HomeMy WebLinkAbout1987-05-19; City Council; 9011; BUENA VISTA CHANNEL MAINTENANCE AGREEMENT* CllpF CARLSBAD - AUtNUwlLL . L-r" I!
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MTG. 5/19/87
DEPT. I TITLE: BUENA VISTA CHANNEL
CITY M DEPT. CA
CITY A' MAINTENANCE AGREEMENT
RECOMMENDED ACTION:
That the City Council adopt Resolution No. 9oP/
I ITEM EXPLANATION
As the Council will recall, the agenda bill declaring the Counc
intention to hold a public hearing on the abatement of a nuisar along that stretch of Buena Vista Creek owned by Hughes North ( Associates was continued in order to allow sufficient time to i to work out an agreement among all the interested parties in tl
matter, namely, the cities of Carlsbad and Oceanside, the Statt California and Hughes North County Associates. The proposed agreement has been executed by Hughes North County Associates i Hughes North County Associates I1 and is attached for your rev: This office recommends it for your execution. It must also be executed by the City of Oceanside and the State of California, Department of Transportation.
According to the terms of the agreement, for a solution to the immediate problem, Hughes agrees to expeditiously engage a contractor, subject to obtaining necessary permits, to dredge , remove vegetation and sediment from the Buena Vista Creek prov:
the parties to the agreement seek a long term solution in orde:
prevent future flooding. The parties to the agreement reserve
respective rights pending the long range solution.
FISCAL IMPACT
There will be no cost to the City for the physical maintenance dredging of Buena Vista Creek Channel. There will be staff ti
associated with participation in a study designed to address 1
term solutions to the flooding problem of an unknown amount at al time .
'ff a EXHIBITS 2
4: a Resolution No. yo?/ Agreement
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RESOLUTION NO. 9081
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA APPROVING AN AGREEMENT OF COOPERATION IN CONNECTION WITH BUENA VISTA CREEK.
The City Council of the City of Carlsbad, Californ
does hereby resolve as follows:
1. That certain agreement between the cities of
Carlsbad and Oceanside, the State of California, and Hughes
North County Associates, attached hereto marked Exhibit A an
made a part hereof, is hereby approved.
2. That the Mayor of the City of Carlsbad is here
authorized and directed to execute said agreement for and on
behalf of the City of Carlsbad.
PASSED, APPROVED AND ADOPTED at a reyular meeting: I
City Council of the City of Carlsbad, California, held on th,
19th day of May , 1987 by the following vote,
to wit:
AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and 1
NOES : None
ABSENT : None
CLAUDE &JILo A. LEWIS, Mayor
ATTEST :
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AGREEMENT OF COOPERATION
REGARDING RISK OF FLOODING OF BUENA VISTA CREEK
This agreement, made and entered into as of the - 1% day of May , 1987, by and among the CITY OE
CARLSBAD, California (hereinafter referred to as ttCarlsbadll) ;
the CITY OF OCEANSIDE, California (hereinafter referred to as llOceansidelt); the State of California by and through the State Department of Transportation ( IICalTrans) and HUGHES
NORTH COUNTY ASSOCIATES, a California partnership, and HUGHE:
(hereinafter referred to collectively as llHughes*l); NORTH COUNTY ASSOCIATES 11, a California partnershi1
WLTNESSETH
WHEREAS, the Buena Vista Creek ("Buena Vista Creek' or ItCreekla) drains a watershed of approximately 25 square miles, flowing though portions of the County of San Diegc (vlCountyll) , the City of Vista . ( Vista11) and the City of Oceanside ( lvOceansidevf) :
WHEREAS, the Creek flows across the approximatell
34 acres of land owned by Hughes ("Hughes Lands") and thereafter into the Buena Vista Lagoon (the I*Lagoonlt) and thc
Pacific Ocean, as shown on the map attached hereto as Exhibit
A (the "Maptt) ;
WHEREAS, the Hughes Lands are located within th€ cities of Carlsbad and Oceanside, with the portion of the Hughes Lands located in Carlsbad being owned by Hughes Nortt
County Associates and the portion of the Hughes Lands located in Oceanside being owned by Hughes North County Associates
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WHEREAS;in 1985 the Creek overflowed its banks and flooded a portion of State Highway 78 (the "HighwayI1), which Highway is shown on the Map;
WHEREAS, the staff of CalTrans and Oceanside and Carlsbad have expressed concern regarding the future risk of flooding of the Highway;
WHEREAS, it has been claimed that the possible causes of such flooding may include the following, among others:
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a. the construction of the Highway at an .elevation
which is susceptible of flooding;
b. the stabilization of the surface of the Lagoon at
an elevation which inhibits the run-off of in-stream
flows ;
c. the pre-1971 filling to provide for the
construction of improvements in connection with the development of the Hughes Lands and the adjacent May Centers project ( "Plaza Camino Real Center") ;
d. the 1979 relocation of the Creek channel
northwesterly to provide for the expansion of the Plaza
Camino Real Center parking lot;
e. the development of the lands in Oceanside immediately adjacent and northwesterly of the Highway, resulting in increased storm water run-off and sedimentation flows in the Creek:
f. urban development within the watershed generally
whi,ch has increased storm water run-off and sedimentation flows in the Creek; and
g. the growth of vegetation and sedimentation within
the Creek;
WHEREAS, Hughes contends that at no time did Hughes undertake or agree, and there is no burden running with the
Hughes Lands, to maintain the Creek; and that it has no duty
or obligation to maintain the Creek for natural water and
sediment flows, nor for increased water levels due to the causes mentioned above, nor for any other cause or reason:
WHEREAS, Carlsbad and Oceanside contend that Hughes is obligated to maintain the Creek as a result of or in connection with its ownership of the Creek or an undertaking
connected with the various approvals by Carlsbad to provide for filling for purposes of development within the Hughes Lands, which contemplate the development of the lands south
of the Creek, the. construction of a bridge across the Creek
and the development of the lands northwesterly of the Creek:
WHEREAS, Carlsbad contends that Hughes' actions or inactions constitute a public nuisance and has announced its
intentions to institute abatement proceedings pursuant to
Creek owned by Hughes and is willing to suspend the proceedings in response to Hughes' agreement to dredge the channel; and
Carlsbad Municipal Code Chapter 6,16 on that portion of the
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WHEREAS, if work is completed pursuant to 'this agreement, such proceedings will be unnecessary;
WHEREAS, Carlsbad has contended that there exists an emergency situation and imminent threat of flooding to persons and property, both public and private, adjacent to 01
near the Creek; and
WHEREAS, Hughes has requested the approval of a Minor Subdivision Map (Number 711) subdividing the Hughes Lands into three parcels, which Carlsbad has approved subject to
the condition, among others, that Hughes agree to maintain the Creek within the Hughes lands in perpetuity;
WHEREAS, Hughes has refused to accept said maintenance
condition because, among other things, Hughes contends that it has no obligation with respect to such maintenance and that the City does not have the authority to require such on- going maintenance in connection with the approval of the
Minor Subdivision Map or otherwise;
WHEREAS, the parties desire to engage in discussions in
an attempt to avoid the costs of expensive, extensive and lengthy litigation and generally to cooperate in good faith
risk of flooding to the Highway taking into consideration the causes mentioned above; and
to seek a long-term equitable arrangement for addressing the
WHEREAS, given the present condition of the channel and
as a gesture of good. faith and support for an amicable solution to the conflict and for other reasons, Hughes is willing to engage a contractor on behalf of the parties
hereto to dredge the channel within the Hughes Lands, and to pay the costs thereof, all on the terms and subject to the conditions set forth herein below;
NOW, THEREFORE, for and in consideration of the foregoing recitals of fact, the mutual covenants and
conditions set forth hereinbelow, and other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. DREDGING OF CREEK.
Hughes shall proceed as expeditiously as possible,
subject to the necessity of-obtaining governmental approvals, including approval from the California Department of Fish and
Game, to engage a contractor on behalf of the parties hereto to dredge and remove vegetation and sediment from the Creek as described in the specifications attached hereto as Exhibit
B (the ltWork") . The contractor and the form of agreement to
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be entered into with the contractor shall be subject to the prior written approval of the parties hereto, which approval
shall not be unreasonably withheld. Hughes shall pay all
costs and expenses in connection with the Work.
2. COOPERATION TO PROVIDE FOR LONG-TERM SOLUTION.
The parties recognize the need for a long-term solution to prevent future flooding of the Creek and agree to participate in a study which will address this problem in an effort to develop methods for a mutually agreeable allocation of costs for future maintenance.
3. ACKNOWLEDGMENT OF NO PREJUDICE AND PRESERVATION OF ALL RIGHTS.
Nothing contained herein or done by Hughes or any other party to this agreement, including engaging a
contractor to perform the Work or bearing or paying the costs in connection therewith or in otherwise assisting or
undertaking.any activities-in connection with the work, is or
shall be construed as or be an undertaking, agreement or acknowledgment or admission of any duty or obligation to maintain or do any work, maintenance or dredging of any kind or nature in connection with the Creek, and none of the parties hereto shall claim, assert or allege anything to the contrary in any administrative or judicial proceeding or
otherwise.
Each of the parties hereto acknowledges that nothing contained herein or done pursuant to this agreement, shall constitute or be a waiver or release of any rights,
remedies, claims or defenses which any of the parties hereto may have in connection with these matters. All such rights are expressly reserved.
Carlsbad's acknowledgment of the expenditure of
a long-term solution is without prejudice to Carlsbad's
position that channel maintenance is the responsibility of the property owners adjacent to the channel.
money by Hughes for channel maintenance and agreement to seek
Notwithstanding anything in this section to the contrary, in the event of litigation Hughes agrees to waive any right to recover any part of the money spent pursuant to
this agreement from any of the parties to this agreement.
I 4. ADJACENT UPLAND DEVELOPMENT.
Oceanside, Carlsbad and Hughes shall cooperate to address outstanding issues regarding the development of the
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portions of the -Hughes lands adjacent to the channel, together with a proposed bridge crossing the channel, all in accordance with applicable laws and regulations.
This agreement is contingent upon and subject to
the issuance of governmental approvals and permits by local, state and federal governmental agencies for the Work described in Exhibit B attached hereto.
This agreement may be executed in any number of counterparts, and each executed counterpart shall have the
same force and effect as an original instrument and as if all of the parties to the aggregate counterparts had signed the same instrument.
The terms, provisions and conditions hereof shall be binding upon and inure to the benefit of the parties and their successors. and assigns and shall not be construed as
benefitting any other persons.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of the date first set forth above.
CITY OF CARLSBAD A Municipal Corporation of the
Date May 21, 1987
CITY OF OCEANSIDE
A Municipal Corporation of the State of California
BY Title
Date
STATE OF CALIFORNIA
BY the State Department of Transportation
BY Title Date .
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HUGHES NORTH COUNTY ASSOCIATES a California General Partnership,
By HI-NC, a California General
Partnership, a General Partner,
By HUGHES INVESTMENTS, a
California General Partnership, a General Partner
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_I. ., ' BY "
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William W. Hughes, Jr.
a General Partner
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HUGHES NORTH COUNTY ASSOCIATES 11, a California General Partnership,
By HUGHES INVESTMENTS, a California General Partnership, a General Partner,
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BY ,:/2;;. .2 -.- . ' -2./2.:- ,_ ,,+/
William W. Hughes, Jr. a General Partner Date 3. . '. , b ,;'
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APPROVED AS TO FORM:
ATTEST:
9- P ALETHA L. RAUTENKRANZ
City Clerk, Carlsbad
APPROVED, AS TO FORM:
CHARLES REVLETT
City Attorney, Oceanside
ATTEST:
BARBARA BISHOP
City Clerk, Oceanside
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EXHIBIT A
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April 21, 1987
EXHIBIT B
BUENA VISTA CREEK CHANNEL MAINTENANCE
Scope of Work:
1. Hughes shall proceed on a one-time basis to engage
qualified contractor to dredge that portion of the Buen Vista Creek Channel identified as Portion "A" on Item
attached hereto, which extends from the Jefferson Stree bridge on the western property line of the Hughes propert: for a distance of approximately 1450' east to the Hughe; eastern property line. The dredging shall be done so as tl re-establish a relatively constant grade from the presen. elevation of the channel bed at Hughes' eastern property linl to the easternmost edge of the upper surface of the concretc apron forming the bed of the Creek at the Jefferson Stree. Bridge. The dredging operation will consist of removinc cattails, bulrushes, silt and all foreign material depositec
in the Buena Vista Creek Channel. Notwithstanding thc foregoing, the total dredging operation shall consist 0: removing such material fram only the northernmost 70% of thc channel width while preserving plants on the remaininc southerly 30% of the channel's width.
2. Subject to the approval of Plaza Camino Real, Hughes ma]
also proceed on a one-time basis to engage a qualifiec
contractor to dredge that contiguous triangular portion 0:
the Buena Vista Creek Channel identified as Portion "Blr 01 Item I attached hereto, if, in the judgment of Hughes, sucl
dredging is necessary or desirable for the convenience of thc
contractor in completing the Work described above il
Paragraph 1 of this Exhibit B. Said optional dredging, i: any, shall be done in the same manner and in accordance wit1 the standards set forth with respect to Portion llAf' il Paragraph 1 of this Exhibit B.
3. The contractor shall be responsible for applying for al:
permits to complete the Work. This work shall also includt the timely disposal of all spoils removed from the Channel bl
the contractor, allowing sufficient time for adequate dryinc of material prior' to disposal, with prior approval of the
City of Carlsbad as to the disposal location, truck routes tc: be used and any traffic control needed to complete the work,
A final inspection of the work described above in Paragraphs
1 and 2, if any, shall be made and all work shall be promptll inspected and approved by the Director of the City oi
Carlsbad, Utilities f Maintenance Department.
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