HomeMy WebLinkAbout2009-10-20; City Council; 20015; La Golondrina and El Fuerte St sewer extensionsCITY OF CARLSBAD - AGENDA BILL
AB* 20,0,5
MTG- 10-20-09
DEPT. ENG
APPROVAL OF PLANS AND SPECIFICATIONS AND
AUTHORIZATION TO ADVERTISE TO RECEIVE BIDS;
APPROVAL OF WASTEWATER BOUNDARY ADJUSTMENT
AGREEMENT WITH LWD AND APPROVAL OF LICENSE
AGREEMENT WITH PONDEROSA HOA FOR LA
GOLONDRINA AND EL FUERTE STREET SEWER
EXTENSIONS, PROJECT NOS. 3951 AND 5500
DEPT. HEAD fD~Y^
CITYATTY. O,
CITY MGR. \^A— -
RECOMMENDED ACTION:
Adopt Resolution No. 2009-267 approving plans and specifications and authorizing the
City Clerk to advertise to receive bids; approving Wastewater Boundary Adjustment Agreement with
Leucadia Wastewater District and approving License Agreement with Ponderosa Home Owners
Association (HOA) for the La Golondrina and El Fuerte Street Sewer Extensions, Project Nos. 3951
and 5500.
ITEM EXPLANATION:
La Golondrina Sewer Extension: The La Golondrina Lift Station (LGLS) is owned and operated by
the City of Carlsbad and was constructed to provide service to Carlsbad Tract 73-29 in 1984. By an
agreement dated August 18, 1981 with Leucadia Wastewater District (LWD), the wastewater tributary
to the LGLS is allowed to be pumped into the LWD sewer collection system with the understanding
that when the City's sewer system is extended to the area the City will discontinue the diversion into
LWD sewer collection area. Subsequent development has now made it possible to convey
wastewater from this area into the City of Carlsbad's sewer system by way of gravity flow with the
construction of a gravity sewer pipeline. The sewer pipeline extension includes the construction of
approximately 1,000 lineal feet of 10-inch HOPE pipeline to connect to the sewer pipeline in
Vermarine Court. The pipeline extension will be constructed under the open space parcel by means
of Horizontal Direction Drilling (HDD) to avoid impacts to the environmentally sensitive habitat. The
LGLS will be removed when the gravity sewer pipeline is constructed. Easements for the new
alignment have been acquired from all private properties on the new alignment, and a license
agreement for access on property owned by HOA has been executed by the HOA and is presented
to City Council for approval.
El Fuerte Street Sewer Extension: The City entered into an agreement dated June 15, 2000, with
LWD, to temporarily divert 25 dwelling units of wastewater flow from Carlsbad Tract No. 93-04
located in the City's service area, into the La Costa Meadow 3 Lift Station (LCM3), which is owned
and operated by LWD. The agreement calls for the removal of the diversion within 10 years; that date
occurs on June 15, 2010. The El Fuerte Street Sewer Extension includes the construction of
approximately 1,300 lineal feet of 8-inch diameter sewer pipeline in El Fuerte Street by way of open
trench construction and 540 lineal feet of 10-inch diameter pipeline, under environmentally sensitive
habitat, by way of HDD. This gravity flow pipeline will divert flow into the City sewer service area,
complying with said agreement.
DEPARTMENT CONTACT: Mark Biskup, (760) 602-2763, mark.biskup@.carlsbadca.gov
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION:APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
D
D
D
CONTINUED TO DATE SPECIFIC D
CONTINUED TO DATE UNKNOWN D
RETURNED TO STAFF D
OTHER - SEE MINUTES D
Page 2
Sewer Boundary Adjustment: In addition to the flow from the City's sewer collection service area,
LCM3 pumps wastewater for 70 dwelling units located within the LWD collection area. City and LWD
staff concur that the diversion of wastewater into a gravity pipeline system and abandonment of the
LCM3 Lift Station is economically and environmentally beneficial. The construction of approximately
14 lineal feet of pipeline in addition to the described El Fuerte Street Sewer Extension would allow the
diversion of those 70 dwelling units into the City's sewer service area. City and LWD staff have
prepared a boundary adjustment agreement for approval by City Council for transfer of sewer service
for the 70 dwelling units from LWD to City. Staff will additionally request approval by the Local Agency
Formation Commission (LAFCO) for detachment from LWD. Prior to the City's acceptance of the LWD
collection system, the facilities shall be inspected and, improved if necessary by LWD to meet the
City's sewer system requirements. After connection of the sewer system and detachment from LWD,
the City will bill the 70 new sewer customers in accordance with City procedures for the provision of
sewer services.
ENVIRONMENTAL IMPACT:
A Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP)
were prepared for the La Golondrina and El Fuerte Street Sewer Extension Project (EIA 08-01). The
Notice of Intent (NOI) to adopt a MND was published in the newspaper February 26, 2009, and sent
to the State Clearinghouse for a 30-day public review (February 26, 2009- March 26 2009). No further
environmental review is required. No city permits were required for this project; therefore, the MND
was approved administratively by the Planning Director on April 13, 2009 in compliance with the
California Environmental Quality Act (CEQA) Guidelines Section 15074.
FISCAL IMPACT:
PROJECT COST SUMMARY FOR THE DESIGN, ENVIRONMENTAL AND
CONSTRUCTION PHASES OF THE LA GOLONDRINA AND EL FUERTE STREET SEWER
EXTENSIONS (PROJECT NOS. 3951 & 5500)
DESIGN & ENVIRONMENTAL PHASE
Engineering Design & Environmental
Easement Acquisitions
DESIGN & ENVIRONMENTAL SUBTOTAL
CONSTRUCTION PHASE
Engineer's Construction Cost Estimate
Construction Management and Inspection (Estimated 8%)
Biological Monitoring
CONSTRUCTION SUBTOTAL*
TOTAL PROJECT COST
CURRENT APPROPRIATION
$231,626
$13,850
$245,476
$1,259,825
$100,800
$8,000
$1,368,625
1,614,101
$ 2,255,420
*LWD's share of Total Project Cost is $63,825.
Sufficient funds are available for the completion of the pipeline construction. The project is funded
from the Sewer Replacement Fund. As required in the Sewer Boundary Agreement, LWD will
reimburse the City for demolition of LCM3 Lift Station and intertie pipeline construction. The estimate
for this reimbursement is $63,825. After the detachment from LWD, the City will bill the 70 new sewer
customers in accordance to the City's procedure for the provisions of sewer services. The new
customers will pay Carlsbad sewer service fees. The City currently collects sewer service fees for
Carlsbad Tract (CT) 93-04 and CT 73-29. The City pays LWD 100% of the fees collected from CT 93-
04 and 75% of the fees collected from CT 73-29 in accordance to their specified diversion agreement.
With the construction of the sewer extensions and conveyance of the wastewater into the City's
collection area, the diversion agreements are terminated, payment to LWD ceases, and the City
retains all sewer service fees collected from CT 93-04 and CT 73-29.
PageS
EXHIBITS:
1. Location Map.
2. Resolution No. 2009-267 approving plans and specifications and authorizing the
City Clerk to advertise to receive bids; approving Wastewater Boundary Adjustment
Agreement with Leucadia Wastewater District; and approving License Agreement with
Ponderosa Home Owners Association for the La Golondrina and El Fuerte Street Sewer
Extensions, Project Nos. 3951 and 5500.
3. Agreement for City of Carlsbad to Assume Permanent Wastewater Service to Meadows 3
Service Area of Leucadia Wastewater District
4. Ponderosa Home Owners License Agreement
LOCATION MAP
La Golondrina
Lift Station
CARLSBAD
SEWER COLLECTION
AREA
La Costa Meadows
Lift Station, LCM3
LEUCADIA WASTEWATER DISTRICT
CO o %
-0
OJjly2
VICINITY MAP
IMTS
800
DFeet
LEGEND
• • +~ PIPELINE EXTENSIONS
EXISTING SEWER AGENCY BOUNDARY
I ADDITIONAL 70 UNITS TO BE ADDED TO
CARLSBAD SEWER COLLECTION
AREA
PRO IFPTrrvwuco i - APPROVAL OF PLANS AND SPECIFICATIONS
- AND AUTHORIZATION TO ADVERTISE TO RECEIVE
BIDS; APPROVAL OF WASTEWATER BOUNDARY ADJUSTMENT AGREEMENTWITH LWD AND APPROVAL OF LICENSE AGREEMENT WITH PONDEROSA HOA
FOR LA GOLONDRINA AND EL FUERTE STREET SEWER EXTENSIONS
PROJECT NOS
CP 3951 &
5500
EXHIBIT
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RESOLUTION NO. 2009-267
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
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CARLSBAD, CALIFORNIA, APPROVING PLANS AND
SPECIFICATIONS AND AUTHORIZING THE CITY CLERK TO
ADVERTISE TO RECEIVE BIDS; APPROVING WASTEWATER
BOUNDARY ADJUSTMENT AGREEMENT WITH LEUCADIA
WASTEWATER DISTRICT; AND APPROVING LICENSE
AGREEMENT WITH PONDEROSA HOME OWNERS
ASSOCIATION FOR THE LA GOLONDRINA AND EL FUERTE
STREET SEWER EXTENSIONS, PROJECT NOS. 3951 AND 5500.
WHEREAS, the City of Carlsbad (City) now pumps wastewater from the La Golondrina Lift
Station into the Leucadia Wastewater District (LWD) service area through an agreement, dated
August 18, 1981, between the City and LWD; and
WHEREAS, said agreement requires the City to divert flow into the City's wastewater
service area when wastewater infrastructure is constructed to the area served by the La
Golondrina Lift Station; and
WHEREAS, wastewater pipeline facilities have been constructed in adjacent developments
which allow for the wastewater to flow into the City's sewer service area; and
WHEREAS, the City Council of the City of Carlsbad, California, desires to construct a
gravity flow sewer pipeline conveying flow into the City's sewer service area; and
WHEREAS, the La Golondrina Wastewater Lift Station will be decommissioned and
removed upon completion of the new La Golondrina Sewer Extension; and
WHEREAS, City staff has acquired necessary easements to construct and operate the La
Golondrina Sewer Extension where its alignment crosses private property; and
WHEREAS, through a license agreement with Ponderosa Home Owners Association
(HOA) owned property, the City will acquire access over the HOA property during the construction
phase of this project; and
WHEREAS, through an agreement between the City and LWD dated June 15, 2000, the
City diverts 25 dwelling units of wastewater flow from the City's service area, Carlsbad Tract No.
93-04, into the LWD service area and is required to remove this flow by June 15, 2010; and
1 WHEREAS, construction to the El Fuerte Street Sewer Extension will allow the City to
2 convey wastewater from the 25 dwelling units into the City's service area complying with said
3 agreement; and
4 WHEREAS, the El Fuerte Street Sewer Extension will eliminate the need for the La Costa
5 Meadows Unit No. 3 Lift Station owned and operated by LWD, which now pumps 25 dwelling units
6 of wastewater flow from Carlsbad and 70 dwellings units (Additional Properties) of flow from the
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g WHEREAS, transfer of service from LWD to the City for the Additional Properties will
a require completion of an agreement between LWD and the City and approval by the Local Agency
1Q Formation Commission (LAFCO) of a Detachment from LWD; and
., WHEREAS, Staff from the City and LWD have prepared an agreement which provides for
the transfer of service; and
WHEREAS, City staff will acquire LAFCO approval for a Detachment from LWD; and
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WHEREAS, after Additional Properties are detached from LWD, City will bill those sewer
customers in accordance with standard City procedures for the provisions of sewer services; and15
WHEREAS, the City Council of the City of Carlsbad, California, desires to construct a16
gravity flow wastewater pipeline, the El Fuerte Sewer Extension, and remove the La Costa
Meadows Unit 3 Lift Station; and
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WHEREAS, the plans and specifications for furnishing of all labor, materials, tools,
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equipment, transportation, and other expenses necessary or incidental to the La Golondrina and El
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Fuerte Street Sewer Extensions, Project Nos. 3951 and 5500, have been prepared and are on file
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in the Public Works-Engineering Department of the City of Carlsbad and are incorporated herein
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by reference; and
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WHEREAS, easements for the construction and operation of the El Fuerte Sewer
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Extension have been acquired; and
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WHEREAS, A Mitigated Negative Declaration (MND) and Mitigation Monitoring and
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Reporting Program (MMRP) were prepared for the La Golondrina and El Fuerte Street Sewer
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Extension Project (EIA 08-01), the Notice of Intent (NOI) to adopt an MND was published in the
newspaper (February 26, 2009-March 26, 2009), and no further environmental review is required,
and no city permits were required for this project, therefore the MND was approved
administratively by the Planning Director on April 13, 2009 in compliance with the California
Environmental Quality Act (CEQA) Guidelines Section 15074; and
WHEREAS, funds in the Sewer Replacement Fund are sufficient for the project.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
1. That the above recitations are true and correct.
2. That the plans, specifications, and contract documents for the the La Golondrina
and El Fuerte Street Sewer Extensions, Project Nos. 3951 and 5500, are on file in the Public
Works-Engineering Department of the City of Carlsbad and are hereby approved.
3. The City Clerk of the City of Carlsbad is hereby authorized and directed to publish,
in accordance with state law, a Notice to Contractors Inviting Bids for the construction of the the La
Golondrina and El Fuerte Street Sewer Extensions, Project Nos. 3951 and 5500, in accordance
with the plans, specifications, and contract documents referred to herein.
4. The Mayor is authorized to execute the License Agreement with HOA.
5. The Mayor is authorized to execute the Boundary Adjustment Agreement with
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6. Staff is directed to acquire approval of a Wastewater Detachment and Boundary
Adjustment by the LAFCO.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 20^ day of October. 2009, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn.
NOES: None.
ABSENT: None.
ATTEST:
LORRAINE M.
(SEAL)
RECEIVED
MAR 12 2009
ENGINEERING
DEPARTMENTAGREEMENT FOR CITY OF CARLSBAD TO ASSUME Cl>l'
PERMANENT WASTEWATER SERVICE TO THE
MEADOWS 3 SERVICE AREA OF
LEUCADIA WASTEWATER DISTRICT
This Agreement is entered into between LEUCADIA WASTEWATER DISTRICT and
CITY OF CARLSBAD.
RECITALS
This Agreement is made with respect to the following:
A. LEUCADIA WASTEWATER DISTRICT (DISTRICT) is a county water district
established and existing under Water Code § 30000 et seq. that provides sewer
service to the north area of the City of Encinitas and to the south area of the City
of Carlsbad.
B. The CITY OF CARLSBAD is a municipal corporation (CITY) that has
jurisdiction to provide sewer service within the CITY.
C. There is an existing Reimbursement Agreement for Carlsbad Tract No. 93-04 -
Rancho Carrillo Village Q4 last dated June 15, 2000 that provides for temporary
sewer service by DISTRICT for 25 dwelling units in the CITY sewer service area
(hereafter referred to as the "Carrillo Village Properties"). The prior Agreement
anticipated that CITY would construct other wastewater collection facilities to
directly serve the Carrillo Village Properties in the future. Those facilities are now
being planned and designed with construction anticipated in 2009. Upon
completion and connection of the Carrillo Village Properties to the CITY sewer
system, the prior Reimbursement Agreement will expire.
D. DISTRICT owns and operates the Meadows 3 Wastewater Pump Station, which
currently serves the Carrillo Village Properties and an additional 70 assessor
parcels / dwelling units within the CITY and within the DISTRICT Meadows 3
Service Area per Exhibit 1, (hereafter referred to as the "Additional Properties").
With minor additional facilities added by CITY, the new CITY facilities could
provide wastewater service to the Carrillo Village Properties and Additional
Properties (collectively referred to as "the Properties", thus allowing
abandonment and demolition of the existing DISTRICT Meadows 3 Pump
Station.
E. Transfer of sewer service from DISTRICT to CITY for the Properties will require
completion of this Agreement and approval by the Local Agency Formation
Commission (LAFCO) of a Detachment from the DISTRICT.
Carlsbad/LWD Carrillo/Meadows Agreement Page lofS
AGREEMENT
NOW THEREFORE, it is agreed by and between CITY and DISTRICT as follows:
1. CITY shall be responsible for all gravity sewer service plan checking, design plan
approvals, bonding, construction, construction inspection, and acceptance of all
required wastewater facilities required to provide gravity sewer service for the
Carrillo Village Properties.
2. In addition, CITY shall be responsible for all design and construction work
required to connect the Additional Properties to the CITY sewer system including
demolition of the Meadows 3 Pump Station and related facilities. CITY shall
provide records of said expenses to LWD with a request for reimbursement of
actual expenses.
3. DISTRICT shall reimburse CITY for the actual expense related to the connection
of the Additional Properties to the CITY sewer system and Meadows 3 Pump
Station demolition.
4. The parties may agree to have all or some of the work required by this agreement
done as a joint project. The parties shall prepare bids and itemize costs for such
work in a manner that allows costs to be allocated and paid by the responsible
entity.
5. DISTRICT shall allow CITY, and authorized agents of the CITY, to access
DISTRICT sewer easements for purposes of design and construction of new
CITY gravity sewer facilities in the vicinity of the DISTRICT Meadows 3 Pump
Station. Such access shall include construction of the new CITY sewer to be
completed by horizontal directional drilling and/or open trench methods.
6. Sewer easements within the area of proposed detachment from the DISTRICT in
La Costa Meadows Unit No. 3, Map No. 7076, were dedicated "on the map" per
the language: "SEWER EASEMENT DEDICATED HEREON." All sewer
easements will remain in effect. After detachment from the District of the
Additional Properties, the CITY shall assume the benefit of the sewer easements
as well as ownership and responsibility for the sewers serving the Additional
Properties.
7. The existing sewer easements for the forcemain only from the Meadows No. 3
Pump Station could be quit claimed later by CITY after construction and
detachment from DISTRICT are complete, and if requested in the future by the
owners of La Costa Meadows Unit No. 3 Lots 553, 554, 555, and 556.
8. Upon completion of construction and connection of new off-site sewer facilities,
CITY shall accept, collect, treat, and dispose of the wastewater generated from
the Properties in accordance with its rules and regulations.
Carlsbad/LWD Carrillo/Meadows Agreement Page 2 of 5
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9. DISTRICT and CITY each agree to complete all actions required for processing
through LAFCO of Detachment from DISTRICT for the Additional Properties.
DISTRICT and CITY agree that either party may initiate the Detachment. CITY
and DISTRICT agree to support the DISTRICT detachment regardless of
initiating party.
10. CITY shall accept ownership and thereafter maintain, repair, and replace the
sewer facilities serving the Properties after connection of Properties, and
DISTRICT shall bear no responsibility, liability, or expense with respect to such
maintenance, repair, and/or replacement.
11. DISTRICT shall provide as-built mylars in its possession for sewer facilities
within the Properties to CITY after connection of the Properties to facilitate the
ownership transfer and subsequent maintenance activities of the CITY.
12. Subject to District's obligation to reimburse CITY for certain work as provided in
this Agreement, DISTRICT shall retain past annexation fees, if any, and any other
charges, fees, assessments, or taxes previously received by DISTRICT for the
Properties. DISTRICT shall further continue to receive any real property taxes
attributable to the Additional Properties as long as the Additional Properties are
located within the jurisdiction^ boundaries of DISTRICT. The preceding
sentence shall not be construed to include retention of continuing service charges
or fees for the provision of wastewater collection, treatment, and disposal services
by DISTRICT, whether collected on a real property tax bill or otherwise.
13. CITY shall defend, indemnify and hold harmless DISTRICT and its officers,
board members, employees, agents and consultants from any claim, loss, or other
damages asserted against DISTRICT or its officers, board members, employees,
agents or consultants occurring or alleged to have occurred as a result of the acts
or omissions of CITY or any of its officers, board members, employees, agents, or
consultants relating to the provision of sewer services by CITY under this
Agreement.
14. DISTRICT shall defend, indemnify and hold harmless CITY and its officers,
council members, employees, agents and consultants from any claim, loss, or
other damages asserted against CITY or its officers, council members, employees,
agents or consultants occurring or alleged to have occurred as a result of the acts
or omissions of DISTRICT or any of their officers, board members, employees,
agents, or consultants relating to the provision of sewer services by DISTRICT
under this Agreement.
15. After connection and until such time as the Additional Properties are detached
from DISTRICT jurisdiction by LAFCO, CITY and District agree to transition
payment for sewer service from DISTRICT to CITY for Additional Properties
Carlsbad/LWD Carrttlo/Meadows Agreement Page 3 of 5
with interim payment direct from DISTRICT to CITY until such time as formal
transition is made.
16. After the Additional Properties are detached from DISTRICT, CITY shall bill the
sewer customers within the Additional Properties in accordance with standard
CITY procedures for the provision of sewer services.
17. This Agreement shall remain in effect until such time as the sewer facilities
anticipated by this Agreement are completed, sewer service to all Properties is
being provided by CITY, and the Additional Properties are detached or de-
annexed from LWD and approved by LAFCO for sewer service to be provided by
CITY, or its successor agency, at which time this Agreement shall automatically
terminate.
18. This Agreement shall inure to the benefit of and be binding upon the parties and
their respective successors-in-interest.
Date: March 9. 2009 LEUCADIA-WASTEWATERDISTRICT
By:
District ^$a<nager
Date:CITY
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
By:
//DONALD KEMP, Deputy City Attorney
Carlsbad/LWD Carrillo/Meadows Agreement Page 4 of 5
FOR AGREEMENT BETWEEN
LEUCADIAWASTEWATER DISTRICT
&
CITY OF CARLSBAD
"ADDITIONAL PROPERTIES"
MEADOWS 3 SEWER
SERVICE AREA
September 30, 2008
Carlsbad/LWD Carrillo/Meadows Agreement Page 5 of 5
BE
APR 13'* :M
AGREEMENT 1
This Agreement (this "Agreement") is entered into by and betwee^ PONDEROSAL^OJJNJJRY
HOMEOWNERS ASSOCIATION, a California non-profit mutual benefit corp^afioff:(rhB^SslbTMion)^ on
the one hand, and the CITY OF CARLSBAD, a municipal corporation (the "City"), on the other hand. For
ease of reference the Association and the City may sometimes be collectively referred to herein as the
"Parties."
RECITALS
A. The Association manages and controls the Ponderosa Country development located in the
City of Carlsbad, County of San Diego, State of California, more particularly described as follows:
LOTS 143 THROUGH 255, INCLUSIVE, OF CARLSBAD TRACT 73-29,
IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO A MAP THEREOF NO. 10257, FILED
ON NOVEMBER 9, 1981, IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ("PONDEROSA PROPERTY");
B. The Ponderosa Property in its entirety is subject to that certain Declaration of Covenants,
Conditions and Restrictions, recorded on September 15, 1983, as Document No. 1983-329840, and all
amendments thereto, recorded in the San Diego County Recorder's Office (the "Declaration");
C. Pursuant to the Declaration, the Board of Directors for the Association has the authority to
act on behalf of the Association relative to the portions of real property affected by this Agreement;
D. City currently holds an easement used in connection with sewer systems on the Ponderosa
Property;
E. In an effort to improve its infrastructure, City intends to abandon the sewer lift station near
La Golondrina Street and intends to construct a gravity sewer pipeline to replace it. The new pipeline
alignment is proposed to cross the Ponderosa Property as described on Exhibit "A," and City seeks a
Wastewater Pipeline Easement for that purpose;
F. The City is willing to (among other things set forth in this Agreement) pay the Association
just compensation in the amount of $4,000.00 for the Wastewater Pipeline Easement (the "Easement");
G. The Grant Deed of Wastewater Pipeline Easement sets forth specifically the purpose and
scope of the Easement, as well as the work and construction proposed by the City (the "Subject Work").
FOR VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED,
THE PARTIES AGREE AS FOLLOWS:
1. Obligations of the Association.
1.1. Grant of License. The Association shall grant and does hereby grant City and any of its
subcontractors and other necessary personnel a limited license to enter upon the Ponderosa Property for
purposes of performing the Subject Work. Notwithstanding the foregoing, this Section 1.1 shall in no way
limit or affect the easement rights granted in Section 1.2 below.
1.2. Grant of Wastewater Pipeline Easement to City. The Association shall agree to sign and
fully execute the Grant Deed of Wastewater Pipeline Easement attached herewith as Exhibit "B."
2. Obligations of City.
Page 1 of7
2.1. Payment of $4.000. City shall pay to the Association $4,000.00 within thirty (30) days from
the date this Agreement is fully executed.
2.2. Notice to Membership and Notice to Proceed. City agrees that before any of the Subject
Work commences, that adequate notice will be given to the Association and its members. The Parties shall
meet and confer regarding potential timeframes that are mutually convenient prior to notice going out to the
membership. Adequate notice shall be defined as at least fifteen (15) calendar days in advance.
2.3. Timeliness and Workmanship. City and/or its contractors shall complete all work
contemplated herein in a professional and workmanlike manner consistent with typical construction
standards and applicable building codes, statutes, and ordinances that govern such work. City shall also
complete such work in a timely manner and take all necessary and reasonable steps to complete the proposed
work on time and without unnecessary delay. The Parties expressly agree that time is of the essence with
respect to this Agreement.
2.4. Insurance and Additional Insured Endorsement. Without limiting City's indemnity
obligation under Paragraph 2.6, City, at its sole cost and expense, shall obtain prior to entering the Ponderosa
Property and shall maintain during the period of any entry or work thereon, a policy or policies of
commercial general liability insurance with respect to the Ponderosa Property and the activities of or on
behalf of City and its representatives on or about the Ponderosa Property in the amount of not less than One
Million Dollars ($1,000,000) combined single limit bodily, death and property damage liability per
occurrence. Notwithstanding any other provision of this Agreement, City may self-insure for any risk set
forth in this Paragraph in the manner and to the extent that City self-insures for similar risks with respect to
its operations, equipment, and property. If, at any time during the term of this Agreement, City elects not to
self-insure, City shall comply with all applicable provisions of this Paragraph to the extent that City does not
so self-insure. Prior to any entry onto the Ponderosa Property by City or any representative, City or any
representative shall (a) deliver to the Association certificates of such insurance naming the Association as an
additional insured, and (b) provide reasonable proof that City and its agents, employees, consultants, and
contractors are covered by statutory worker's compensation insurance upon request. City acknowledges that
the right of entry granted in this Agreement is expressly conditioned on City's maintenance of the insurance
policies described in this Paragraph. If City receives notice that such policies will be canceled or modified in
accordance with clause (a) above, City shall obtain policies described herein from an alternative insurer prior
to such cancellation or modification.
2.5. Warranties. City warrants:
2.5.1. That it and its contractors/sub-contractors are financially solvent, able to pay all
debts as they mature and possess sufficient working capital to perform the Subject Work and perform all
obligations set forth in this Agreement;
2.5.2. That it and its contractor is able to furnish the proper facilities, tools, materials,
supplies, equipment and labor required to perform the Subject Work and its obligations hereunder;
2.5.3. That all contractors and subcontractors are authorized to do business in the State of
California and are properly licensed in all areas of work to be undertaken by them respectively in accordance
with the regulations of the Contractor's Licensing Board of the State of California and any other Authority;
2.5.4. That its execution of this Agreement and its performance thereof is within its duly
authorized powers;
Page 2 of7
2.5.5. That it has visited the Ponderosa Property, is familiar with the local and special
conditions under which the Subject Work is to be performed;
2.5.6. That its contractors/sub-contractors possesses a high level of experience and
expertise in the business administration, construction, construction management and superintendence of
projects of the size, complexity and nature of this particular project, and that it will perform the Subject
Work with the care, skill and diligence of such contractors; and,
2.5.7. That all precautions reasonably necessary shall be taken by City and its
contractors/sub-contractors for the protection of persons and property at or around the Ponderosa Property.
2.6. Indemnification. To the fullest extent allowed by law, City shall indemnify and hold
harmless the Association, its Board members, officers, directors, members, agents, legal counsel and
employees (the "Indemnitees") from and against any liens, claims, damages, losses, expenses, judgments,
and attorneys' fees, arising out of or resulting from the performance of the Subject Work that results in bodily
injury, sickness, disease, death, or injury, damage or destruction of property, including loss of use thereof or
other economic loss, to the extent the damage or injury is the result of City's or its contractor's negligence or
intentional acts or omissions, or the negligent or intentional acts or omissions of anyone directly or indirectly
employed by them or anyone for whose acts they may be liable. This indemnification obligation shall not be
construed as reducing or eliminating any other right or obligations of indemnity that would otherwise exist to
the Indemnitees, and this obligation shall survive the termination of this Agreement as well as the completion
of the Subject Work.
2.7. City Approval, Permits, and Costs. City agrees that all work anticipated under this
Agreement shall be properly authorized by any governmental agencies vested with jurisdiction over the
Subject Work. City agrees to pay all costs, fees, and expenses for purposes of obtaining such permission,
permit(s) or documentation.
2.8. Mitigation and Hours of Construction. While performing construction activities associated
with the Subject Project, City shall make all reasonable efforts to minimize interference with Owners' use
and enjoyment of the Ponderosa Property. City shall also make all reasonable efforts to minimize noise,
erosion, and dust associated with its construction activities, and shall attempt to maintain the affected
portions of the Ponderosa Property in a neat and safe condition at the end of each work day. City shall use
reasonable efforts to restrict construction activities contemplated herein to the hours between 7:00 a.m. and
6:00 p.m., Monday through Saturday ("Permitted Hours"); however, City will provide advanced written
notice to the Association in the event any construction activity will be performed outside the scope of the
Permitted Hours.
2.9. Restoration of Ponderosa Property. After the Subject Work has been completed, it shall be
City's duty and obligation under this Agreement to completely restore any damaged property, landscape,
components, irrigation, drainage systems, structures, or any other item that was damaged or affected during
the course of performing the Subject Work. City shall be obligated to repair any areas disturbed by
construction activities related to or in any way connected with the Subject Work.
3. General Provisions.
3.1. References to the Parties or any third party shall be deemed to include their authorized
representatives.
3.2. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or
neuter gender, shall include all other genders and the singular shall include the plural and vice versa. Titles of
articles, paragraphs and subparagraphs are for convenience only, and neither limit nor amplify the provisions
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of this Agreement in itself. The use herein of the word "including" when following any general statement,
term, or matter, shall not be construed to limit such statement, term or matter to the specific items or matters
set forth immediately following such word, but rather shall be deemed to refer to all other items or matters
that could reasonably fall within the broadest possible scope of such general statement, term or matter.
3.3. Whenever possible, each provision of this Agreement shall be interpreted in a manner as to
be effective and valid under applicable law. If, however, any provision of this Agreement, or portion thereof,
is prohibited by law or found invalid under any law, only such provision or portion thereof shall be
ineffective, without in any manner invalidating or affecting the remaining provisions of this Agreement or
valid portions of such provision, which are hereby deemed severable.
3.4. Any specific requirement in this Agreement that the responsibilities or obligations of the
Contractor also apply to a Subcontractor is added for emphasis and are also hereby deemed to include a
Subcontractor of any tier. The omission of a reference to a Subcontractor in connection with any of the
Contractor's responsibilities or obligations shall not be construed to diminish, abrogate or limit any
responsibilities or obligations of a Subcontractor of any tier under the Contract Documents or the applicable
subcontract.
3.5. Written notice shall be deemed to have been duly served if delivered in person to the
individual or a member of the firm or entity or to an officer of the corporation for which such notice was
intended, or if delivered or sent by facsimile or registered or certified mail to the addresses or facsimile
numbers listed herein unless otherwise notified in writing. Notices sent by facsimile shall be deemed
received upon transmission if sent between the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday. If
sent at other times, facsimiles will be deemed received at the beginning of the next working day thereafter.
3.6. No right or remedy herein conferred upon or reserved to either of the parties to this
Agreement is intended to be exclusive of any other right or remedy, and each and every right and remedy
shall be cumulative and in addition to any other right or remedy given under this Agreement or now or
hereafter legally existing upon the occurrence of an event of default under this Agreement. The failure of
either party to this Agreement to insist at any time upon the strict observance or performance of any of the
provisions of this Agreement, or to exercise any right or remedy as provided in this Agreement, shall not
impair any such right or remedy or be construed as a waiver or relinquishment of such right or remedy with
respect to subsequent defaults. Every right and remedy given by this Agreement to the parties to it may be
exercised from time to time and as often as may be deemed expedient by those parties.
3.7. The execution, interpretation, and performance of this Agreement shall in all respects be
controlled and governed by the laws of the State of California.
3.8. Assignment. Neither the Association nor City may assign this Agreement without the
express prior written consent of the other. Should either party attempt to assign this Agreement to any other
person or entity, the party attempting to assign shall remain legally obligated and responsible under the
Agreement. By signing this Agreement, both City and the Association bind themselves, their successors,
partners, assigns, and legal representatives to the other party hereto as respects the covenants, conditions,
agreements, and obligations contained in this Agreement.
3.9. Waiver. The Association's acts or failures to act to enforce any right or duty under this
Agreement shall not be considered or deemed a waiver of the right to enforce any other right or duty, nor is
the act or failure to act to be interpreted as approval of the breach by any other party, unless specifically
agreed to in writing.
3.10. Attorneys' Fees and Costs. Should any action, proceeding or arbitration be necessary to
construe or enforce the provisions of this Agreement, or the rights of the parties hereunder, the party
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n
prevailing in such action shall be entitled to recover all expenses, court costs, and reasonable attorneys' fees
(including such fees, costs and expenses that accrue prior to commencement of the lawsuit or arbitration) to
be fixed by the court or arbitrator and taxed as part of the judgment thereunder. Before any party may
initiate litigation against the other relative to this Agreement, both parties shall participate in non-binding
mediation with a mutually acceptable mediator and at a mutually acceptable time and location. The costs
charged by the mediator shall be split equally between the Parties. If a party fails to participate reasonably in
the mediation process before commencing a lawsuit, such lawsuit is subject to dismissal via a demurrer,
motion to strike, and/or motion for summary judgment.
3.11. This Agreement, including any specified attachments or other specified documents,
constitutes the entire agreement between the Association and City with respect to the obligations, conditions,
duties, and work to be performed under this Agreement. No change to this Agreement shall be valid unless
made by supplemental written agreement executed and approved by the Association and City. Except as
otherwise provided herein, any and all amendments, additions or deletions to this Agreement shall be null
and void unless approved by the Association and City in writing. Each party to this Agreement hereby
acknowledges and agrees that the other party has made no warranties, representations, covenants or
agreements, express or implied, to such party, other than those expressly set forth herein, and that each party,
in entering into and executing this Agreement, has not relied upon any warranties, representations, covenants
or agreements, express or implied to such party, other than those expressly set forth herein.
3.12. Each person signing this Agreement affirms that he or she has the necessary authority to
bind the party for which he or she signs.
3.13. Severability. If any provision in this Agreement becomes void or invalid or unenforceable in
law or equity or by judgment or court order, the remaining provisions hereof shall be and remain in full force
and effect.
3.14. Cumulative Remedies. The remedies set forth in this Agreement for breach of contract by
any party are cumulative remedies rather than on lieu of legal or equitable remedies otherwise available. A
party's pursuit of any remedy provided in this Agreement does not preclude that party from pursuing other
remedies, whether set forth in this Agreement or authorized by law or equity.
3.15. Integration. This Agreement is the entire agreement of the parties with respect to its subject
matter, and it supersedes and merges all prior and contemporaneous negotiations, agreements, promises and
representations.
3.16. Modification. Any modification or amendment to this Settlement Agreement must be in
writing and signed by all parties. This Settlement Agreement may not be modified or amended orally or by a
course of conduct.
3.17. Survival of Covenants. The covenants, representations and warranties set forth in this
Agreement shall survive its execution.
3.18. Binding on Successors. This Agreement is binding on the successors, heirs and assigns of
the Parties.
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The undersigned have read all of the terms and provisions of this Agreement, have had an opportunity to
fully consider the rights and consequences regarding executing same, fully understand the terms and
provisions of this Agreement and knowingly and voluntarily execute this Agreement. [CAUTION: PLEASE
READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE SIGNING.]
PONDEROSA COUNTRY HOMEOWNERS ASSOCIATION,
a California non-profit mutual benefit corporation
Dated:> By:
Dated:
Title:
Print Name:
By:_
Title:
Print Name:
CITY cipal corporation
Dated: \ 0
Dated:By:
Title:
Print Name:
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
By:
On _, 2009, before me,
KEMP, Deputy City Attorney
(—••• (~-(/
/
, notary public, personally appeared
= , proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and acknowledged to me that he/she/tbey executed
the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the state of California that the foregoing is true
and correct.
WITNESS my hand and official seal.
(Signature)Seal
JWWC. CUTUI ICOMM. #1775291 z
NotwyPublic-California 3San Owgo County -
My Comm. Exatts Pet 23.2011 f
Page 6 of 7
, notary public, personally appeared
STATE OF CALIFORNIA )
)
COUNTY OF SAN DIEGO )
On /My?/ 2009, before me, ^J0/t/*J C . L i
l/yi^TV/g/^f {_ . <^6/7"«^gr|g-
person whose name is subscribed to the within instrument and acknowledged to me that-fee/she/they executed
the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the state of California that the foregoing is true
and correct.
, proved to me on the basis of satisfactory evidence to be the
WITNESS my hand and official seal.
Seal
' ~«tofc:cuW ' I
COMM. #1775291 z
Notary Public-California 5
San Diago County -
My term Expire Oct 23.2011 f
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO )
On _, 2009, before me,_, notary public, personally appeared
, proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the state of California that the foregoing is true
and correct.
WITNESS my hand and official seal.
(Signature)Seal
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