HomeMy WebLinkAbout1979-11-20; City Council; 6080; Lake Calavera Hills sewage treatment facility agmtCGTY OF .CAPLSBAD
i AGENDA BILL NO. (0 0 1 Initial : Dept. Hd.
DATE : November 20, 1979 C, Atty.urA
DEPARTMENT : City Attorney ' C, Mgr.
Subject: CONSTRUCTION AND FIKfANCING AGREEMENT FOR LAKE CALAVERA
HILLS SEWAGE TREATP4ENT FACILITY
Statement of the Matter
In accordance with the City Council's direction, the City
Attorney's office, with the City Manager and certain
members of his staff, have been involved in an extensive series of negotiations with representatives of Lake Calavera Hills Associates on a master financing, con- struction and reimbursement agreement for the proposed 1.2 MGD Wastewater Treatment and Water Reclamation
Facility to serve the Lake Calavera Hills Drainage basin.
The negotiations have results in an agreement, which is
acceptable to Lake Calavera Hills. consistent with the policy judgments made by the City
Council in directing, staff to pursue the matter and in
approving the precise plan for the facility.
Since our office has been involved from the beginning, for continuity purposes we have undertaken to compile the
staff report.
to the City Council, dated November 9, 1979, attached
hereto as Exhibit 1.
In our opinion it is
That report is contained in a memorandum
Exhibits
1. Memorandum t6 the City Council, dated November 9, 1979.
2. Agreement between City of Carlsbad and Lake Calavera Hills
Associates for Construction of a 1.2 Million Gallon
Capacity Sewer Plant.
3. Resolution No.Lo60 , approving said Agreement.
Recommendation
If the City Council is satisfied with the terms and conditions of the proposed Agreement with Lake Calavera Hills Associates for construction of the sewer plant, your action is to adopt
Resolution No. 6 00 0 .
Council Action:
11 -20-79 The matter was continued,
11-28-79 Council approved in concept the sewage treatment facility system
for Lake Calavera Hills and referred back to staff the financing
agreement for appropriate updating.
MEMORANDUM
DATE :
TO :
FROM :
SUBJECT :
November 9, 1979
Mayor and City Council
City Attorney
CONSTRUCTION AND FINANCING AGREEMENT FOR LAKE CALAVERA HILLS SATELLITE PLANT
The Public Work Administrator has prepared a memorandum, dated
October 30, 1979, which, beginning on Page 2, outlines the history
of the above-referenced project. A copy of the memorandum is
attached hereto. The City Council, on August 7, 1979, adopted a
Precise Plan of Development for the sewer plant. The conditions
of approval for that plan reflected a series of policy judgments. A copy of the conditions is attached and it should be reviewed at this point. Our office was then directed to undertake the
negotiation of a master construction, financing and reimbursement agreement. In carrying out that direction, my office has been involved,on an almost daily basis over a three month period, in meetings, staff discussions, drafting and other activities. As a result, we have forwarded an agreement to the Council which we think is consistent with the Precise Plan and the other policy directions we have received on the matter.
The agreement is a complicated document which should be carefully reviewed. We will try to meet with each member of the Council individually to review its terms. The agreement contains a number of compromises. It is not practical in this memorandum to outline all of them so please let us know if you have any concerns.
One policy questions which the Council may wish to resolve before
considering the agreement is the determination that the average
flow rate for all new EDU'S to be connected to the proposed plant be initially set at 200 gallons per day. The Public Works
Administrator's memorandum, dated October 30, 1979, discusses
this matter and it should be carefully reviewed. One of the
foundational assumptions of the agreement is that the 200 GPD
figure will be used. If the Council has any concern in that
regard, you should ask the Public Works Administrator for further information.
Another significant policy assumption is that the Council will accept a phase construction of the plant. The terms and conditions
under which that may occur are set out in detail in the agreement. Our willingness to recommend phasing was based upon assurances
Mayor and City Council -2- November 9, 1979
that the Developer will remain responsible for completion of the system. In that regard, if the plant is phased, Calavera Hills will be limited to 41.77 percent of the Phase I capacity. That figure represents the relationship that the projected build out of Lake Calavera Hills bears to the projected build out of the entire drainage basin. The agreed percentage reflects a series of assumptions, judgments and compromises. The basis for them appears in part as exhibits to the agreement. The matter is discussed in more detail in a memorandum from the Planning Department to the City Manager dated October
25, 1979. Again, this work by the Planning Department is one of the foundational assumptions of the agreement and the Council should satisfy themselves that it is correct.
The agreement defers ultimate resolution of the question of reimbursement. We would have preferred that the project go to bid and the many issues involved in reimbursement be resolved based on firm bid figures. In the alternative, we devised a series of engineering estimates which will be prepared and presented to the Council for approval after the agreement is signed. Calavera Hills and the City Engineer have been engaged in an extensive series of meetings involv- ing these estimates. The final resolution of who pays for what will be made when the Council considers the estimates.
Please excuse us for stating the obvious but this project is
a significant one and the arrangements we have made to help
carry it out are complex. The agreement, with all of its exhibits, the Lowry Overview Report, the Montgomery Report and EIR, and the exhibits to this memorandum, should all be
carefully reviewed. The City Council and the responsible
City departments should satisfy yourselves that the agree-
ment will allow us to proceed as you consider appropriate.
VFB/mla
Attachments
cc: City Manager
VINCENT F. BIONDO, JR.
1 City Attorney
MEMORANDUM
TO : City Manager
FROM : Public Works Administrator
DATE : October 30, 1979
SUBJECT: LAKE CALAVERA HILLS SATELLITE PLANT
PROPOSED FINANCIAL AGREEMENT
INTRODUCTION
.-
The City Council, on August 7, 1979, adopted a Precise Development
Plan for a 1.2 million gallon per day wastewater treatment and reclama-
tion facility. A condition of PDP #2 was that the developer, Lake Cala-
vera Hills Associates, enter into a Master Reimbursement Agreement with
the City. The terms of that agreement have been reached after a number
of meetings between the developer's representatives and the City Manager
and City Attorney.
To reach agreement on terms regarding a plant, yet to be designed
or built, which is intended to serve future development, requires that
certain assumptions and concepts be mutually accepted.
Public Works has been asked to comment on the assumption that:
(1) All new development in the Lake Calavera Hills area will have an
equivalent dwelling unit (EDU) flow rate of 185 gallons per day (GPD);
and (2) existing units, presently served by Encina, but capable of be-
ing switched over to the reclamation facility, will have an EDU flow
rate of 246 GPD. We have also been asked to comment on the concept
that EDU flow rates be reviewed annually and adjusted as required based
on actual flow data. In conclusion, we have been asked to briefly out-
line the history of the proposed project.
RECOMMENDAT I ON
It is recommended that the average flow rate for all new EDU's
served by the proposed satellite plant be initially set at 200 GPD. It
is further recommended that existing EDU's, when switched over to the
satellite plant, be initially set at 246 GPD and that actual flow rates
for both new and existing EDU's be evaluated annually based on actual
flow data and the use of engineering judgment.
DISCUSSION
It has been proposed that EDU flow rates be set at 185 GPD for all
new construction and 246 GPD for those units being transferred over from
Encina to the satellite plant. It has been further proposed that EDU
flow rates be reviewed annually and adjusted as required based on actual
flow data.
Dealing with those issues in inverse order, I concur in the recom-
mendation that flow rates be reviewed on an annual basis. The informa-
tion gained would be useful in managing the facility as well as insuring
equitable administration of the agreement.
The use of 246 GPD as the flow rate for existing units that may be
switched to the satellite plant from Encina is concurred in at this time.
The development of the 246 figure is the result of an extensive staff
study performed using data from all existing connections and is, there-
fore, a system average figure. It must be remembered that our present
system uses data gathered over decades when the only information kept, if
any at all, was the building permit information on plumbing fixtures.
The new service area will be residential only and will utilize a signif-
icantly improved data base for system management. While it is probable
that the transfer of existing units from one data base (City service
area) to another (Lake Calavera Hills service area) will result in some
modification based on annual review figures, the use of 246 is probably
more acceptable than any other figure at this time since it is based on
the use of actual flow data.
I do not agree on the use of the figure of 185 GPD for each new
EDU. The developer has submitted data from several different agencies
to support his contention. I have reviewed the data submitted and it is,
in my opinion, very selective. While it includes data from one of the
joint system members (Encinitas), it does not contain data from other
member agencies which also serve residential connections almost exclu-
sively. The Leucadia County Water District, during fiscal year 1978-79,
had an average connection flow rate of 250 GPD. The Buena Sanitation
District averaged 208 GPD during the same period.
able change in flow characteristics, including flow rate, as we compare
one service area with another, the numbers will change depending on the
methods used to record connection and flow data. Lacking specific flow
data, I would suggest that we use information derived locally to deter-
mine an initial flow rate. The Sewerage System Improvement Program pre-
pared for the City by Brown and Caldwell in 1976 indicates that the aver-
age domestic flow for the City of Carlsbad is 80 gallons per capita per
day. The City Planning Department indicates that the average dwelling
unit occupancy ratio is 2.6. This figure is used elsewhere in support-
ing data for the Master Reimbursement Agreement and, therefore, appears
to be acceptable to the developer. When the average occupancy ratio is
multiplied by the average domestic flow, the result is 208 gallons per
dwelling unit. Allowing for a reduction in flow rate due to conservation
practices put into effect since Brown and Caldwell generated their 1976
figures and allowing for the addition of a small fraction to account for
the commercial areas and schools proposed in the Lake Calavera Hills Mas-
ter Plan, and remembering that the figure will be reevaluated each year
based on actual flows, I suggest an average EDU flow rate of 200 GPD.
In addition to a prob-
H I STOR I CAL BACKGROUND
The need for additional sewage treatment capacity became apparent
to local sewer service agencies in the early 1970's when plans for
Phase Ill were first discussed. Concerted activity begain in 1974 and
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culminated with the preparation of the Phase Ill project report, finan-
cial plan and EIR in early 1975. Complications because of Federally
mandated air qual i ty programs delayed concept approval unti 1 mid-1978.
By this time, the City had obligated all its sewer capacity and, in April,
1977, instituted a morator i urn.
In addition to the concern caused by the moratorium, local agencies,
as well as the State of California, have for many years been expressing
concern about the adequacy of our water supply. It became increasingly
apparent that water reclamation would prove to be a significant source of
water for agricultural and landscaping irrigation thereby making a larger
portion of our imported water available for domestic and other more re-
strictive uses. In recent times we have begun to experience significant
escalation to the cost of imported water. This increase was due primari-
ly to the vast amounts of energy required to bring the water south from
northern California. This problem is compounded by the spectre of a mas-
sive increase in energy costs when Federal power contracts are renegoti-
ated in the middle 1980's. These three issues, moratorium, increasing
demand and increasing costs, are the main factors which resulted in the
proposal to build a satellite reclamation facility.
The developer realized that he would have to wait until the comple-
tion of Phase Ill before he could do anything with his holdings unless he
provided the needed treatment capacity himself. The City, on the other
hand, was not responsive to a proposal to build a satellite treatment
plant unless it could be shown to benefit the general public by providing
both treatment capacity and water reclamation. A series of reports, in-
cluding the Overvlew of Wastewater Reclamation Opportunities, prepared by
Lowry & Associates in March, 1978, and a series of policy discussions
by the City Council, led to policy statements that any satellite plants
must be able to serve a logical service basin.
The drainage basins recommended were to be the compromise of optimum
sewage treatment service areas and optimum reclamation service areas.
Since some of the factors in one type of service area worked against
needs in the other type (i .e., elevation difference, which works favor-
ably for the gravity sewer collection system, works unfavorably for the
pressurized relcaimed water system which must pump the water uphill from
a treatment plant thereby consuming more energy), an engineering evalua-
tion would be necessary. The determination of logical service area ba-
sins and the appropriate technology that would provide adequate treat-
ment and the opportunity for reclamation, were to be the subject of fur-
ther studies.
In 1978, James Montgomery Engineers were commissioned by the City
to prepare a project report and EIR on a satellite plant to serve the
northeast portion of the City. That study identified a service area of
slightly in excess of 4,000 acres with several treatment plant configura-
tions located on each of two potential sites, one of which was proposed
by the Lake Calavera Hills developer.
While the Montgomery report was being reviewed by all affected
agencies and by the Planning Commission, the developer received final
approval on his amended master plan. This was soon followed by a gener-
al plan amendment which designated a future treatment and reclamation
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facility in an area encompassing both sites discussed in the Montgomery
report. While reviewing the EIR on the proposed satellite plant, the
Planning Commission asked for, and received from Council, policy direc-
tion on several issues including a statement that reclamation was a nec-
essary part of any satellite plant that was to receive any consideration
by the City. The Council also determined that the site proposed by the
developer was preferred over the other site studied.
The City Council, on April 3, 1979, upon the recommendation of the
Planning Commission, certified the Montgomery draft EIR.
Following certification of the EIR and indication of the preferred
development scheme by the City Council, the developer submitted an appli-
cation for a Precise Development Plan, which, if approved, would allow
him to commence design of the proposed treatment and reclamation facili-
ty. Council agreed to use the conditions of the Precise Development Plan to
resolve the planning questions. Other questions would be resolved as
part of the City/developer negotiations that resulted in the financial
Master Reimbursement Agreement.
There were a number of specific questions that had not been resolved.
The financial agreement itself will answer the fiscal questions.
Memoranda from Planning and Engineering staff will address issues of per-
centage of basin within developer's Master Plan and percentage outside,
construction costs, costs of oversizing and other items.
Respectfully submitted,
L
Ronald A. Beckman, P.E.
Pub1 ic Works Administrator
RAB:VEB
CC: City Attorney
City Engineer
Planning Director
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1. Deve.lopmen% of the site shall occur substantially as shown
on Exhi.bit "G", dated June 22, 1979, attached heret.0,
and as shown on Exhibits A-1, R, D and P-1, dated April 2.1, 19'79,
for the wastewater* treiitnwnt plant; and Exhibit A-2, and E,
dated April 11, 1979, for the perc:olation ponds; except
for modifications and necessary back-up systems Rot
affecting the plant s operational efficiency that are
ap;?roved by the Public Works Administrator.
In addition to the approval of the development indica-t.ec?
in the exhibits noted above, all other requirements and appurtenanczs as listed in this approval shall be
indicated on the final Precise Development Plan.
1
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2.
3. The propose6 treatment plant shall be constructsd in crie
phase as a 1.2 mgd capacity pliirit with percolation ponds,
ef fl-uent lines to serve ponds, and all other hppur-Lenancec
necessary tc operate the treatment plaxlt zt its fully rzted capacity of 1.2 iitg3 a No'i withstanding the forgoinq phased constructi.on as specified in Coiidition t: 9 herein nay be permitted.
A reversible force main connecting the treatment faciliti.es
to the Encina line at El Camino Real shall be coxstructed as part of this project.
4.
5'; All wells, pumps, check dams and other appurtenances
necessary to reclaim water from the recharge basin , which basin is descri.bed in ExhS.bit E, shall be constrwted as part of this project. Plas Eor the water reclamation system shall be subnlitted to a?id approved by the Planning
Commission prior to commencelner,t of any grading , construction, or the placing of any equj.pt?nt Cor the project.
All effluent from the treatment plant shall he reclaimed
and, utilized for replacement of existing or planncd- potzble water (Type I), The amount of sewer capacity nllocntcd to future developments shall be linitcd to the a~tiount of reclaiincd water that can he guarnntced for use by the
app1j.cant of such develapment or ot.hc.rwi.sc guaranteed to
satisfaction of the City Council.
6.
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Page 2
7. All proposed users of the treatment plant shall prepare
and provide a plan acceptable to the City establishing
and Guaranteeing a method to utilize any reclaimed water pri-or to any approval of their project. The
reclaimed water may not be applied to native vegetatj-on or areas where there are no existing or planned potable water uses. land necessary to utilize the reclaimed water, the ratio of gallons of water to acres of land should be as
follows:
5
As a guide for determining the acreage of
3,000 gallons to one acre of agricultural land, or
800 gallons to one acre of landscaped land per day.
This ratio may be adjusted by the Planning Director to accommodate particular locations, soil types and plants.
8. Any plan required by Condition No. 7 shall be submitted to
the Planning Director for approval. Approval of the plan
by the Planning Director shall constitute acceptance of
the plan by the City.
Director shall give primary consideration to systems
where the land using the reclaimed water is either near
the recharge basin or served by gravity flow from the water reclamation system, in order to conserve energy
required for pumping. Approval by the City shall nbt
constitute a claim to or a guarantee for availability of reclaimed water. This condition and Conditions 6
and 7 shall be modified as necessary to accoinmodate
such City plan for the use of reclaired water as the
Council may adopt.
In approvhg the plan, the Planning
9.
.
.The applicant shall be responsible for construction of a fail-safe effluent disposal system sufficient to serve
and consistent with the 1.2 mgd design capacity of the treatment plant, unless the City Council finds and
determines that a water reclamation system consisting
appurtenances necessary to reclaim water from the recharge
basins consistent with such design capacity of the
treatment is feasible. If the water reclamation system is feasible, its construction is preferrable.
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' of mains, wells, pumps, check dams, and all other
Applicant shall use due diligence to obtain all necessary
state approvals for percolation capacity, first within
the Master Plan boundary of Lake Calavera Hj-Ils and then, if necessary, within alternative recharge basins located in the Agua Hedionda drainage basin sufficient to handle
the design capacity of the plant.
At the earliest possible time, prj.or to, City's acccptance of
any portion of the treatment facility, the City Council shall makc a determination as to whcther (a) it is reasonably
feasiblse to obtain 1.2 ingd percolation capacity within the
Mnstcr Plan boundary or acljaccnt nlternativc rccharcje basins ok, (b) a disposable efflueiit fail-safe system should be I>uilt.
Revised Conditions Page 3
' Upon either determination, the applicant shall be 'responsible
for construction and implementation of the alternative ,
... selected. Plans for the. alternative selected shall be
approved by the Planning Commission by a conditional
use permit prior to any grading, construction or placing of any equipment for the alternative selected. Construction
of the alternative selectec? shall. be completed within
a reasonable time as specified in the Master Reimbursement Agreement .
.. The applicant shall be responsible for the acquisition of
land, easercents, or other rights necessary for the construction required by this condition.
cannot acquire same after the exercise of due diligence, the City shallhave the option of acquiring the same through
its power of eminent domain, after due satisfaction of all
'legal requirements, including environmental review and
public hearings, if required. In such event, the applicant
shall be responsible for the direct expense of environmental and planning review, retention of special counsel to prosecute
the condemnation action or actions, and payment of any
'required compensation to property owners.
be reasonablv certain, to the satisfaction of the City,
prior to their acceptance of any Fortion of the plant.
In the event the applicant
Acquisition must
10. Any appurtenances necessary for reclamation, storage, or
use of the plant effluent, but not inc1ud.d for approval in this 'application, shall be subject to Planning Comniission
, rev'iew and approval. At the time of review the Planning
Commission shall determine if such appurtenances will have
a significant asverse effect on surrounding property. is determined that the appurtenances may have a sj.gnificant
adverse effect a conditional use permit shall be required.
Such conditional use permit shall contain conditions sufficient to mitigate any such potential significant
The applicant shall be financially responsible for and shall
make all reasonable efforts to acquire and provide a thirty
foot wide access way from Tamarack Avenue 'to the treat-
ment facility, with necessary easement rights to accommodate the reversible force main requfred by CoRdition 4 hereof. In the event applicant cannot acquire same after the exercise
of due diligence, the City shall have the option to acuuire
the same through its power of eminent domain, after due satisfaction of all legal requirements, including environ- mental review and public hearings, if required. In such
event, the applicant shall be responsible for the direct
expense of environmental and planning review, retention' of
If it
adverse effect.
11.
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. Revised CCmdltiOiIS Page 4
special counsel to prcsecute the condemnation action or
actions, and payment of any required compensation to property
owners. Acquisition must be reasonably certain, to the
satisfaction of the City, prior to any grading, construction * or placing of any equipment for the project.
12.
13.
14.
15.
Upon completion of construction and such inspection and testing as required by City, the site, and all structures
and appurtenances for the treatment facilities, recharge basins as shown on approved exhibits, the thirty foot wide access way from Tarriarack Avenue to the treatment facility,
and all other appurtenances approved by and pursuant to this
approval, including either the fail-safe effluent disposal
system or the water reclamation system, shall be offered
for dedication to the City of Carlsbad, free and clear of
liens and encumbrances.
The applicant shall be responsible for the payment of all
costs of construction of the facilities as approved.
Applicant may be reimbursed for certain costs expended in construction of the treatment facility with inore capacity than necessary to serve Lake Calavera Hills alone. City
and applicant shall enter into a Master Reimbursement Agreement
to provide for such reimbursement and to implement the requirements of this Precise Development Plan. This agreement
must be completed and accepted by the City Council before
any application €or discretionary approval. may be submitted or accepted on any project in the drainage basin, excep’c projects already approved or in the process of acquiring
discretionary approval. If no agreement is reached within one year from the date of approval of this Precise Devclop- ment Plan, all rights and approvals provided to applicant
by this plan shall terminate and this plan shall no longer
have any force or effect.
Upon acceptance of the treatment facility, ownership shall vest in the City. Provided, however, that applicant in
consideration of its initiation and financing of this facility
shall have reserved for it such capacity as may be provided in
the Master Reimbursement Agreement. .Except as providcd herein, or as otherwise authorized by law, applicant shall he subject; to all existing or future ordinances regarding sewer
allocation, permit issuance, or acceptance or approval of
applications for discretionary approvals. .
If the City aqrees to accept the facility, access easements or other property rights necessary Tor operation and main-
tenance of the percolation ponds, effluent line, and
necessary appurtenances which have not previously been
vested in City pursuant to Conditions 9, 10 and I1 herein shall Le granted to the City by applicant free and clear of liens and encumbrances.
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.Revised Conditions Page 5
16 ..
17.
18,
1.9.
20.
21.
22.
The applicant shall provide such easements over its own property as determined by the City Council to be necessary ,
to accoinmodate sewcr service and reclamation for the other
properties in the drainage basin'. This condition shall also,be made a condition of applicant's Master Plan.
The applj-cant shal.1 include in i.ts master CC&R's for the entire project and in the subdivision public reports for
each phase a detailed description of the facility, its
proximity to dwelling units, and the potential for adverse impact. The CC&ll's shall provide that the property owners
and their successors in interest covenant not to object
to or take any action, directly or indirectly, in opposition to the location of the facility nor its continued operation,
except to the extent that such objections and/or action
in furtherance thereof relate to the negligence or willful
misconduct of the persons or entities then operating the facility.
A condition that prohibits the use of self-regenerating water softeners shall be placed on all deveLopment perinitted to use this waste water treatment- facility. The Lake Calavera
Hills development shall contain such prohibition in the
CC&R's. .
The applicant shall submit and process a parcel map creating
separate lots for the treatment plant and recharge basins.
The Lake Calavera Hills Master Plan (MP-l50(A)) sha.11 be
amended as required by the approval of the zone change and
Precise Development Plan.
The applicant shall secure easement rights for the City
prohibiting the location of any habitable building within one hundred yards froin the outside edge of the service road or structure and equipment, whichever is nearer to habitable
buildings as indicated on Exhibit A-1. Tentative Map 76-12
and PUD-4 shall be amended if necessary showing such ease- ment prior to final map and final PUD.
To insure that the project will be designed with adequate safety margins, a design study for the facili.ty shall be submitted by Lake Calavera IIills Associates to the Public
Works Administrator or his designee and shall include the
following special studies: foundation, seisniic safety, expansive soil, soil stability, and special engineering requirements.
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Revised Conditions
23.
24.
25.
26.
27.
- 28.
29.
. 39.
31.
Page 6
Grading plans for all facilities shall be approved hy the
Public Works Administrator or his designee, prior to
issuance of building permits. Such plans shall include
provisions to limit grading, cut and fill and excavation
to the niininum areas necessary to prepare construction
pads and excavate for treatment, transport and disposal facilities.
Drainage facilities adjacent to the treatment plant and
percolation ponds shall be designed to accommodate a one hundred year flood and protect the treatment plant
and percolation ponds. These facilities shall be constructed
concurrently with grading activity.
Surfaces shall be graded to direct runoff toward designed
drainage facilities and away from any cut and fill slopes.
Land shall not be cleared of vegetation except immediately
before grading, and grading should take place only during
the dry season (April 16 to October 31).
All graded slopes shall be stablized for erosion control
irmediately following grading by the developer.
Jandscape and irrigation plans shall be submitted for
the approval of the Planning Director. The landscaping
shall be designed to screen the treatment facilities recharge basins from surrounding properties. Plans
shall include fast growing, tall trees a5 well as a
combination of shrubs and ground cover. Plants shall be drought tolerant, fire retardant where. necessary and easily maintained.
shall be fully installed prior to.the City accepting
the facilities.
The approved landscaping and irrigation
Natural vegetation and existing Eucalyptus trees shall be retained wherever possible.
All pumps, generators and other noise producing mechanisms shall be placed underground and/or shielded in such a manner to reduce noise attributed to the facility to a maximum of fifty-five dba at property Line of all facilities.
The applicant shall submit an archaeol~ogical investigation for the approval of the Planning Director that indicates the
location of any archaeological resources thzt could be
affected by the construction of the treatment facility,
recharge basins , effluent line and any accessory punips ,
access roads, wells, etc. The final Precise Development Plans shall include means to mitigate any potential impacts
noted in this investigation.
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Revised Conditions Page 7
32. The access way from the plant to Tamarack shall he improved
iqith a minimum of twenty foot wide asphalt concrete drive-
way and shall be approved by the City Engineer and Fire
Chief.
33. Fire hydrants shall he installed at locations and with
flow rates as approved by the Fire Chief or his designee.
34. An asphalt concrete driveway shall be provided to the
percolation ponds. The location, diniensior, and construction
of the driveway shall be to the satisfaction of the City Engineer 2nd the Planning Director.
The equestrian trail through the treatment plant site as
Shown on Exhibit A-1, dated April 11, 1979, shall be constructed by the applicant and maintained by the Lake Calavera Hills Homewoners Association. The portion of
the equestrian trail located between the treatment plant
and the recharge basins shall be placed within the efEluent
line easement, and shall be constructed by the applicant
and maintained by the Lake Calavera :Hills Homeowners
Association. The CC&R's for Lake Calavcra Hills shall contain this condition.
I
36. Final'plans for treatment facilities and recharge basins
shall indicate appropriate lighting to provide adequate
night tine operations. Such lighting shall be designed
. in a manner so that nearby residences or public streets . are not adversely affected. The lighting p1.m shall be subject to the approval of the Planning Director.
37. The treatment facility, recharge basins and any other mechanical appu$tenances shall be totally enclosed by a fence a minimum of eight feet in height and designed for
security purposes, subject to the requirements of the State
Water Quality Control Board.
The applicant shall provide n method approved by the Public
Works Administrator for the disposal of. sludge created by
the treatment plant.
A11 equipment proposed to be placed on any roof shall he
screened from public view and subject to the approval of
the Planning Director.
38.
33.
40. After approval, the applicant shall submit a reproducible
copy of the Prcci-se Dcvelopmcnt Plan which incorporates all requirements of the approval to thc City Iqanager for
signature. Prior to signing the final, Precise Dcvelopmcnt
Revised Conditions
41.
Paye 8
Plan, the City Manager shall determine that all applicable
requirements have been incorporGted into the plan and that;
all conditions of approval have been satisfactorily met
or otherwise guaranteed. The final signed Precj-se Develop-
ment Plan shall be the official site layout plan for the property and shall be attached to any applj.cation for a
building permit on the subject property.
This Precj-se Development Plan shall be effective only
when an ordinance approving Zone Change 203 beconies
effective.
MEMORANDUM
DATE : October 25, 1979
TO : City Manager
FROM : Planning Department
SUBJECT: LAND USE CALCULATIONS FOR THE CALAVERA HILLS
SATELLITE TREATMENT PLANT AGREEMENT.
As noted in our memorandum, dated October 19, 1979, regarding
Calavera Hills EDU Projections, this department prepared the land use data used to make those projections. The City Attorney's office has asked us to document how the numbers were calculated.
First of all, the land area used corresponded closely with the boundaries of the Calavera Hills Drainage Basin as described in the Environmental Impace Report (EIR-528) and Facilities Plan prepared by James M. Montgomery, Consulting Engineers, Inc. (JMM). The only exceptions to those.boundaries were:
1. The area of the drainage basin described by JMM within the jurisdiction of the City of Oceanside was not included in our calculations.
2. A small area of the Quail Ridge project (described later),
approved with a total of nine dwelling units that were not considered by JMM, was added to our calculations.
The drainage basin, with the two changes described above,
became our study area. The potential land uses within the
study area were then calculated as follows:
1. Potential Switchover - There are 629 existing dwelling
units within the study area that could be switched over
from sewer service at-Encina to service at the satellite plant. The advantages of switchover have been identified as follows:
A. Existing units would provide initial sewage needed to activate the satellite plant.
B. Additional capacity would be made available at Encina.
The disadvantages of switchover would be as follows:
A. The sewage generated from existing development is considerably higher than that generated in new develop-
ment. Therefore, two different EDU rates have to be used in the agreement.
B. If total buildout occurs as projected, the
total demand (1.294 MGD) would exceed the design
capacity of the satellite plant (1.2 MGD). By leaving the existing dwelling units connected to Encina, the maximum demand in the rest of the basin could be handled by the proposed satellite plant.
2. Approved Projects (TM's) - There are three projects
within the study area with approved tentative subdivision
maps. The three projects, known as Carlsbad Palisades,
Templin Heights (Chestnut Hills), and Quail Ridge, are
refrained from final recordation and development until
sewer is available. As noted earlier, a small portion
of the tentative map for Quail Ridge extends outside of
the drainage basin boundaries defined by JMM. Since
that area only includes nine additional dwelling units
which would logically be served by the same facility
that would serve the rest of the development, it was
included within our study area.
3. Calavera Hills - A master plan (MP-l50(A) was approved
for the area known as Calavera Hills on December 28, 1978.
(Ordinance No. 9517). Page 6 and 7 of the Master Plan
document contains a table describing each sub-unit ( "Village")
of the Master Plan area and the development standards,
including maximum dwelling units allowed, by which each
sub-unit may develop. This table, modified as follows,
was used to project the ultimate land uses within the
area known as Calavera Hills.
A. For residential acres with a "Zoning Standard" of
"R-l-+" (Villages H, I, W, X, Z-1 and 2-21, we calculated
the projected EDU's as follows:
(GA-OS) x .67 x 1.5 = Projected EDU's
where:
GA = Gross Acres
OS = Open Space
.67 = Percentage of buildable land less area for streets
1.5 = Average build-out density per acre
and steep slopes
B. For residential areas with a "Zoning Standard" of IIR-1"
(Villages P-2, R-1, T and V), we calculated the projected
EDU's as follows:
(GA-OS) x .75 x 3.2 = Projected EDU's
.2
where :
GA = Gross Acres
OS = Open Space .67 = Percentage of buildable land less area for streets 3.2 = Average build-out density per acre
C. For Village B, which has an approved tentative map for
138 single-family lots, we used 138 EDU's.
D. For elementary school sites (Villages A and M) we used Section 13.08.081 (c) of the Carlsbad Municipal Code (CMC) to calculate the projected EDU's. of 600 students per elementary school times the rate of 1
EDU per 60 students equals 10 EDU's.
Figuring a pupil capacity
E. For the junior high school site (Village S), we also
used Section 13.08.081(c) of the CMC to calculate the projected EDU's. Figuring a pupil capacity of 1,000 students thes the rate of 1 EDU per 50 students equals 20 EDU's.
F. For residential areas with a "Zoning Standard" other than "R-1-3" or IIR-1" (Villages C, D, G, J, K, L, 0, P-1,
Q, and U), we used the maximum number of units allowed in the Master Plan as the projected EDU's.
G. For parks (Villages F, N, R-2 and Y) we used a rate
of two EDU's (one restroom facility) per 5 acres.
H. For the commercial areas (Villages E-1 and E-21, we projected that one-fourth of the acreage would be in buildings. In other words, each ten (10) acre commercial village would contain 2+ acres (108,900 sq. ft.) of gross leasable area (GLS). Then, using the EDU rate of 1 EDU per 1800 sq. ft. of GLA established in Section 13.08.081(c) of the CMC, we projected that each village would generate 60.5 EDU's.
4. Remainder GP - For the rest of the study area not already identified, we used the Land Use Element of the General Plan to project ultimate land use. The acreage of each land use designation was computed and ultimate EDU's projected as follows:
A. RL (0-1.5 du's per acre) - There are 330 acres in the remainder of the study area designated as "Low Density Residential (RL) .'I This area is composed of the Tootsie
K Ranch and an area known as Kelly Mountain or Cerro de la Calavera. It is projected that these areas will develop with the use of septic systems and not need sewer service through the satellite plant.
B. RLM (0-4 du's per acre) - There are 1360 acres in the
remainder of the study area designated as "Low-Medium
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Density Residential (RLM)." From this figure, we
subtracted the areas around Sunny Creek Road being
served by septic systems and areas that are too steep or within a floodplain to develop a net acreage
of 1113 acres. We then calculated the projected EDU's
as follows:
NA x .67 x 3.2 = Projected EDU's
where :
NA = Net Acres
.67 = Percentage of buildable land less area for streets,
3.2 = Average build-out density per acre
parks, etc.
C. Elementary Schools - We used the same calculations for
elementary schools as we described above under Calavera
Hills.
D. Junior High School - We used the same calculations
for the junior high school as we described above under Calavera Hills.
E. High School - For the high school site, we used
Section 13.08.081(c) of the CMC to calculate the projected
EDU's. Figuring a pupil capacity 1,200 students times the
rate of 1 EDU per 30 students equals 40 EDU's.
F. Open Space - Most of the open space designation
corresponds with the City owned land around Lake Calavera.
We estimated one-fourth of the area (105 acres) would
receive intensive park development. Then we used the
rate of 2 EDU's per 5 acres to project an ultimate demand
of 42 EDU's.
This completes our description of how we projected the
EDU's within the study area. However, there is one other
item that should be discussed.
One of the major assumptions we used was that actual
build-out of the various areas within the study area
would not exceed the projections used to determine the
EDU demand. In terms of the "switchover" units and the
approved TM units, this assumption has no impact. However, the Calavera Hills project and the "Remainder GP" area - are impacted by this assumption.
The Calavera Hills Master Plan provides for a maximum potential of 3,231 dwelling units. Under the agreement,
the maximum potential would be reduced to 2,704 dwelling
units. We have attached a modified Phasing Schedule from
the approved Master Plan to show the maximum number of EDU's
available per phase under the conditions of the agreement. This department will need to keep an inventory of the number of EDU's available as the Calavera
Hills project develops.
The remaining area of the General Plan provides for a
maximum potential of 5,935 dwelling units. Under the
agreement, there will only be enough EDU's made
available for a maximum potential of 2,518 dwelling units.
If the ultimate demand within the study area exceeds these figures, an alternative method of treating sewage would obviously have to be provided. All of this, though, is based on the accuracy of the numbers that we used. We believe that the land use figures we developed are on the conservative side and actual development will
occur well within our projections. There is also the
likelihood that the gallonage figure used per EDU will be less than what we used. Primarily, this will pro-
bably occur because of water conservation devices that will be required in the future.
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c . --
8
AGFQ3EMENT BETWEEN CITY OF CARLSBAD, CALIFORNIA AND LAKE CALAVERA HILLS ASSOCIATES
FOR CONSTRUCTION OF A 1.2 MILLION GALLON CAPACITY
SEWER PLANT AND NECESSARY APPURTENANCES AND TO PROVIDE
FOR THE FINANCING AND REIMBURSEMENT FOR
COSTS OF OVERSIZING-THEREOF.
TABLE OF CONTENTS
Section
RECITALS
1. DEFINITIONS
2. DEVELOPER'S OBLIGATIONS
A. Construct
B. Percolation tests
C. Dedications
D. Warranty
E. Acquisition of rights-of-way
F. Permits
G. Inspections
Page
1
4
H. Compliance with laws 9
I. Compliance with the precise development. .plan 9
J. Other responsibilities prior to acceptance 9
3. DEVELOPER'S RIGHTS
A. Reserve capacity.
B. Reimbursement
4. CITY'S OBLIGATIONS AND RIGHTS
10
10
A. Set and collect fees 10
B. Acceptance 10
C. Inspection 10
D. Decide which disposal system will be built 11
E. Cooperation 12
5. RESERVATION OF CAPACITY
A. Reservation for Developer i2
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Section Page
B. Developer subject to growth limitations 12
C. Discretionary approvals and building permits 13
6. PHASING
A. Permitted 13
B. Phase I 14
14 C. Phase I1
D. Discretionary approvals and building permits 15
7. REIMBURSEMENT
A. Calculation of amount 16
A.l Allocation of fail-safe line costs 16
B.
C.
D.
E.
F.
G.
H.
I.
J.
A.2 Calculation if project built in phases
Definition of cost
B.l Cost estimate
B.2 Actual cost to build the project
B. 3 Cost limitation
B.4 Risk of development prior to approval on Developer
Cost monitoring
Collection of reimbursement fee
Calculation of amount of fee
Swi tchovers
Delivery of fees collected to Developer
Waiver of reimbursement fee
Article XIIIA risk
Claim or dispute
16
17
17
18
18
19
19
19
19
20
20
21
21
22
ii. I.
'.
7. .. ._ ,.
Section
K. Service and facility fee
8. GENERAL CONSTRUCTIOM
A. Preparation of plans and specification--
change orders
B. Right to approve contractor
C. Right to approve equipment
D. Developer to maintain insurance
9. MISCELLANEOUS PROVISIONS
.I
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
N.
0.
P.
Q.
Indemnity of City .'
Developer not agent of City
Records
Payments on notices
Successors and assigns
Arbitration of disputes
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Notice of taxable possessory interest
Page
22
23
23
23
24
24
25
25
25
26
28
Anti-trust claims of Developer or Successors 28
Venue
Modification
29
29
Attorneys' fees 29
Right of City to inspect 30
Integrated agreement 31
Section headings and interpretation 31
Approval by City
Risk of loss
31
32
Participation in future works 32 '
.. iii.
'AGREEMENT BETWEEN CITY OF CARLSBAD, CALIFORNIA AND LAKE CALAVEIW HILLS ASSOCIATES
FOR CONSTRUCTION OF A 1.2 MILLION GALLON CAPACITY
FOR THE FINANCING AND REIMBURSEMENT FOR
SEWER PLANT AND NECESSARY APPURTENANCES AND TO PROVIDE
COSTS OF OVERSIZING THEREOF.
, 1979, This agreement is made this day of -
by and between the City of Carlsbad, California, a municipal
corporation (hereinafter called "City") and Lake Calavera
Hills Associates, a California partnership (hereinafter
called "Developer").
RECITALS:
A. Developer wishes to develop for residential and other
purposes certain parcels of property described in the Lake
Calavera Hills Master Plan (MP-l50(A)) as approved by the City
..
Council in Ordinance No. 9571, on file with the City,and
incorporated by reference (hereinafter called "Calavera Hills") .
B. Developer wishes to comply with and satisfy requirements
of City for provision of sewer service to Calavera Hills by
constructing and dedicating to City a satellite sewer treatment
facility .
C. The public facilities element of City's General Plan
requires, among other things, that sewage treatment capacity be
.available before development occurs. Presently no sewer facility
exists with capacity to serve Calavera Hills. If sufficient
sewer capacity is not available for proposed development, the
required finding of consistency with the City's General Plan
cannot be made and development cannot proceed. Construction of'
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this satellite sewer treatment facility would satisfy the
requirements of the General Plan for provision of sewage
capacity concurrent with need for the development. In addition,
Chapters 18.05 and 21.49 of the Carlsbad Municipal Code prohibit
development unless sewage treatment capacity is available.
D. To ensure the health, safety 'and welfare of the
citizens of Carlsbad it is necessary that the satellite
sewage treatment facility built by Developer be of sufficient
capacity to provide sewage treatment service to development
other than Calavera Hills.
E. A portion of the capacity of the sewage treatment
facility to be constructed by Developer will be used by
Calavera Hills. The remainder of the capacity will be used
. *< by development other than Calavera Hills.
F. Developer desires to be reimbursed for sums expended
to oversize the sewage treatment facility to serve development
other than Calavera Hills. The City has determined that the
public interest is served by construction of the satellite
sewage treatment facility by Developer. The public interest
is further served by reimbursement to the Developer by those
who will use the plant other than Calavera Hills of the
costs of oversizing. However, Developer recognizes, that
because of factors yet unknown, there is no assurance it
will receive the full amount of the reimbursement or even
any portion thereof.
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;'G. Developer desires to have reserved for Calavera Hills
certain rights to utilize capacity in the sewage treatment facility
without payment of a sewer connection fee for plant capacity.
Without such reservation of capacity , Developer would not enter
into this agreement. However, both City and Developer recog-
nize that City has an obligation to serve the best interest and
meet the needs of all residents, present and future, in the
City. Developer recognizes that its rights to capacity must
be subject to the City's obligation to all City's residents.
Therefore, Developer's rights to reserved capacity in the
plant will be limited to a proportionate share based on a
ratio of projected development in Calavera Hills to projected
development in the-entire area to be served by the plant.
.*
Reserved capacity rights are established by Sections 3 and
5 herein. , #.:
H. Developer recognizes that utilization of capacity
in the sewage treatment plant shall be subject to all existing
or future planning, zoning, building or other ordinances which
the City Council in its discretion imposes to regulate the
location, quality, quantity, pace or other aspects of develop-
ment on a city wide basis.
I. By Resolution No. 5871 the City Council, of City,
approved a Precise Devel-opment Plan for the development of
the sewage treatment facility and all necessary appurtenances.
Resolution No. 5871 is on file with the City and is incorporated
herein by reference. This agreement implements that resolution.
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The provisions of the Precise Development Plan as adopted by
Resolution No, 5871 shall prevail over any inconsistent pro-
visions of this agreement,
NOW, THEREFORE, in consideration of the recitals, and.of
the mutual obligations of the parties established by ,this agree-
ment, City and Developer agree as follows:
SECTION 1: DEFINITIONS
Whenever the following terms occur in this agreement, the
meaning shall be interpreted as follows unless the context in
which the term is used clearly requires a different interpre-
tation:
A. "Acceptance": A formal action by the City accepting .. any offer of dedication of the sewage treatment facility.
Acceptance may be of the entire project or of Phase,I and
Phase I1 of the project, respectively as provided herein.
Acceptance shall not constitute a waiver of defects by City.
B. "Drainaqe basin": Drainage basin shall mean all
areas described on the map contained in Exhibit A, attached
hereto and incorporated by reference herein.
C. "EDU": c_ EDU is an abbreviation of Equivalent Dwelling
0
Unit and is an approximation of that amount of sewage which is
. 'discharged daily by an average residential dwelling. Actual
structures or developments built or proposed are assigned an
EDU value by the City Engineer. The number of average daily
gallons per EDU as used in this agreement shall be updated
annually and adjusted to reflect actual metered flow exper- .
ienced during the previous years in the subject area provided,
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however that such adjustment may take into account condition of
the system, weather and any other factors which may affect flow.
D. "Fail-safe line": Fail-safe line means any effluent
or excess effluent disposal line which would carry effluent.from
the project to the ocean outfall.
E. "Master Plan Area or Calavera Hills": Master plan area
or Calavera Hills shall include all areas defined in the Lake
Calavera Hills Master Plan (MP-l50(A)) on file with the City
and incorporated by reference herein and shown for convenience
on Exhibit B, attached hereto and incorporated by reference herein.
F. "MGD": - Plant capacity expressed in millions of gallons
per day. ..
G. "Project": The 1.2 MGD capacity satellite sewage
treatment facility and necessary appurtenances designed and
constructed by Developer and approved by City in conformance . ..d
with this agreement. Project includes all facilities necessary
to collect, treat and dispose of 1.2 MGD of sewage.
H. "Work": Any and all obligations, duties and respon-
sibilities necessary to the successful completion of the project
assigned to or undertaken by Developer pursuant to this agree-
ment, including but not limited to all labor, materials,
equipment and other incidentals and the furnishing thereof.
SECTION 2: DEVELOPER'S OBLIGATIONS
A. Construct: Developer agrees to construct at Developer's sole
cost and expense the project in full conformance with plans and speci-
fications which are to be prepared by Developer and submitted to City's
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-.
.
Public Works Administrator for approval. Work, except for grading
approved by the Public Works Administrator, may not commence until
. the plans and specifications are approved. Developer shall be
solely responsible for completing all phases of design and construc-
tion of the project. Developer shall bear all design and construc-
tion costs associated with building the project, including but not
limited to all professional fees, applicable permit fees, taxes or
other assessments, and all labor and material costs of the project.
All design, contract awards and construction contracts shall be
acted upon by City within thirty days after receipt of the complete
plans and specifications and contract documents for the project to
ensure their conformity with the Precise Development Plan, the
provisions of this agreement and any appl-icable state or local
laws. Developer shall submit the plans and specifications and
contract documents in a complete and approvable form. Except as tc-v
otherwise provided in Section 6 herein construction of the project
shall be completed in one phase.
rights are established more fully in Section 8 of this agreement.
B. Percolation tests: Developer shall conduct tests
Construction obligations and
necessary to determine if sufficient capacity exists in either the
Buena Vista recharge basin or the Agua Hedionda recharge basin to
provide for disposal and reclamation of the difference between the
capacity of .5 MGD and 1.2 MGD.
immediately upon the execution of this agreement and shall be com-
pleted prior to commencing construction of the project unless the
Such tests shall be initiated
City Manager, in writing, extends such period or decides no further
tests are necessary. Upon the completion of such tests, Developer
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shali submit the test results and accompanying data to the
City's Public Works Administrator for review and verification. - 0. Dedication: Upon full and satisfactory completion
of the project, in conformity with the approved plans and
specifications, and the items specified is Paragraphs I and
J of this section, Developer shall offer to dedicate the
project to City. If this offer of dedication is accepted
by City, Developer shall immediately transfer all rights,
title and interest in the project free and clear of all liens
and encumbrances whatsoever to City. Prior to any offer of
dedication Deveioper shall secure all approvals, certifications
or permits required by the State Regional Water Quality .-
Control Board or any federal, state or local law.
D. Warranty: Developer shall fully guarantee or warranty
, a.: all work for-a period of one year from the date of final
acceptance by City. City shall conduct periodic inspections
of the sewer plant and a final inspection prior to the
expiration of the warranty. If within said period any structure
or part of any structure furnished or installed or constructed,
or caused to be installed or constructed by Developer, or any of
the work done under this agreement, fails to fulfill any of
the requirements of this agreement or the plans and specifi-
cations referred to herein, Developer shall without delay
and.without any cost to City, repair or replace or reconstruct
any defective or otherwise unsatisfactory part or parts of
the work or structure. Developer will be notified in writing
of any deficiencies which must be corrected but failure on
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the part of City to notify Developer shall not affect any of
City's rights under this provision.
Developer shall commence repair of any defect or deficiency
within ten working days after notification by City. The repairs
shall be completed expediently and within a reasonable period of
time. If the Developer fails to commence or complete repairs
within these time limits, City may undertake and is hereby authorized
by Developer to make, at City's option, the repairs itself and
assess the costs to the Developer. Repair pursuant to this warranty
shall be at the cost of the Developer and no reimbursement shall
be given therefor. Should the exigencies of the case require
reports or replacements to be made before Developer can be notified,
City may, at its option, make the necessary repairs or replacements
or perform the necessary work and assess the. costs of. such repairs
to Developer.
..
I &-.%
Costs assessed may be retained by City from any
reimbursement collected and due to Developer.
E. Acquisition of rights-of-way: Developer shall be
, responsible for acquisition of any land, rights-of-way, or other
interests in property necessary for the construction of the project.
City shall participate in such acquisition to the extent specified
in the Precise Development Plan.
. ' F. Permits: Developer shall not commence work, except for
grading approved by the Public Works Administrator, under this
agreement until Developer has obtained the necessary permits
and made the necessary deposits as may be required by a
federal, state, or local law. Necessary permits include
but are not limited to building permits, discharge permits
-8-
or any other discretionary or mandatory government approval.
G. Inspections: Developer shall provide for all required
inspections as provided herein. Inspection costs shall be
included in the actual project cost.
H. Compliance with laws: Developer shall comply with
all applicable federal, state or local laws in the execution
of this agreement. Developer shall also comply with all
orders, regulations and requirements of the State Regional
Water Quality Control Board or any other federal, state or
local agency with jurisdiction over the project.
I. Compliance with the Precise Development Plan: In
execution of its obligations under this agreement, Developer
shall comply with all conditions of the Precise Development
Plan as adopted by the City Council of City in Resolution No.
5871, with the Lake Calavera Hills Master Plan (MP-150 (A)) and
with the City of Carlsbad Environmental Impact Report and
. 6.:
Facilities Plan for a Satellite Sewage Treatment Facility
as certified by the City Council, a copy of which is on file
with the City.
J. Other responsibilities prior to acceptance: Until such
time as all work required by this agreement is fully completed
. ‘and accepted by City, Developer will be responsible for the
care, maintenance of and any damage to such work. Developer
shall give good and adequate warning to the traveling public
of each and every dangerous condition existent in said work,
and will protect the traveling public from such defective or
dangerous conditions.
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*
SECTION 3: DEVELOPER'S RIGHTS
A. Reserve capacity: Consistent with the provisions of
Section 5 herein, City shall reserve for the sole and exclusive
use of Developer 41.77 percent of the sewage treatment capacity
in the project as approved by the State Regional Water Quality
Control Board, provid-ed, however, that nothing in this agree-
ment shall exempt Developer from any local building or zoning
ordinances. Developer's capacity rights may be adjusted by
mutual agreement of the parties to conform with the latest
growth projections for the basin and City's most recent gallon
requirement per equivalent dwelling unit as calculated based
on the average daily dry weather flow. Such agreement shall
not be unreasonably withheld.
B. Reimbursement: Developer shall have the .right to
reimbursement for the cost of oversizing the project as provided
in Section 7 herein. This right shall continue for twenty
years at which time it will cease whether or not Developer
has been reimbursed for the cost of oversizing.
l a\.'
SECTION 4: CITY'S OBLIGATIONS AND RIGHTS
A. Set and collect fees: City agrees to collect a sewer
connection fee from any person or development other than Calavera
Hills connecting to or using capacity of the project as provided
in Section 7 herein.
B. Acceptance: Upon offer of dedication; receipt of
inspector's certificate; receipt of any approvals, certificates
or permits required by the State Regional Water Quality Control
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.
Board or any federal, state or local law; and warranty or guarantee
as provided in Section 2.D of this agreement, City shall consider
acceptance of project from Developer.
withhold acceptance.
to repair, correct or reconstruct any defect in the project or any
work not in conformity with the approved plans and specifications or
as required for final certification by the Regional Water Quality
Control Board. Developer shall then make any repair, correction
City shall not unreasonably
Prior to acceptance City may require Developer
or reconstruction required by City at Developer's own cost and
expense and shall receive no reimbursement for any portion thereof.
City's obligations and rights under this section are contingent
upon the construction of the sewer plant in conformance with the
plans and specifications to the satisfaction of the City and upon
approval and certification of the plant by the State,Regional
Water Quality Control Board or any other federal, state or local
agency with jurisdication to approve, permit or certify the plant.
Acceptance may be made in two phases as provided in Section G herein.
..
. a;.:
C. Inspection: City may provide a project inspector or
qualified operator to act as inspector of the project.
have the right to conduct periodic inspections
and prior to its acceptance of the plant.
.access to the plant and all premises whereon construction is
occurring for the purpose of these inspections.
defined in this section are in addition to any other required
City shall
during construction
Developer shall allow
The inspections
inspections.
D. Decide which disposal system will be built: - The City
Council shall decide whether to require the consti*--i..tion of an
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effluent fail-safe line or a water reclamation system or a combination
of both prior to the commencement of any construction on the project,
unless for good cause the Council extends the time for decision to
no later than prior to acceptance of any portion of the plant. If
sufficient disposal capacity to dispose of 1.2 MGD may be provided
by the recharge basins, such discharge is preferrable to the
construction of an effluent fail-safe line. City's rights and
obligations under this section shall be subject to the provisions
of Section 6 herein, and to the requirements of the Regional Water
Quality Control Board.
E. Cooperation: City agrees not to unreasonably withhold
any necessary local permits required by Developer fur the project or
any part thereof.
..
City also agrees to use its best efforts to
assist Developer in obtaining any certification, approval or
permit required by this agreement.
I .e..:
SECTION 5: RESERVATION OF CAPACITY
A. Reservation for Developer: Upon acceptance of this
sewer plant, all rights to sewer capacity shall vest in City.
City shall reserve for the sole and exclusive use of Developer
41.77 percent of whatever capacity is approved by the State Regional
Water Quality Control Board.
.consistently with Section 6 of this agreement. Capacity reserved
for Developer shall not be used for any development other than
Calavera Hills. Developer shall, however, be subject to the provisions
of Section 5.B of this agreement.
City may allocate such capacity
B. Developer subject to growth limitations: Developer
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c
.
shall.be subject to any existing or future zoning, building or
other laws established or adopted by City to regulate the location,
quality, quantity, pace or other aspects of development in City.
Developer shall also be subject to all General Plan requirements of
the City including any proposals adopted to implement any element
of the General Plan and to the Lake Calavera Hills Master Plan
conditions.
C. Discretionary approvals and building permits: Discretionary
approvals for Calavera Hills and the issuance of building permits
for structures to be served by the project shall be governed by any
existing or future City ordinances regarding the issuance of such
approvals or permits. Developer agrees that no structures con-
structed pursuant to building permits-issued as authorized by this
section, or no individual lots created by discretionary approvals,
if any, shall be transferred or conveyed in any manner, including *..
but not limited to sale or lease, or occupied until the project has
been certified as operable by the Regional Water Quality Control
Board and accepted by the City. If a final map is approved,
Developer may transfer or convey that land described in approved
Tentative Map No. CT 76-12, as approved by the City Council in
Resolution No. 5145, to a single transferee, provided that such
land and transferee shall be subject to Sections 6.D and 9.E of
this agreement.
PHASING -- SECTION 6:
A. Permitted: The project may be accepted in no more than
two phases as provided in this section. Construction phasing
shall not occur if the Regional Water Quality Control Board requires
the construction of a fail-safe line before it will certify capacity
Of .5 MGD.
-13-
... ._
.
B, Phase I: Phase I shall consist of the following items:
1. Construction of the proposed sewage treatment plant
as substantially shown on Precise Development Plan Exhibits G,
A-1, B, D and F-4 of Resolution No. 5871 of the City Council of the
City of Carlsbad, of sufficient capacity to fully treat 1.2 MGD of
sewage, including but not limited to the complete treatment plant,
force mains, mechanical fail-safe prstection, percolation fields,
storm protection, recovery wells and transmission lines and storage
necessary for operation of the plant;
2. Construction of the reversible force main as specified
in Condition No. 4 of the Precise Development Plan;
3. Construction of percolation ponds and a water
reclamation system as described in Conditions No. 1 and 5 of the
Precise Development Plan;
4; Acquisition of the easement to Tamarack Avenue as . *-.:
described in Condition No. 11 of the Precise Development Plan;
5. Certification by the State Regional Water Quality
Control Board of the plant with discharge rights of at least .5
MGD of treated effluent.
C. Phase 11: Phase I1 shall consist of the following item:
Construction of either an effluent fail-safe line or water recla-
mation system or a combination of both, approved by the City Public
Works Administrator and the Regional Water Quality Control Board, of
sufficient capacity to dispose of the difference between the capacity
approved in Phase I and 1.2 MGD. If the project is built in phases,
construction on Phase I1 shall be completed not later than two years
after City acceptance of Phase I and its certification as operable
by the State Regional Water Quality Control Board, unless such time
-14-
. . .
-_
is extended by the City Council upon showing of good cause.
D. Discretionary approvals and building permits: If the
project is built in phases, and if all other requirements for
issuance or approval are met, City shall begin to issue to’Developer
building permit-s and process approvals in an amcmnt not to exceed
the EDU equivalent of 41.77 percent of the discharge capacity of
Phase I plant as originally certified by the State Regional Water
Quality Control Board.
and building permits have been issued for Calavera Hills to utilize
41.77 percent of the original certified capacity in the plant, no
When sufficient discretionary approvals
other approvals shall be processed or building permits issued for
development within Calavera Hills until Phase I1 has been constructed
and a system sufficient to dispose of 1.2 MGD of treated effluent
has been certified as operable by the State Regional Water Quality
Control Board and accepted by the City.
..
. .A,.:
Developer agrees that no
units constructed pursuant to building permits issued according to
this section, or individual lots created by discretionary approvals,
if any, shall be transferred or conveyed in any manner, including
but not limited to sale or lease, or occupied until the project is
certified as operable by the State Regional Water Quality Control
Board, has received all required approvals and has been accepted
. .by City. If a final map is approved, Developer may transfer the
land described in Tentative Map No. CT 76-12, as approved by the
City Council in Resolution No. 5145, to a single transferee, provided
however, that such land and transferee shall be subject to this
section and Sections 5.C and 9.E of this agreement.
-15-
. I .. -
SECTION 7: RE IMBU RS EE'IENT
A. Calculation of Amount: City agrees to collect a
fee as provided in this section so that Developer may be
reimbursed for the costs of oversizing the project; that is,
the difference between the estimated cost to build a sewer
treatment facility and all necessary appurtenances of capacity
sufficient to serve the projected total buildout of Calavera
Hills alone, as if no other project were being built, and the
actual cost of the project.
City and Developer agree that, for the purposes of this
Section, a plant of capacity to treat and dispose of .5 MGD of
sewage is deemed sufficient to serve-Calavera Hills alone.
A.l. Allocation of fail-safe line costs. City and
Developer agree that if the Developer is required to build a .
fail-safe line as a condition of, or before, obtaining initial
certification of the project, or Phase I of the project, that
the cost of a facility to serve Calavera Hills alone shall
include the costs of a .5 MGD capacity fail-safe line.
If, on the other hand, a fail-safe line is not required
as part of the initial certification, the cost of a facility
to treat Calavera Hills alone shall include fifty percent of
the cost of Phase 11.
,
A.2. Calculation if Project Built in Phases: If the
project is
amount for
but before
built and accepted in phases, the reimbursement
the period after completion and acceptance of Phase I,
completion and acceptance of Phase 11, shall be equal
-16-
to the actual cost to build Phase I, plus the estimated cost to
build Phase 11, minus the estimated cost to build a sewage
treatment facility and all the necessary appurtenances of
capacity sufficient to serve the projected total build out of
Calavera Hills alone as allocated in Section 7.A.1. above. The
reimbursement amount for the tine after completion and
acceptance of Phase I1 shall be as stated in paragraph A above
and as allocated in Section 7.A.1. above.
B. Definition of Cost:
B.l. Cost Estimate. No later than the time of sub-
mission of the plans and specifications, Developer shall
submit a detailed itemized cost estimate for the project and
a detailed itemized cost estimate for a sewage treatment
facility and all necessary appurtenances of capacity sufficient, &-.:
to serve the projected total build outof Calavera Hills alone
as if no other project were being built. If the project is to
be constructed in phases, Developer shall also submit a detailed
itemized cost estimate of the construction of each phase of the
project. If Developer is required to build a fail-safe line as
a condition of, or before, obtaining initial certification of
the project or Phase I, it shall also submit a detailed itemized
cost estimate of the cost of constructing the .5 MGD capacity
line.
days after submission of such estimates in a complete and approvable
form. Upon approval of such estimates by the City, they shall
be attached to this agreement as Exhibit C and shall become a
City shall act upon the cost estimates no later than thirty
-17-
.
part-hereof. Developer, at its option, may terminate this
agreement if it does not agree with City's determination under
this section.
B.2. Actual Cost To Build The Project. Actual cost
to build the project shall mean the sum total dollar cost of
actual expenditures for construction of the project, including
but not limited to labor, materials, plan checking, engineering,
surveying, design, interest during the construction period of
the project on borrowed funds necessary for the actual construction
of the project, fees for applicable permits, costs attributable
to land, right-of-way or other interests in real property
necessary for the project not to exceed the fair market value
at the time of acquisition or acceptance of the project,
whichever is less, and other costs necessary for the construction
of the project in a good workmanlike manner in accordance lwith
the plans and specifications, but not including any preliininary
reports, studies, attorney's fees or other such charges.
'
Actual cost to build the project shall be documented to the
satisfaction of the City and shall be approved by the City
Council. If the project is build in phases, the actual cost
to build Phase I or Phase I1 shall be defined and determined
in the same way as the actual cost to build the project.
B.3. Cost Limitation. The actual cost to build the
project and the actual cost to build Phase I or Phase I1 shall
not exceed the estimates as approved pursuant to Section 7.B.1.
above. Any difference between actual costs and the estimates
shall be absorbed by Developer and shall be disregarded for purposes of
-13-
determining reimbursement.
B.4. Risk of development prior to approval on Developer.
City shall have no obligation to reimburse Developer until the cost
estimates required by Section 7.I3.1 are approved by City. Developer
shall bear the full risk of any loss occasioned to Developer because
it commenced construction prior to approval of the estimates.
Developer shall receive no reimbursement and shall have no recourse
against the City for any loss occasioned to Developer because the
estimates were not approved or the agreement was otherwise terminated
by Developer prior to completion and acceptance of the project by
the City.
C. Cost monitoring: In addition to the rights stated elsewhere ..
in this agreement, City shall have the right to monitor all costs
for the project. Developer shall provide City with.all receipts,
invoices, bills or other information requested by City to aid in . &-.'
the cost monitoring.
D. Collection of reimbursement fee: City agrees to collect
a fee for each connection to the plant other than Calavera Hills
as a condition of permitting connection to the sewer plant, subject
to the limitations provided below.
Subsection K of this section, no sewer connection fee shall be
charged to units in Calavera Hills.
reimbursement except from the collection of these fees.
Except as provided in
Developer shall receive no
E. Calculation of amount of fee: City shall set the
fee by dividing the amount to be reimbursed as determined by
Subsection A of this section by the total projected number of
units which will use capacity in the plant other than Calavera
-19-
-- .
.
Hills. City and Developer
units, other than Calavera
agree that the projected number of
Hills, which will use capacity in the
project,is 3,645 EDU's.
necessary to accommodate changes in City's land use policies.
Developer may request City to take the action necessary to revise
the reimbursement fee if the figure is significantly reduced. Upon
such request, City may, in the reasonable exercise of its discretion,
adjust the fee or not adjust the fee.
units is based on calculations shown in Exhibit D of this agreement.
This figure may be adjusted by City as
This projected number of
F. Switchovers: Notwithstanding Paragraph D of this section,
City may connect units presently serviced by the Encina Sewage Treat-
ment Plant to the project without obligation to collect a reimburse-
ment fee.
of capacity in Encina which became available from a switchover
connection, City agrees to collect a fee as provided in this section
..
However, upon allocation to new construction in the City
, xr'
as a condition of such allocation.
G. Delivery of fees collected to Developer: City shall
periodically deliver to Developer as reimbursement 95 percent
of their reimbursement fees collected as they are from time to
time collected. City will retain 5 percent of the amount
collected as compensation for the expense of administration
of this agreement. If the pro-ject is built in two phases,
City shall deliver to Developer only that amount attributable
to Phase I. Amounts attributable to Phase I1 shall be
retained by City until the completion and acceptance of Phase 11,
at which time the retained funds shall be paid over to
-20-
Developer. If Phase I1 is not completed within the time stated
in Section 6 of this agreement, or any extension pursuant thereto,
the funds retained shall become the property of the City and any
right, title or interest Developer may have in those funds shall
cease. Such funds shall be applied by City to completion of
Phase I1 or if such application is deemed by the City Council to
be not feasible, the funds shall be deposited in the Joint Sewer
Construction Fund.
H. Waiver of reimbursement fee: Developer may waive
reimbursement for any unit using capacity in the plant. Such
waiver shall be made by letter to the City. No reimbursement
fee shall be collected on connections for which a waiver has
.. been made.
I. Article XIIIA risk: Developer recognizes that the
I City's right to collect fees and its right to reimbursement
from those fees may be subject to the provisions of Article
XIIIA of the California Constitution. If it is determined
by a court of competent jurisdiction that the fees levied
pursuant to this agreement or other fees of similar charac-
teristics are subject to Article XIIIA of the California
Constitution, City and Developer shall in coordination use
their best efforts to provide for collection of the fee in
conformance with Article XIIIA. If it is determined that
fees cannot be collected under this agreement because of
the provisions of Article XIIIA, Developer shall receive no
other compensation or reimbursement hereunder. Any attorney
fees or other costs expended in the determination of whether
-21-
the fees are governed by the provisions of Article XIIIA shall
not be reimbursed to Developer.
J. Claim or dispute: In the event of a claim or a
dispute over the City's rights to collect the reimbursement
charge hereby established, or to withhold the water or sewer
service to any property pending receipt of said reimbursement
charge, Developer shall have the option to (1) waive such
reimbursement charge or (2) assume all obligations and liability
and hold City harmless from any loss, cost or expense, including
judgments and attorneys' fees arising from the City's attempt
to collect said disputed charges. City agrees to use due
diligence to preserve and maintain Developer's reimbursement
benefits and exercise good faith with respect to Developer's
interest in the event of a dispute. If it is determined by
a court of competent jurisdiction that the disputed claim
i . &.:
or charge shall not be paid, then Developer shall not receive
reimbursement therefor and any amounts paid to Developer on
account of collection of the disputed fee shall be refunded
to City.
K. Service and facility fee: City reserves the right
to levy a fee on each connection to the plant in an amount
sufficient to pay for the cost of any capital improvement
including, but not limited to sewers, drains, pumps or other
appurtenances necessary to provide sewer service.
fee shall be in addition to any reimbursement fee, but may
Such
be levied at the same time. City may also levy a periodic
-22-
service charge on each connection to the plant to pay for
costs of continued service, maintenance and operation.
Developer or his successors or assigns shall pay upon
connection to the plant the fees or charges described in this
paragraph, but shall not pay a reimbursement fee, unless the
number of units connected to the plant results in utilization
of capacity in excess of 41.77 percent of the total plant
capacity .
SECTION 8: GENERAL CONSTRUCTION
A. Preparation of plans and specification--change orders:
Developer shall prepare at Developer's cost and expense all plans
and specifications necessary for construction of the project.
Said plans and spe'cifications shall be approved by City's
.-
Public Works Administrator prior to the commencement of any
work on the project except for grading approved by the Public
, *.:
Words Administrator. City shall act within thirty days after
submission of completed plans and specifications. All work
shall be done in conformance with the approved plans and
specifications, unless prior written authorization from the
City's Public Works Administrator is secured by Developer.
B. Right to approve contractor: City shall have the
right to approve all contractors or subcontractors performing
any work on the project. City shall act within ten working
days after submission. Written approval of the Public Works
Administrator shall be deemed approval of the City.
C. Right to approve equipment: City shall have the
right to approve all equipment, material, or goods used in
construction of the project. City shall act within ten
-23-
. ^. L
working days after submission of the final plans and specifications.
Written approval of the Public Works Administrator shall be
deemed approval of the City.
D- Developer to maintain insurance: Developer or its
contractors shall maintain in force during the full period of
construction pursuant 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.
be submitted to City for its approval prior to initiation of
The proposed insurance contract shall
insurance coverage. The insurance contract shall’ have limits
of not less than $1,000,000.00 single limit coverage and City
..
shall be listed as an additional named’insured. Prior to
commencement of actual construction, Developer shall submit
.s.:
a certificate of the insurance to City which shall provide for
at least forty-five days notice of cancellation or modification
of coverage or limits. Developer or its contractors shall
also maintain any bonds or insurance required by law, including
Worker’s Compensation, and City shall be listed as an additional
named insured.
SECTION 9: MISCELLANEOUS PROVISIONS
A- Indemnity of City: Developer shall indemnify, assume
the defense of, and hold free and harmless, City, its officers,
agents, employees and any engineer, architect or other consultant
utilized by City on the project from any and all obligations,
-24-
liabilities, liens, claims, demands, losses, damages and
expenses, of whatever type or nature, including, but not
limited to, attorneys' fees and all litigation costs arising
out of Developer's design or construction of the proposed
facilities or any other act or omission to act by Developer,
its agents, servants, employees, invitees, or independent
contractors which are required by this agreement.
Notwithstanding the foregoing, the indemnity agreement
created this section shall not indemnify the City, its
officers, agents or employees against any liability arising
from the negligence or willful misconduct of City, its officers,
directors, agents, employees or independent contractors.
B, Developer not agent of City: Neither Developer nor
any of Developer's agents or contractors are or shall be
considered to be agents of City in connection with the per-
I I Jr.:
formance of Developer's obligations under this agreement.
C. Records: City will maintain complete records of
all connection fees received. Such records shall be open
to Developer upon reasonable notice to City.
D, Payments on notices: All notices, demands and
requests which may be or are required to be given or made by
either party to the other party shall be in writing. All
notices, demands and requests by Developer to City shall be
sent by United States registered mail, postage prepaid,
addressed to City as follows:
-25-
.
City Manager
City of Carlsbad
1200 Elm Avenue Carlsbad, California 92008
All notices, demands, requests and payments by City to Developer
shall be sent by United States registered mail, postage prepaid,
addressed to Developer as follows:
Lake Calavera Hills Associates
3088 Pi0 Pic0 Avenue, Ste. D Carlsbad, California 92008 Attn: Roy J. Ward
or to such other addressee and to such other place as Developer
may from time to time designate in written notice to City.
E. Successors and assigns: The covenants and agreements
contained in this agreement will be binding upon and insure
to the benefit of City and its successors and assigns, and
Developer and its successors and assigns; provided, however,
Developer shall not convey, assign or otherwise transfer its
rights or obligations hereunder without the prior written
, &.-.:
consent of the City.
Developer shall not assign the right to receive reim-
bursement pursuant to the provisions of this agreement without
prior written approval of City.
limit the assignments so as not to be required to make
payments to multiple assignees under circumstances which may
create an administrative burden for City. Developer may
grant a security interest in or pledge the rights of Developer
to receive reimbursement hereunder to institutional lenders
City reserves the right to
for the purpose of securing obligations of Developer to such
lenders.
-26-
If prior to the completion of the project Developer conveys
any land located within Calavera Hills to any person, such conveyance
shall expressly include a provision that the grantee shall assume
a proportionate share of Developer's obligations under this
agreement. Said provision shall be approved by City prior to the
grant.
This agreement shall be recorded in the County Recorders
Office and a notation of the fact of this agreement and its
restrictions shall be noted on any final map for any property in
Calavera Hills.
. F. Arbitration of disputes: Any controversy or claim
between the parties to this agreement, including but not
limited to any claims, disputes, demands, differences, contro-
versies, or misunderstandings arising under, out of, or in
relation to this agreement, or any alleged breach of this agree-
ment, shall be submitted to and determined by arbitration in
accordance with the California Arbitration provisions contained in
. .rz.
Code of Civil Procedure Section 1280 et seq., as amended from time
to time, except as to those determinations under this agreement
made in the sole discretion of the City or its Council.
Subject to the provisions of Code of Civil Procedure
(Section 1296, the arbitrator or arbitrators shall 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 law shall appear
upon the face of the award. As to all questions of fact,
-27-
.
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.
G. 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 in
this document, the private party may be subjected to the
payment of personal property taxes levied on such interest.
H. Anti-trust claims of Developer or Successors:
By entering into this agreement or any subcontract pursuant
to this agreement, Developer, each contractor, and each
subcontractor who performs work or who supplies goods,
services or materials in accordance with the terms of this
agreement hereby offers and agrees to assign to City 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 anti-trust action any of them may have
under Section 4 of the Clayton Act (15 U.S.C. Section 15)
or under the Cartwright Act (Chapter 2 commencing with
Section 16700 of Part 2 of.the Division 7 of the Business and
-28-
.
Professions Code), arising from the purchases of goods,
services or materials pursuant to this agreement or any
related subcontract. This assignment is made and becomes
effective at the time City accepts the proposed facilities
and land transfer without further acknowledgement of the
parties. Developer agrees to insure that a comparable
provision is included in all contracts or subcontracts at
all tier levels which are executed pursuant to this agreement.
I. Venue: In the event of any legal or equitable
proceeding to enforce the terms or conditions of this agree-
ment, 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.
-.
J. Modification: This agreement may not be altered . Jr.:
in whole or in part except by modification in writing,
executed by both parties to this agreement.
K. Attorneys' fees: In the event any arbitration
proceeding, administrative proceeding 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 costs associated with the proceeding as determined
by the Court, the presiding officer, or the arbitrator
authorized to make a determination of the issues in addition
to any other relief to which the prevailing party may be
entitled.
-29-
-_ . . ..-
.
If 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 representatives, the party that causes the other
party to become involved in the proceedings shall be liable
to that party for reasonable attorneys' fees and costs
of the proceeding incurred by that party.
reasonable attorneys' fees and all costs shall be determined
The award of ..
as provided above.
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 or 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.
L. Riqht of City to inspect: Both parties to this
agreement understand that City intends to approve, or inspect
and approve, all phases of design and construction of the
proposed facilities. Developer shall supply City with
such information as City deems necessary from time to time
-30-
in City's sole discretion to properly review all design and
construction phases of the contract and to provide City with the
opportunity to inspect the proposed facilities from time to time
upon request.
M. Integrated aqreement: The reimbursement provisions for
payments to Developer by the City (which is conditioned on City'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.
N. Section headings and interpretation: All'clauses contained
i I .c--
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.. By Resolution No. 5871 the City
Council, of City, approved a Precise Development Plan for the
development of the sewage treatment facility and all necessary
appurtenances. The provisions of the Precise Development Plan as
adopted by Resolution No. 5871 shall prevail over any inconsistent
provisions of this agreement.
The headings of sections herein are used for convenience only
and shall not affect the meaning or the contents thereof.
0. Approval by City: Except as otherwise expressly provided
herein, approval by City shall mean written approval by the City
-31-
Manager.
P. Risk of loss: Prior to acceptance of the project, the
risk of loss shall be on Developer.
phases, the risk of loss for Phase I shall pass to City after
acceptance, but the risk of loss for Phase.11 shall remain on
Developer until acceptance of Phase 11.
If the project is built in
Q. Participation - in future works: If at any time before
expiration of the warranty period detailed in Section 2.D above,
City is required by the Regional Water Quality Control Board,
or any other state or federal agency, to install additional
treatment works or disposal systems, including a fail-safe
line, in order to ensure continued certification and ability
to treat and dispose of up to 1.2 MGD of sewage, Developer
.-
agrees, on behalf of himself and his successors or assigns,
to pay 41.77.percent of the cost of such works or systems.
such works or systems are required after such warranty period
expires, Developer agrees, on behalf of himself and his
successors or assigns, to not oppose an assessment district
formed to finance such works, and that City may collect a fee
to finance such required works or systems levied on all units
, a.: If
to be constructed thereafter which will be served by the plant,
including units in Calavera Hills.
section shall be in addition to any warranty or guarantee
The provisions of this
required by this agreement.
///
///
I//
-32-
e IN WITNESS WHEREOF, the parties have executed this agree-
ment in duplicate as of the day and year above written.
ATTEST : CITY OF CARLSBAD, a municipal corporation of the State of
California
BY
ALETHA L. RAUTENKRANZ RONALD C. PACKARD, Mayor
City Clerk
LAKE CALAVERA HILLS ASSOCIATES, a California partnership
BY
BY
*.
APPROVED AS TO FORM:
Vincent F. Biondo, Jr.
City Attorney
BY
Daniel S. Hentschke
Assistant City Attorney
-33-
...
EXHIBIT 8. ..
EXH1BIT"C" WILL CONSIST OF CERTAIN
COST ESTIMATES PREPARED AND APPROVED
ACCORDING TO SECTION 7 OF THIS AGMEMENT.
WHEN THOSE ESTIMATES ARE PROPERLY PREPARED
AND APPROVED, THEY SHALL BE ATTACHED HERE AS EXHIBIT "C".
*.
MEMORANDUM
DATE :
TO:
October 19, 1979
City 'Manager .
FROM: Planning Director Jc#- *
SUBJECT: CALAVERA HILLS SATELLITE TREATMENT PLANT - EDU PROJECTIONS
Per your request, herein are the EDU projection figures that were developed by this department for use in the Calavera Hills Drain-
age Basin.
. and accepted by the consultant for Calavera Hills. The gallonage used for an EDU was established by the Public Works Administrator.
ASSUMPTIONS:
The land use projections have been coordinated with
\
1. Existing development will generate sewage at an EDU rate of
246 gpd.
2'.
3. Actual build-out shall not exceed the projections used (see
New development will generate sewage at an EDU rate of 200 gpd.
attached exhibits) .'
Projected Gallons/ Total Gal/ Total Gal/ EDUs Per EDU Development : Basin
Calavera Hills = 2704 X ,200 = 540,800 (41.77%)
- Switchover -
. Approved TM's = .
Remainder GP =
-.
629 X 246 = 154,734 (11.95%)
478 X 200 = 95,600 ( 7.38%)
2518 X 200 = 503,600 (38.90%)
Total Gallons/Basin 1,294,734
MZ
..
..
POTENTIAL SFJI TCHOVE R
Royal Homes ...,.,..,, 68 edu's
. El Camino Mesa.,,,,,. 68 edu's
Woodbine,,.,,.,.,.,,,l48 edu's .
Meadows,.,,,,.,,..,,. 9.0 edu's
Palisades.....,,,,...ll9 edu's
Chestnut Hills.,,,...136 edu's -
Tota1,.,,.,.629 edu's ',
APPROVED PROJECTS .
.Chestnut Hills,,,.,,m108 edu's
Quail Ridge,,,..,.,,.234 edu's-
Palisades...,......,.l36 edu's
Tota1...,.,.478 edu's
-
' GENERAL PLAN LAND USES IN. REMAINDER
. LAND USE ACRES MAX, EDU's
330 4 95.
Robertson, Kelly, 1113" 4452
RLM(0-4) Sunny Creek Road
3 Elementary Schools 30 . 30
1 Junior High School 20 20
PROJECTED EDU ' s
0.' (Septic)
2386 **
30
20
1 High School
Open Space
40
420
40 40
42 42
TOTAL 2518
-
* 1360 gross acres - 247 acres undevelopable = 1113 net acres
** Acres x -67 (percentage of'buildable land less area for streets)
x 3.2 (average build-out density) = Projected EDU's
,
..
.. -~ *\ i I' -_
.. . .. .. '. a.
.I .
I . .' 'N 0-s (CUL') ' Pixk 2
. .
..
4 ..
-.
..
w EBI i ,I I
iI
. ..
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RESOLUTION NO. 6000
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
CALIFORNIA, APPROVING AN EN THE CITY OF CARLSBAD AND ILLS ASSOCIATES FOR CONSTRUCTION N GALLON CAPACITY SEWER PLANT PPURTENANCES AND TO PROVIDE NG AND REIMBURSEMENT FOR COSTS G THEREOF, AND AUTHORIZING THE E SAID AGREEMENT.
ad, California,
does hereby resolve a
1. That that between the City of
Carlsbad and Lake ssociates for construction
of a 1.2 millio nt and necessary
appurtenances a cing and reimbursement
for costs of o which is attached
hereto marked Exhibit A and t hereof, is hereby
approved.
2. That the Mayor of the lsbad is hereby
and on authorized and directed to execute said a
behalf of the City of Carlsbad.
*-
PASSED, APPROVED AND ADOPTED at g of the
held on the City Council of the City of Carlsbad, C
day of , 1979 by the following
AYES :
NOES :
ABSENT :
ATTEST :
RONALD C. PACKARD, Mayor \*
!
ALETHA L. RAUTENKRANZ, City Clerk
(SEAL)