. Any monies held by DISTRICT on the expiration date of the reimhursernent agreement to which LA COSTA would be entitled at the next following payment period shall be paid within ten (10) days following the expira- Revised 3/20/79 ~ -9- > tion date. connection fees as of the expiration date, DISTRICT shall continue In the event DISTRICT has received partial payment on .to make payments as the remaining amounts are received on these fees; .. notwithstanding the expiration of the reimbursement period, until such t time as all partially paid connection fees are paid in full or the payment of that connection fee is terminated pursuant to the rules ,* and regulations of the DISTRICT of general application which may be adopted from time to t ime, .. .. .. .- .. .. .. .. .. . .. .. '. . ,I .-. . , ... . .. .. .. :. . .. .. . .. .. :. .. .. .. .. . .. .. .. . .. .. .. .. . .. ~. . . .. . .- .. .. .. .. . . .. . .. 3. LA COSTA TO S.UPPLY LAND WITH OPTION TO REPURCHASE 3.1 LA COSTA agrees to supply the DISTRICT sufficient real La Costa to Supply Land. _s_ - property for the proposed 54,000,000 gallon storage reservoir with appurtenant pumps and other ancillary facilities, a part of the Project- LA COSTA further agrees through the DISTRICT or otherwise, to acquire such easements and other rights-of-way as may be necessary to properly serve the proposed storage facility, These costs are a part. of the Project cost. .. This real property . shall be deeded to the DISTRICT upon campletion and acceptance of the water storage reservoir by the DISTRICT. A copy of the .. general legal description of the land (the description to be refined following construction) to be so.ld is attached as Exhibit "ctr and incorporated herein by reference. -. 3-2 Valuation of Land. Upon execution of this Agreement the parties shall select _.- a mutually acceptable IYAI appraiser to determine the fair market value of the storage reservoir property as 'of the date this Agreement is executed, The value which the MA1 appraiser 'establishes for the storaye reservoir property shall be deemed final and conclusive and not subject to unilateral revicw or appeal by either party, In the event that the EIAI appraiser determines that the fair market -10- . . -~ . .-.- . .. _- . .; ; :?:-.< .1 I . ... * . value of the land to be deeded for the storage reservoir exceeds :$~0,000 per acre, both parties agree to accept a fipre of $20,000 per acre as the accepted fair market value, The agreement to the land LA COSTA has conveyed for the proposed storage reservoir. . This option shall extend for a period of ten (10) -years. from the . 7- date the option is recorded by DISTRICT and shall be exercisible by LA COSTA only if the DISTRICT terminates the use of the starage - ' * . reservoir and appurtenant structures within ter. (10) years from-. the date the option has been recorded. The option agreenent between the parties has been attached hereto as Exhibit '*D" and incorporated herein by reference. . - This option shall be recorded immediately 7- I following acceptance and recording of the deed of the reservoir . site from LA COSTA to D'ZSTRICT. 4. DISTRICT GUARANTEE ,OF 200,000 GALLONS OF WASTEVATER CAPACTTY TO LA COSTA - 4-1 Guarantee of 200,000 Gallons. - The DfSTRICT agrees to provide LA COSTA, its successor or designee, with 200,000 g,p.d./a.d.d-w.f- capacity r'rom the Project, However, LA COSTA or LF_ COSTA'S designees shall pay the then existing capacity or connection charges of the DISTRICT. facilities comprising the Project are completed and accepted by the DISTRICT, LA COSTA shall be entitled solely to service on a prorated portion of the 200,000 g-p.d./a,d-d.'w-f; .ultimately guaranteed determined by dividing the disposable average daily dry weather flow capacity of operational facilities by 500,000 gallons and multiplying this fraction by 200,000 g.p.d./a.d-d.w.Z. Until all the proposed EXAMPLES: (1) Treatment is available for 600,000 g-p,d,/a,d,d,w,f, but only 100,000 g.p.d-/a.d.d.w.f, is capable of being used or disposed of in the manner provided by law. (100,000 divided by 500,OQO) x 200,000 equals 40,000 g.p,d./a-d,d-w,l -11- ! .. . I- \ - ... .. (2) Treatment is available for 270,000 g.p.d,/a.d.d.w.E- but only 300,000 .. g.p.d./a,d,d.w.f. is capable of being -- used or disposed of in the manner provided by law. (270,000 divided by 500,000) x 200,000 equals 108,000 .- I g.p.'d./a.d,d.w.f. , # LA COSTA shall not be entitled to any priority by reason of this Agreement as to the remaining 400,000 gallons of average daily dry weather flow of capacity from the Project but shall be entitled to participate in the use of this remaining capacity in accordance with the Rules and Regulations of the DiSTRICT then in effect. . 4.2 Execution ,- of "Will Serve" Letters. Upon execution of this Agreement, DISTRICT agrees to issue, at LA COSTA'S request, from time to time, such conditional "will . serve" letters or verifications of the availability of service up ta .a total of 200,000 gallons of average daily dry weather flow of capacity as may be required by the City of Carlsbad, the City of San Marcos, or the Courlty of San Diego to prove that sewer service will be made available at the time of need for projects of LA COSTA up to the maximum lhit of 200,000 g.p.d./a-d.d,w.f, However, in no event shall LA COSTA receive service connections for greater than the total periodic capacity to which LA COSTA is then entitled to in accordance with Section 4.1 (and the examples) .- set forth above. 5, LA COSTA DEVELOPMENT OF USE OP WASTEWATER 500,000 GALLONS G-P-D. 5.1 Disposal of - 500,000 G.P.D. The parties understand that regulatory agencies require that the District demonstrate the ability to dispose of a minimum of 500,000 gallons of the total 600,000 gallons of average daily dry weather wastewater flow contemplated by the proposed project Revised 3/20/73 -12- . a. .4 . .. . *- . :-. -. ~ . .- -0 .. . .. .. . .. .. .. .. .. . .. .. . .. ... . .. of LA COSTA. the real property. de-scribed in Exhibit "E", located within the LA COSTA agrees to develop or cause to be developed District, so that after ultimate development a minimum of 500,000 gallons of average daily dry weather flow of reclaimed water will be utilized for irrigation purposes to satisfy this governmental .requirement- The DXSTRICT agrees to use its best efforts to locate other legal users .of the reclaimed water so as to minimize the total amount of 'property which LA COSTA must make available to satisfy this governmental condition and also to provide for use of the additional 100,000' g.p.d. which cart be provided by-the Project -8 . but not used by LA COSTA. .. .. 5.2 Inspection - and Entry. , .. ' The 'DISTRICT shall be further entitled to inspect from time . - to time the manner in which LA COSTA is*utilizing the reclaimed water for .disposal purposes to insure compliance with various governmental rules and .- regulations including such rules and' regu- - lations as the DISTRICT-may adopt from tine to time, : right of entry on the LA COSTA land for this purpose shall be- carried out in accordance with Exhibit "F", attached hereto .and The DISTRICTS~ incorporated herein by reference- 5.3 Disposal Guarantee. ' LA COSTA shall ensure by deed restrictions and CC&R's that disposal'of 500,000 g.p-d-/a.d.d.w.f - is guaranteed to DISTRICT, and that such use is subject to DISTRICT inspection, and DISTRICT's rules and regulations for water, sewer and reclaimed water service, as may be adopted, from time to time, for general application for this Project. -13- I 6. INDEMNITY OF THE DISTRICT -- LA COSTA shall indemnify, assume the defense of, and hold .. free and harmless, the DISTRICT, its officers, directors, agents, -. employees and any engineer, architect or other consultant utilized the DISTRICT on the project from any and all obligations, liabilities, ! liens, claims, demands, losses, damages and expenses, of whatever type or nature, including, but riot limited to, attorneys' fees and all litigation costs arising out of LA COSTA'S design or construction of the proposed facilities or any other act or omission to act r .. by LA COSTA, its agents, servants, employees, invite-, or independent- contractors which are required by this Agreement.' Notwithstanding the foregoing, the indemnity agreement created by this Section (6) shall not indentnify the DISTRICT, its officers, _- directors, agents or employees against any liability arising from the negligence or wilful1 misconduct of the DISTRICT, its officers, directors, agents, employees or independent contractors, . 4T - r 7. LA COSTA TO NAINTAIN INSURANCE LA COSTA or its contractors shall maintain in force during the full period of construction pursuaAt to this Agreement.a full comprehensive public liability and property damage insurance policy insuring against any and all claims for injuries or death of.persons or damage to property occurring in, upon, or about the property subject to this agreement. The proposed insurance contract shall be submitted to the DISTRICT for its approval prior to initiation of insurance coverage- The insurance contract shall have limits of not less than $1,000,000.00 Single limit coverage and the DISTRICT shall be listed as an additional named insured. Prior to commenccnent of actual construction, LA COSTA shall submit a certificate of the insurance to the DISTRICT which shall provide for at least forty-five (45) days notice of cancellation or modification of coverage or limits. -14- .- a 8 ARBIT'PATION OF DISPUTES . Any controversy or claim between the parties'to this Agreement, including, but not limited to, any claims, disputes, demands, differences, controversies, or misunderstandings arising under, out of, or in relation to this Agreement, or any alleged breach of this Agreement, shall be subinitted,to and determined by arbitration in accordance I with the California Arbitration provisions contained in Civil Procedure s1280 et. seq., as amended from time to time, except as to those provisions of this Agreement excluded from Arbitration (Section 10). -. . .. -. .. .. . . .- .. .. .. .. .. The arbitrator or arbitrators shali determine the rights of the parties in accordance with the law and the award shall be subject to review as to the arbitrator's application of the law by any court having jurisdiction of the matter, whether or not any mistake of the lav shall appear upon the face of the award, .. As to all questions of fact, however, the determination of the arbitrator or arbitrators shall be binding upon all parties and shall be deemed final and conclusive. Each party shall be entitled to written findings of fact and conclusions of law as to all issues . determined by the award. Subject to the' above limitations, the . _. award granted by the arbitrator shall be binding upon all parties to the arbitration and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction over the matter. -15- .. - rules, regulations and policies.necessary to design, construct, 9. LA COSTA FJJD TRANSFEREES TO COKPLY WITH I ALL APPLICABLE LAWS AND REGULATIQNS -- 9.1 La Costa to Comply with Applicable Laws and Regulations, -- - L___ general application imposed from time to time, 9.2 Transferees of La Costa to Comply with .. _I _. _I_ Applicable Laws and Regulations, -- LA COSTA has been informed and understands that transferees I .. of its property must use reclaimed water for all non-sotable'water b uses made available as a result of completion of these pro2osed facilities in the manner herein provided and in the manner provided . by law. In particular, LA COSTA agrees to insure that all transferees of its property are obligated to observe the terms of this Agreement . to the extent necessary to continue operation of the facilities in a legal manner and LA COSTA further agrees to insure that all transferees of its property are obligated to utilize the reclaimed water in a manner compatible with all applicable laws, rules, regulations or other' governmental policies .in effect from time to time. other things, this requires LA COSTA to insert restrictive covenants Among in deeds, CC&R's or other contracts between LA CQSTA and its transferees to insure compliance with this Section (9.2). -16- \* * .. .. - . ,' -. '). . - \. . .. -. 10. LA COSTA'S RIGHT TO TERMINATE CONTRACT LA COSTA or its successors may terminate the obligation to I receive reclaimed water in accordance with this Agreement provided LA COSTA or their successors in interest have provided the DISTRICT - I I I with, or the DISTRICT shall otherwise have, an alternative means I 05 disposing of the resulting reclaimed water or other alternative - means of treating'and disposing of the 500,000 g.p,d,/a,d,d,w,f, wastewater which is acceptable to the DISTRICT in its sole discretion, The decision of the DISTRICT in this regard-shall be final and binding on LA COSTA or its transferees and shal1,not be subject to review by arbitration or through any court proceeding, - 11. LA COSTA AS THE DISTRICT'S AGENT LA COSTA shill be deemed the DISTRICT'S agent to enter in and upon such property of the DISTRICT as nay be required from time to time to accomplish the purposes of this Agreement, However, LA COSTA shall indemnify the DISTRICT for acts of itself or for other .. .. parties present on the DTSTRICT's property with LA COSTA'S consent or approval in accordance with the indemnity aqreement discussed in Section 6 of this Agreement, It is understood by the parties that the agency right granted LA COSTA pursuant to this Section (11) is not a license or other possessory or taxable interest of LA COSTA in the property of t6e . DISTRICT, 12 - NOTICE AND PAYBIENT .. Any notice and payment or instrument required by this Agreement shall be deemed delivered if deposited, certified mail, in the United States mail and addressed'as follows: -17- .- "LA COSTA" LA COSTA L&ND COMPANY "DISTRICT" San Marcos County Water District 7 88 West San Marcos Boulevard San Marcos, California 92069 .. ' Notice of a change of address shall be deiivered in the same - manner as any other notice provided by this Section but shall hot b I i I' -. .. be deemed effective until' received by the other party to this Agree-.' ment. 13. ASSIGNEIENT LA COSTA shall not assign the right to receive reimbursement pur& suant to the provisions'of this Agreement without prior approval of the DISTRICT; provided, however, DISTRICT reserves the right to limit the assignments so as not to be required to make payments to multiple I I k assignees under circumstances which'may create an administrative burden for DISTRICT. Notwithstanding the foregoing, LA COSTA may grant a. security interestlin, OK pledge, the rights of LA COSTA to receive reimbursement hereunder to institutional lenders for the purpose of securing obligations of LA COSTA to such lenders, 14. TIME OF THE ESSENCE Both parties understand that time is of the essence in the completion of all matters contercplated by this Agreement because of potential changes in governmental regulations applicable to .. the proposed project and because of potential changes in the public's acceptance of the proposed project. Both parties agree to use all. due diligence to complete all phases of the work contemplated by this Agreement at the earliest possible time- LA COSTA and DISTRICT intend that transfer of the land and acceptance of the to.tal project -18- . . I- -.. . . . .. _- by the DISTRICT shall be completed by June 30, 1982; except for delays caused by matters beyond control of the parties such as, but not limited to, strikes, war, inclement weather, force majeure, or regulatory approvals, .. tr 15. NOTICE OF TAXABLE POSSESSORY INTEREST If this Agreement results in the creation of a possessory interest, and such possessory interest is vested in a private party ~ to this document, the private party may be subjected of personal property taxes levied on such.interest, to the payment - 16, ANTI-TRUST CLAIMS OF LA COSTA OR SUCCESSORS By entering into this Agreement or any sub-contract pursuant .- to this Agreement, LA COSTA, each contractor, and each sub-contractor who performs work or who supplies goods, services or materials I in accordance with the terms of this Agreement hereby offers and agrees to assign to the&DISTRICT all rights, title, and interest . in and to all causes of action it may have under federal or state anti-trust law including, but not limited to, any anti-trust action any of them may have under Section 4 of the Clzyton Act (15*u,S,C, 515) or under the Cartwright Act (Chapter 2 commencing with 516700 . of Part 2’of the Division 7 of the Business and Professions Code), arising from the purchases of goods, services or materials pursuant to this Agreement or any related sub-contract, This assignment is made and becomes effective at the,tirne the DISTRICT accepts the proposed facilities and land transfer without further acknowledgement of the parties, LA COSTA agrees to insure that it comparable provision is included in all contracts or sub-contracts at all tier levels which are executed pursuant to this Agreement. -19- ! t 17. VENUE In the event of any legal or equitable proceeding'to enforce' the terns or 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, . r 18. MODIFICATION This AGreement may not be altered in whole or in part except by modification in writing, executed by both parties to this Agreement, . .19, ATTORNEYS' FEES In the event any arbitration proceeding, administrative proceed- ing or litigation in law or in equity, including any action for . declaratory relief, is brought to enforce or interpret the provisions or performance of this Agreement, the prevailing party or parties shall be entitled to an award of reasonable attorneys' fees?and all costs associated with the proceeding as determined by the Court, the presiding officer, or the arbitrator authorized to make a deteminatic .* . . of the issues in addition to any other relief to which the prevkilinp . party may be entitled, ~f either party to this Agreement becomes a party to litigation, an administrative proceeding or arbitration concerning the enforcement or interpretation of the provisions of this Agreement or the performance -. of this Agreement by reason of any act or omission of the other party, its agents, employees, officers, directors, or any other representative of the other party, and not by any act or omission- of the party that becomes a party to that proceeding or its authorized reprcsentatives, the party that causes the other party to become involved in the proceedings shall be liable to that party for reason- . able attorneys' fees and all costs of the proceeding incurred by that party. The award of reasonable attorneys' fees and a11 costs shall be determined as provided above. I. -20- In the event opposing parties have each prevailed on one or more causes of action actually contested or admitted by pleadings, discovery or prehearing documents on file, the arbitrator ox presiding officer may offset such fees and costs between prevailing parties. after considering the necessity of the proceeding and the importance :of the issue or issues upon which each party has prevailed, *. . ' 20, RIGHT OF DISTRICT TO INSPECT Both parties to this Agreement understand that DISTRICT intends to approve, ox inspect and approve, all phases af design and construction of the proposed facilities. 'LA COSTA shall supply the DIST'RICT with such information as the DISTRICT deems necessary from time to time in the District's sole discretion to-properly .- review all design and construction phases of the contract and to provide the DISTRICT with the opportunity to inspect the proposed facilities from time to time upon request. I ? 2 1. RECLAIMED WATER QUALITY The parties understand that the presence and other substances in reclaimed water above of dissolved minerals certain concentrations can be deleterious to its use for irrigation of landscaping, crops and other vegetation. efforts to maintain quality of reclaimed water which permits its . The DISTRICT agrees to exercise all reasonable . use for green belt, parkway, and agricultural irrigation without undue damage to vegetation, that the DISTRICT shall direct its efforts towards limiting the increase of dissolved minerals (total dissolved solids) concentrations As a general guideline, it is agreed in the reclaimed water to not mole than 300-milligrams per liter above the total dissolved solids concentration in the DISTRICT'S potable water supply. In addition, the DISTRICT shall not permit the total dissolved solids concentration of reclaimed water to exceed 1200 milligrams per liter at any time, nor permit substances -21- Revised 3/20/79 .. toxic to plant life to be present in the reclamation system in concentrations that would be damaging to vegetation being irrigated, . LA COSTA agrees to support and cooperate with DISTRICT in actions _- to maintain or improve the quality of the reclaimed water. 22. OPERATION OF THE PROJECT Upon completion and acceptance of the-Project, DISTRICT shall thereafter operate and maintain the Project in accordance with.sound engineering operation and maintenance. criteria for like and similar wastewater facilities so as to meet applicable waste discharge require- ments and permits for theuse of reclaimed water subject to the appli- cable provisions of this Agreement as to the duties of LA COSTA and its transferees to use such reclaimed water in accordance with the applicable provisions of such permits. 2 3 . INTEGRATED AGREEHZNT .. The reimbursement provisions for payments to LA COSTA by the DISTRICT (which 'is conditioned on DISTRICT'S receipt of connection fees as a source of funds for payment) is severable- Except for that severable provision, this Agreement is an integrated agreement and in the event any provision of this Agreement is held to be invalid, void or unenforceable for any reason so as to defeat . the objectives that either party seeks to attain pursuant-to this _- . Agreement, the entire Agreement shall be null and void, .. All clauses contained in this Agreement shall be interpreted in a manner which renders them valid under applicable provisions of state or federal law to the maximum feasible extent. -22- 24. CONSTRUCTION AND PERFORiIYANCE BONDS LA COSTA agrees to insulre that all construction carried out pursuant to this Agreement is covered by a performance bond in an amount equal to 100% of the construction contract and a material bond in a like amount naming the DISTRICT and LA COSTA as named insured and providing €or costs including attorneys' fees in the event of a dispute undex the terms of any such construction con- r -. tract or bond. .. of San Die'go, State of California .. .. *LA COSTA LAND, COMPANY -_ + SPlN NARCOS COUNTY WATER DISTRICT .. ---- BY - r- TO )SI¶ CA (8.74) (Corporation) JCHHHU, rresiaent - ""r ATTEST : on March 26, 1979 State, personally appeared Irvins Roston known to me to be the1 Vice resident, and Elaine Thomas Assistant Secretary known to me to be of the corporation that executed the within Instrument. before me, the undersigned, a Notary Public in and for said s W W K T y known to me to be the persons who executed the within strnment on behalf of tbe corporation therein named, and to me that such corporation executed the pursuant to its by-laws or a resolution of board of directors. WITNESS my hand and official seal. t itar ized le .duals MEMO RAND UM TO: City Manager FROM: Ci ty Engineer DATE : November 15, 1979 SUBJECT: SEWER AVAILABILITY FOR THE MEADOWBROOK AREA IN NORTHEAST LA COSTA The Planning Commission recomnended approval of a change of zone from P-C to RDM-Q and amendment of the La Costa Master Plan deleting 134 acres in the Meadowbrook area at its November 14, 1979 meeting. subject property is located in Northeast La Costa. The Sewer service is not available for this development at the present time. Sewer will be provided by the San Marcos County Water District through the expansion and reactivation of their existing sewage treatment facility at the head of San Marcos Canyon. The City Council has previously directed the processing of applications for the area to be served by the proposed reactivated plant upon guarantee by the SMCWD that sewer will be available. On November 6, 1979, the City Council adopted Ordinance No. 9539 which a1 lows the processing of developmental approvals subject to certain condi- tions. applicant submits a letter from the sewer district indicating that sewer service will be available to serve the development and that the City Council finds that it is reasonable to expect that sewer service will be available to serve the development concurrent with need. Such applications may be accepted and processed providing the In order to make the finding that sewer service will be available for the Meadowbrook area concurrent with need, the City Council should consider the "Agreement for Design and Construction of Reclamation Facilities between La Costa Land Company and SMCWD," and a letter from the SMCWD of August 17, 1979 indicating condi ti onal sewer avai 1 abi 1 i ty for the Meadowbrook area. The agreement for the "Design and Construction" includes the following provisions: 1. La Costa will provide for the renovation and upgrading of the existing San Marcos Sewage Treatment Plant to achieve a capacity of 600,000 gallons of sewage a day. La Costa will design and construct a water reclamation storage reservoir with a minimum storage capacity of 54 million gallons. 2. 3. La Costa will provide facilities in conjunction with the reservoir for disposal of 500,000 gpd of reclaimed water. 4. SMCWD will reserve for the sole and exclusive use of La Costa 200,000 gpd of capacity from the treatment plant. is equivalent to 800 EDUs. The capacity -2- City Manager November 15, 1979 5. Until all the proposed facilities are complete and accepted by the district, La Costa shall be entitled to service on a prorated portion of the 200,000 gpd. 6. The district has agreed to issue, at La Costa's request, conditional "will-serve" letters or verification of the availability of service up to a total of 200,000 gpd of capacity as may be required by the City of Carlsbad, the City of San Marcos or the County of San Diego. The City has assurance from the SMCWD that capacity will be available for the La Costa Northeast Development, if the proposed treatment and disposal project is completed and certified. Essentially, the City Council has the same assurance that the San Marcos County Water District facility will actually be completed and certified for treatment and disposal of 500,000 gpd as it does for the Lake Calavera Hills Treatment Plant's 1.2 million gallons per day. The most significant issue for both projects is the disposal of the treated effluent. not propose an "excess effluent disposal line" to the Encina Ocean Outfall. The SMCWD Project is wholly dependent on land disposal and does The Northeast La Costa Development will include dual piping systems to utilize both reclaimed and domestic water. may be used for effluent disposal by spray irrigation. Additionally, open space areas Mike McCann, Senior Engineer, at the Regional Water Quality Control Board, indicates that the SMCWD Wastewater Reclamation Project received wastewater discharge requirements on March 26, 1979. These requirements are for land disposal and include a determination by the Regional Board that the land disposal will not endanger a beneficial use and that there are adequate dis- posal methods. The District must still receive Regional Board certification to operate the facilities once they are constructed and meet strict Health Department Requirements. In other words, for the plant to be certified for a given capacity, the La Costa Land Coppany and the San Marcos County Water District must have a sufficient acreage of acceptable land set aside for irrigation disposal of the rated volume of effluent whether or not the land is ever used for such a purpose. insure that, as we approve subsequent developments in the affected area, we give sufficient consideration to the balance of effective landscaping irrigation use in the new development and retention of sufficient acreage in the disposal area. The capacity of the two uses must always equal the rated capacity of the plant. This makes it incumbent upon the City to Les Evans City Engineer LE:mnt