HomeMy WebLinkAbout2009-02-17; City Council; 19726; Petmit approval San Elijo Hills for RSF RdCITY OF CARLSBAD - AGENDA BILL
AB# 19,726
MTG. 02/17/09
DEPT. PW-ENG
APPROVE ENTRY PERMIT AGREEMENT WITH
SAN ELIJO HILLS COMMUNITY ASSOCIATION FOR THE
RANCHO SANTA FE ROAD MITIGATION PROJECT,
CITY PROJECT NUMBER 3907
DEPT. HEADf £-f J"
CITYATTY. /^
CITY MGR. l/A^-
RECOMMENDED ACTION:
Adopt Resolution No. 2009-036 approving an agreement with the San Elijo Hills Community
Association for a temporary entry permit necessary to construct the Rancho Santa Fe Road Mitigation
Project, City Project No. 3907.
ITEM EXPLANATION:
On May 20, 2008, the City Council adopted Resolution No. 2008 - 142 accepting bids and awarding a
contract for the construction of the Rancho Santa Fe Road Mitigation Project, City Project No. 3907.
This project is the wetlands environmental mitigation component required by the California
Department of Fish and Game 1601 permit issued to the City for the Rancho Santa Fe Road bridge
and road widening project.
Over the last several months, staff has completed negotiations and the City Council has approved the
following agreements necessary to gain temporary access to the work site:
Date Resolution No.Agreement
11/18/08 2008-303
11/18/08 2008-304
01/06/09 2009-005
Approval for temporary grading and access with SDGE
Approval for temporary access with Center for Natural
Lands Management and Brookfield University Commons
Amend agreement with City of San Marcos regarding
grading, inspection, permits, and maintenance
The attached agreement between the City and the San Elijo Hills Community Association is the fourth
and final agreement necessary to secure temporary access to the work site for the City's contractor to
begin construction of the project. This agreement grants to the City a temporary access permit from
the Association for the City's contractor to enter private property and perform the required wetlands
mitigation work including minor site clearing and grading, removal of non-native and invasive
vegetation, installation of irrigation, and extensive planting of agency approved wetlands vegetation.
Because a section of public walking trail will be used by the City's contractor for access to the work
area, the trail will be maintained and improved by the contractor both during and following its use.
The 5-year maintenance and monitoring period under the City's permit issued by the California
Department of Fish and Game will commence with the City Council's formal acceptance of the
completed project and subsequent recordation of the Notice of Completion. Staff recommends
approval of the attached agreement.
DEPARTMENT CONTACT: John Cahill, 760-602-2726; email: jcahi@ci.carlsbad.ca.us
FOR CITY CLERKS USE ONLY
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
§n
n
n
CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER -SEE MINUTES
Dnnn
Page 2
ENVIRONMENTAL IMPACT:
On June 2, 1992, the City Council adopted Resolution No. 92-152 certifying EIR No. 91-1 for Phases
1 and 2 of the Rancho Santa Fe Road Project. On April 25, 2000, the City Council adopted
Resolution No. 2000-128 approving Amendment No. 2 to the EIR which addressed the realignment
and widening of Rancho Santa Fe Road from La Costa Avenue to Melrose Drive. The Rancho Santa
Fe Road Mitigation Project is the product of this development and required by the California
Department of Fish and Game's 1601 permit issued to the City for the road widening project.
FISCAL IMPACT:
There is no cost to the City of Carlsbad associated with the agreement for temporary access to the
work site with the San Elijo Hills Community Association. However, there is a minimal cost to grade
the trail to provide access by the City's contractor.
EXHIBITS:
1. Location map.
2. Resolution No. 2009-036 approving an agreement with the San Elijo Hills Community
Association for a temporary access permit necessary for the City's construction of the Rancho
Santa Fe Road Mitigation Project.
3. Agreement "Entry Permit".
LOCATION MAP
PROPOSED GRADING
AREA
an of OCUNSM:
W6HWAT
VICINITY
MAP
PROPOSED GRADING
AREA
NOT JO SC/Uf
OCLW
PROJECT NAME RANCHO SANTA FE ROAD
MITIGATION PROJECT
PROJECT
NUMBER
3907
EXHIBIT
1
QfMIW BY: SCOTT [VMS, CARLSBAD DKIN£EHNG KPT. 8/25/08 C:\UPtJAL\UHlL\3X7.DWO
EXn ifil"
1
RESOLUTION NO. 2009-036
2
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
3 CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT
WITH THE SAN ELIJO HILLS COMMUNITY ASSOCIATION FOR
4 TEMPORARY ACCESS FOR THE RANCHO SANTA FE ROAD
MITIGATION PROJECT. CITY PROJECT NO. 3907
5
6 WHEREAS, the City Council of the City of Carlsbad, California, hereafter the "City,"
7 awarded a contract for the construction of the Rancho Santa Fe Road Mitigation Project, City
8 Project No. 3907, hereafter the "Project;" and
9 WHEREAS, temporary access to the work site is necessary on property owned by the
10 San Elijo Hills Community Association, hereafter the "Association;" and
WHEREAS, an agreement has been prepared in which the Association shall grant to the
City temporary use and access over and across said property owned by the Association for the
purposes of City's construction of the Project.
14 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
1R 1. That the above recitations are true and correct.
17 2. That an agreement entitled "Entry Permit" between the City of Carlsbad and the
18 San Elijo Hills Community Association is hereby approved and the Mayor is
19
authorized to execute said agreement. Following the Mayor's execution of said
20
agreement, the City Clerk is directed to forward copies of this resolution and said
21
agreement to: Mr. Curt Noland, c/o HomeFed Corporation, 1903 Wright Place,
22
Suite 220, Carlsbad, California 92008-6528; the City's Public Works Department,
23
Construction Management and Inspection Division; and the City's Public Works
24
Department, Engineering Department.
25
26
27
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 17th day of February, 2009, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn.
NOES: None.
ABSENT: None.
MIDE A LEWIS, Mayor
ATTEST:
/*f
TO'RRAHME M. WOOD, City CleVk
(SEAL)
ENTRY PERMIT
THIS ENTRY PERMIT ("Entry Permit") is made this as of rx^irdora H , 2009, by
and between SAN ELIJO HILLS COMMUNITY ASSOCIATION, a Califtrnia Non-profit
Corporation ("Owner"), and CITY OF CARLSBAD, a Municipal Corporation("City").
RECITAL
A. Owner owns certain real property situated in the City of San Marcos, County of
San Diego, State of California, more particularly described on Exhibit "A" attached hereto and
incorporated herein ("Property").
B. City desires to enter onto the Property for the purpose of construction access.
NOW, THEREFORE, in consideration of the premises, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties do hereby covenant, declare and agree as set forth below.
1. Permit to Enter Upon Property. Subject to the terms and conditions hereof,
Owner hereby grants City and its agents, employees, contractors and subcontractors
(collectively, "Agents") the nonexclusive permission to enter upon the Property for construction
access purposes ("Permitted Activities"). Neither City nor its Agents shall allow any other
person to enter the Property and may only enter the Property for purposes of conducting the
Permitted Activities. Owner retains the right to use the Property as it deems appropriate. City
agrees to cooperate with such uses. City's use of the Property pursuant to such permission shall
be strictly governed by the terms of this Entry Permit.
2. City Obligations. City agrees to improve the Property by constructing a minimum
ten foot wide and four inch thick decomposed granite (DG) trail surface on the construction
access road mutually agreed upon by Owner and City as outlined in Exhibit "B." Said DG trail
surface shall be the first item of construction in connection with the City's use of Owner's
property. Maintenance of said DG trail surface during the term of this permit will be by City. In
addition, the City agrees to the following: (1) Hours of operation are 7:30 a.m. to 5:00 p.m.
Monday through Friday, not including statutory holidays. (2) City will limit and control vehicles
accessing the property to minimize the number of vehicle trips over the construction access area
by 'car pooling' construction workers. (3) City will store construction equipment at the
construction site area at the end of each day. (4) City will control dust and noise related to its
use of the construction access area at all times during construction hours. (5) City and it's
contractor shall be allowed to park one (1) vehicle each on Copper Court during the normal work
hours stated above for the duration of this permit. Said vehicles shall be limited to sedans or
pickup trucks.
3. Commencement of Obligations. The term of this Entry Permit and all of City's
rights and obligations hereunder shall commence as of the execution and delivery of this Entry
San Elijo Hills/City of Carlsbad
Entry Permit
Permit to Owner and Owner's execution hereof. Prior to the commencement of any Permitted
Activities on the Property, City shall give prior written notice thereof to Owner.
4. Government Regulations and Other Obligations of City. City shall obtain, at its
sole cost and expense, all governmental permits and authorizations of whatever nature required
for City's Permitted Activities. While on the Property, City will comply, and will cause all of
City's Agents to comply, with all applicable governmental laws, ordinances, rules and
regulations. All persons who enter upon the Property pursuant to this Entry Permit do so at their
own risk. The vicinity of entry is surrounded by native vegetation. City shall cause such persons
to observe strict fire and smoking precautions. City shall further ensure that no fires are lighted
on the Property and that no firearms or intoxicating liquor shall be carried onto the Property by
any persons entering said Property pursuant hereto. All persons entering the Property pursuant
hereto shall comply with any and all instructions and directions of the authorized agents of
Owner.
5. Access to Property. City shall (a) perform all work permitted under this
Agreement in a safe and professional manner; (b) not allow any dangerous or hazardous
condition created by City or City's Agents to continue; (c) comply with all applicable laws and
governmental regulations and any instruction deemed reasonably necessary by Owner; and
(d) not interfere with Owner's activities and cooperate and coordinate its activities with Owner's
activities. City shall not store or bring any hazardous, toxic or contaminated materials or
substances on the Property, including, without limitation, any Hazardous Materials. City will be
responsible for any damage done to the Property during the term of this Entry Permit. If City
fails to repair any damage that City or City's Agents has caused to the Property to the
satisfaction of Owner and such failure continues for seventy-two (72) hours after written notice
thereof from Owner, then Owner may perform such repair on behalf of City without any liability
to City for any loss or damage by reason therefor, and upon completion, City shall pay Owner's
costs for making such repairs.
6. Owner Not Liable. Owner shall not be liable for any loss, damage or injury of
any kind or character to any person, property or the Property arising from any use of the Property
or any act or omission by City under this Entry Permit, or any of City's Agents or licensees or
invitees, or by or from any accident on the Property or any fire or other casualty thereon, or
occasioned by the failure of City to maintain the Property in a safe condition, unless caused
solely by the negligence or willful misconduct of Owner. City shall indemnify, protect, defend
(with legal counsel reasonably acceptable to Owner) and hold Owner and Owner's Indemnitees
harmless from any and all claims, actions, costs, expenses, damages and liabilities relating to the
activities of City, its representatives, agents, and independent contractors, or anyone acting
pursuant to authorization from City in relation to the Property, including, but not limited to,
damage caused by City's use of Hazardous Materials on the Property, any mechanic's liens or
claims of lien resulting therefor, any loss, damage or injury of other persons, and from all costs
and expenses, including but not limited to attorneys' fees, arising therefrom or incurred by
Owner in connection with the enforcement of this indemnification provision, except that City
shall have no obligation to indemnify Owner for any loss, liability or damage found by a final
judgment of a court of competent jurisdiction to have been caused solely by the negligence or
willful misconduct of Owner. City's covenants in this Section shall survive the termination of
this Agreement and shall be binding on City until such time as an action against Owner is
San Elijo Hills/City of Carlsbad
Entry Permit
Rev 2009-01-23 DLH 2
7
absolutely barred by the applicable statute of limitations. City's obligations to defend and
indemnify Owner and Owner's Indemnitees will be triggered by the mere assertion of a claim
against Owner and/or Owner's Indemnitees, without regard to the merit of such claim and
whether or not the claim arose from the negligence or other fault of City.
7. Insurance.
7.1 Form of Policies Required. City shall cause each of its contractors to
maintain, with companies acceptable to Owner, commercial general liability insurance on an
occurrence form (not claims made or modified occurrence form) with limits of not less than One
Million Dollars ($1,000,000) combined single limit bodily injury, death and property damage per
occurrence and business automobile coverage with limits of at least One Million Dollars
($1,000,000) per occurrence. City shall provide that such policies of insurance shall name
Owner, San Elijo Hills Development Company, LLC and San Elijo Ranch, Inc. as additional
insureds and shall state that such policies are primary, excess and non-contributing with any
other insurance carried by Owner. Such policies shall contain a provision that the naming of an
additional insured shall not negate any right the additional insured would have had as claimant
under the policy if not so named, and severability of interest and cross liability clauses.
7.2 General Insurance Provisions.
7.2.1 Any policies or certificates of insurance required under the
provisions of this Section 8 must contain an endorsement or provision that not less than thirty
(30) days' prior written notice be given to Owner prior to cancellation or reduction of coverage
or amount of such policy.
7.2.2 A certificate issued by the insurance carrier of each policy of
insurance required to be maintained by City's contractor(s) together with a certified copy of all
required endorsements shall be delivered to Owner by City prior to City being given the right to
enter upon the Property for any purpose. Each such certificate of insurance shall contain
provisions stating the limits, coverage and other provisions required in this Section. A renewal
certificate for each of the policies required in this Section shall be delivered to Owner not less
than thirty (30) days prior to the expiration date of the term of such policy.
7.2.3 Any policies required by provisions of this Section may be made
a part of a blanket policy of insurance so long as such blanket policy contains all of the
provisions required herein and does not reduce the coverage, impair the rights of the other party
to this Entry Permit or negate the requirements of this Entry Permit and includes a "per project,
per location" endorsement.
8. Termination.
8.1 Should Owner become aware of any condition(s) that are dangerous,
unsafe or contrary to the terms of this entry permit, Owner shall contact, by telephone, the
appointed City representative to notify same of the condition(s). Owner and City shall agree on a
solution to resolve the condition(s) and City shall take immediate action to correct the
condition(s). Should the condition(s) not be resolved to owners' satisfaction within three (3) days
time Owner shall notify City in writing of the condition(s). Should the condition(s) not be
San Elijo Hills/City of Carlsbad
Entry Permit
Rev 2009-01-23 DLH 3
resolved within five (5) days of written notice by Owner the right of entry granted by this permit
may be revoked by Owner. All improvements such as, but not limited to, the DG trail surface
shall be repaired at City's expense, if necessary, to the satisfaction of the Owner and all trash,
dirt, and debris will be removed within 5 days of written termination notice by Owner. In
addition, if City breaches any of its material obligations under this Entry Permit, Owner shall
have the right by written notice to City to suspend City's rights under this Entry Permit and to
require City to vacate the Property until City cures such breach. If the right of entry granted City
hereunder is terminated or suspended for any reason, City shall promptly vacate the Property.
8.2 City acknowledges and agrees that this Entry Permit constitutes a license.
City further acknowledges and understands that City has no rights of occupancy or possession of
the Property by virtue of this Entry Permit.
9. General Provisions.
9.1 No Responsibility for Loss or Theft. Owner shall not be responsible for
the loss or theft of anything stored by City or its agents on or about the Property, unless such loss
or theft is caused solely by the negligence or willful misconduct of Owner.
9.2 Inspection. Owner and any agent authorized by Owner shall be entitled to
enter and inspect the Property at any time while this Entry Permit is in effect.
9.3 No Assignment. This Entry Permit cannot be assigned, voluntarily or by
operation of law, and City shall not sublet or permit the use of the Property, or any part thereof,
and any attempt to do so shall be null and void.
9.4 Entire Agreement. This Entry Permit constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and all prior and
contemporaneous agreements, representations and understandings of the parties hereto, oral or
written, are hereby superseded and merged herein. No supplement, modification or amendment
of this Entry Permit shall be binding unless in writing and executed by the parties hereto.
9.5 Governing Law. This Entry Permit shall be construed in accordance with,
and governed by, the laws of the State of California. This Entry Permit shall be deemed made
and entered into in San Diego County.
9.6 Captions. The captions of this Entry Permit are for purposes of reference
only and shall not limit or define the meaning of the provisions of this Entry Permit.
9.7 Counterparts. This Entry Permit may be executed in any number of
counterparts, each of which shall be an original and all of which shall constitute one and the
same instrument.
9.8 Successors and Assigns. Each and all of the covenants and conditions of
this Entry Permit shall inure to the benefit of and shall be binding upon the successors in interest
of Owner, and, subject to the restrictions on transfers herein provided, the successors, heirs,
representatives and assigns of City. As used in the forgoing, "successors" shall refer both to the
San Elijo Hills/City of Carlsbad
Entry Permit
Rev 2009-01-23 DLH 4
parties' interest in the Property and to the successors to all or substantially all of their assets and
to their successors by merger or consolidation.
9.9 Cumulative Remedies. All rights, options and remedies of Owner
contained in this Entry Permit shall be construed and held to be cumulative, and no one of them
shall be exclusive of the other, and Owner shall have the right to pursue any one or all of such
remedies or to seek damages or specific performance in the event of any breach of the terms
hereof by City or to pursue any other remedy or relief which may be provided by law or equity,
whether or not stated in this Entry Permit.
9.10 No Waiver. No waiver by Owner of a breach of any of the terms,
covenants or conditions of this Entry Permit by City shall be construed or held to be a waiver of
any succeeding or preceding breach of the same or any other term, covenant or condition herein
contained. No waiver of any default by City hereunder shall be implied from any omission by
Owner to take any action on account of such default if such default persists or is repeated, and no
express waiver shall affect a default other than as specified in such waiver. The consent or
approval by Owner to or of any act by City requiring Owner's consent or approval shall not be
deemed to waive or render unnecessary Owner's consent or approval to or of any subsequent
similar acts by City.
9.11 Attorneys' Fees. If any action, arbitration, judicial reference or other
proceeding is instituted between Owner and City in connection with this Entry Permit, the losing
party shall pay to the prevailing party a reasonable sum for attorneys' and experts' fees and costs
incurred in bringing or defending such action or proceeding and/or enforcing any judgment
granted therein, all of which shall be deemed to have accrued upon the commencement of such
action or proceeding and shall be paid whether or not such action or proceeding is prosecuted to
final judgment. Any judgment or order entered in such action or proceeding shall contain a
specific provision providing for the recovery of attorneys' fees and costs, separate from the
judgment, incurred in enforcing such judgment. The prevailing party shall be determined by the
trier of fact based upon an assessment of which party's major arguments or positions taken in the
proceedings could fairly be said to have prevailed over the other party's major arguments or
positions on major disputed issues. For the purposes of this section, attorneys' fees shall include,
without limitation, fees incurred in the following: (1) post-judgment motions; (2) contempt
proceedings; (3) garnishment, levy, and debtor and third party examinations; (4) discovery;
(5) any appeals; and (6) bankruptcy proceedings. This Section is intended to be expressly
severable from the other provisions of this Agreement, is intended to survive any judgment and
is not to be deemed merged into the judgment.
9.12 Severability. If any phrase, clause, sentence, paragraph, section, article or
other portion of this Agreement shall become or is held to be illegal, null or void or against
public policy, the remaining portions of this Entry Permit shall not be affected thereby and shall
remain in force and effect to the fullest extent permissible by law.
9.13 No Partnership. Owner and City shall not, by virtue of this Entry Permit,
in any way or for any purpose, be deemed to have become a partner of each other in the conduct
of their respective business or otherwise or joint venturer. In addition, by virtue of this Entry
San Elijo Hills/City of Carlsbad
Entry Permit
Rev 2009-01 -23 DLH
Permit, there shall not be deemed to have occurred a merger of any joint enterprise between
Owner and City.
9.14 Authority. Each individual executing this Agreement on behalf of City
represents and warrants that he is duly authorized to execute and deliver, and has the power to
execute and deliver, this Agreement on behalf of the parties.
9.15 Survival. Each of the covenants and obligations shall survive termination
of this Entry Permit.
IN WITNESS WHEREOF, the parties have executed this Entry Permit as of the date first
above-written.
OWNER:
SAN EL;
ASSOC
Corpo.
HILLS COMM
, a
vj
Name: Curt R. Noland
Title: President
CITY OF CARLSBAD, a municipal
corporatio/ff*ne State o£ California
Mayor
Date:
ATTEST:
LORRAINE M. WOOD
City Clerk
APPROVED AS TO FORM:
Ronald R. Ball, City Attorney
By: V~->,
Depfity City Attorney
Date:
XI
• x\»« ""/>,/]s<<^°K/^'Ti&£C li •" l.,3«K- • ^n —
s>(S^
San Elijo Hills/City of Carlsbad
Entry Permit
Rev 2009-01-23 DLH
EXHIBIT "A"
Legal Description of Property
LOT 9 OF CITY OF SAN MARCOS TRACT NO. 400, PHASE 1 - UNIT
NO. 1, IN THE CITY OF SAN MARCOS, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13879, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY
ON November 30, 1999.
AND
LOT "A" OF CITY OF SAN MARCOS TRACT NO. 400, PHASE 1 - UNIT
NO. 10, IN THE CITY OF SAN MARCOS, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13938,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON February 17, 2000.
EXHIBIT "A"
San Elijo Hills/City of Carlsbad
Entry Permit
Legend
III Access Area To Be Improved
[^•! Trail Area To Be Improved
] Improvement Area
Lot A
Map
13938
: sjohn
Ill") IIExhibit' B
J:\GIS\Engineering\GIS_Projects\John_Cahill