HomeMy WebLinkAbout2011-10-25; City Council; 20718; ENCROACHMENT AGREEMENT SDGE LAKE CALAVERA FENCECITY OF CARLSBAD - AGENDA BILL
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MTG.
DEPT.
20,718
10/25/11
P&R
AUTHORIZE THE MAYOR TO EXECUTE
AN ENCROACHMENT AGREEMENT
WITH SAN DIEGO GAS & ELECTRIC
FOR THE LAKE CALAVERA FENCE
PROJECT CONTRACT NO. SS09-01 (B)
DEPT. DIRECTOF^JSP
CITY ATTORNEY
CITY MANAGER /(V
RECOMMENDED ACTION:
Adopt Resolution No. 2011-250 authorizing the Mayor to execute an Encroachment
Agreement with San Diego Gas & Electric Company for the Lake Calavera Fence Project.
ITEM EXPLANATION:
In July 2009, the city was awarded an Environmental Mitigation Program (EMP) Grant from the
San Diego Association of Governments (Sandag) in the amount of $286,667 with the objective
to fund various projects for the protection and enhancement of the sensitive natural resources
within the Lake Calavera and Highlands Preserves. One of the identified projects is the
construction of fencing at various locations throughout each preserve to provide openings and
trailhead signs directing users to the approved trail routes, and closing unauthorized trails. The
fencing project compliments the planned trails identified in the Lake Calavera Trails Master
Plan.
A portion of the referenced fencing runs along the eastern boundary of the preserves and
parallels an existing San Diego Gas & Electric (SDG&E) gas main easement. In addition, as
part of the fencing project, the city is proposing to construct a gate closing unauthorized
pedestrian and bicycle access to an existing SDG&E electrical easement. In order to allow for
the fence and gate construction, the city is required to secure an Encroachment Agreement with
SDG&E. Therefore, staff is recommending the City Council authorize the Mayor to execute an
Encroachment Agreement with SDG&E for the Lake Calavera Fence Project.
FISCAL IMPACT:
There is no direct fiscal impact associated with the execution of an Encroachment Agreement.
ENVIRONMENTAL IMPACT:
The proposed management activities identified in the EMP Grant (fencing, signs, public
outreach, and education) are consistent with the City's approved Preserve Management Plan,
Habitat Management Plan, and Open Space Management Plan. The fence project is exempt
from the California Environmental Quality Act (CEQA) per state CEQA Guidelines Section
15303(e) - new construction of accessory structures including fences.
DEPARTMENT CONTACT: Steven Jantz 760-434-2838 Steve.iantz@ carlsbadca.eov
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
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CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
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EXHIBITS:
1. Resolution No. 2011-250 authorizing the Mayor to execute an Encroachment
Agreement with San Diego Gas & Electric Company for the Lake Calavera Fence Project.
2. San Diego Gas & Electric Company Encroachment Agreement
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1 RESOLUTION NO. 2011250
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD CALIFORNIA AUTHORIZING THE MAYOR TO
3 EXECUTE AN ENCROACHMENT AGREEMENT WITH SAN
DIEGO GAS & ELECTRIC COMPANY FOR THE LAKE
CALAVERA FENCE PROJECT.
5
6 WHEREAS, in July 2009, the city was awarded an Environmental Mitigation
7 Program (EMP) Grant from the San Diego Association of Governments (Sandag) in the
8 amount of $286,667 to fund various projects for the protection and enhancement of the
9 sensitive natural resources within the Lake Calavera and Highlands Preserves; and
10 WHEREAS, an identified project within the EMP Grant is the construction of
fencing at various locations throughout each preserve to provide openings and trailhead
12 signs directing users to the approved trail routes, and closing unauthorized trails; and
13 WHEREAS, a portion of the referenced fencing runs along the eastern boundary
14 of the preserves and is located within existing San Diego Gas & Electric (SDG&E) gas
15 and electric main easements; and
16 WHEREAS, in order to allow for the fence and gate construction, the city is
required to secure an Encroachment Agreement with SDG&E
18 WHEREAS, the City Council finds it is in the best interest of the citizens of
19 Carlsbad to execute an Encroachment Agreement with SDG&E for the construction of
20 the Lake Calavera Fence Project.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
22 Carlsbad, California as follows:
23
24 1. That the above recitations are true and correct.
25 2. That the Mayor is authorized to execute a San Diego Gas and Electric
Encroachment Agreement for the Lake Calavera Fence Project.
26
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 25th day of October, 2011, by the following vote to wit:
AYES: Council Members Hall, Blackburn, Douglas and Packard.
NOES: None.
ABSENT: Council Member Kulchin.
MATf HALL, Mayor
ATTEST:
lfoRRAIr/E\M.
/SEAL) O
'
, City ClerlC
ENCROACHMENT AGREEMENT
This Encroachment Agreement (this "Agreement") is made and entered into this
day of 1, 2011 ("Effective Date") by SAN DIEGO GAS & ELECTRIC
COMPANY, a California corporation, ("SDG&E"), and the City of Carlsbad, a municipal
corporation ("Owner")
RECITALS
A. Owner owns in fee certain real property located within the County of San Diego, State of
California, Assessor's Parcel Numbers) 168-020-1900 (the "Property"), as more particularly
described in Exhibit A attached hereto and made a part hereof.
B. SDG&E is the Right of Way holder of a 150-foot wide Electric Transmission Easement R/W
Nos. #45885, recorded 06/11/1969, Doc # 104096, #14058 recorded 01/28/1941, bk 1118, pg
495, and a 30-foot wide Gas Transmission Easement R/W No. #45308 recorded 06/13/1960,
Doc. #120073 ("Permitted Purposes") in the Official Records of the County of San Diego. The
portion of the Property encumbered by the Easement is hereinafter referred to as the "Easement
Area" as more particularly described on Exhibit B attached hereto and made a part hereof.
C. Owner has constructed, plans to construct or plans to permit the construction by a third party
of certain fencing (metal post and 3-wire fence) and the installation of an SDG&E MS-3 Range
Gate (or approved alternative) across the existing 150-foot wide electrical transmission easement
and other improvements associated therewith (collectively, the "Improvements") within the
Easement Area, as more particularly described on Exhibit C attached hereto and incorporated by
reference. The portions of the Easement Area that are or will be subject to such encroachment by
Owner (the "Encroachment Area") are shown on the map attached hereto as Exhibit D and
incorporated by reference.
D. Owner has requested permission from SDG&E to construct, maintain and operate the
Improvements within the Easement Area. SDG&E has determined that the Improvements, as
specifically described on Exhibit C. do not presently interfere with SDG&E's full use of the
Easement Area, and SDG&E is therefore willing to agree to allow such Improvements to remain
within the Easement Area, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and
SDG&E hereby agree as follows:
1. Consent to Encroachment. SDG&E hereby consents to the construction, maintenance and
operation of the Improvements within the Easement Area, in the manner and location specifically
set forth on Exhibits C and D, including all rights of access, ingress and egress over the
Easement Area as necessary to fulfill Owner's obligations under this Agreement, in such areas as
SDG&E determines, in its sole and absolute discretion, will occasion the least practicable
damage and inconvenience to SDG&E, its facilities and operations. Notwithstanding anything
herein to the contrary, this consent only extends to the Improvements described on Exhibit C in
the locations described on Exhibit D. Owner does not have the right to locate any additional
improvements in any other locations within the Easement Area unless specifically agreed to by
SDG&E in writing.
2. Termination: Restoration. SDG&E may terminate Owner's rights under this Agreement, at any
time, upon ninety (90) days written notice to Owner, if SDG&E, in its sole and absolute
discretion, determines that Owner's use of the Easement Area is inconsistent with SDG&E's
operational needs or in any way interferes with, impairs or otherwise impedes SDG&E's full use
of its facilities installed within the Easement Area or any facilities that SDG&E plans to install in
the Easement Area in accordance with the terms of the Easement. Upon such termination by
SDG&E, Owner, at Owner's sole cost and expense, shall remove all Improvements that encroach
upon the Easement Area and shall repair and restore the Easement Area to its condition
immediately prior to the construction of said Improvements. Owner shall pay the entire cost of
such removal and restoration, and SDG&E shall have no liability for any costs caused by or
related to any such termination, removal or restoration. If Owner fails to remove all
Improvements that encroach onto the Easement Area or fails to repair or restore the Property
within said ninety (90) day period, SDG&E may perform such removal, repair or restoration as
necessary at Owner's reasonable cost and expense, which Owner shall pay to SDG&E within
ninety (90) days of receipt of invoice for same. Owner hereby agrees to allow SDG&E to access
the Easement Area for such purpose. Owner further acknowledges that SDG&E's termination
rights shall not be affected by any Improvements that Owner has made to the Easement Area,
regardless of the nature or extent of those Improvements. Owner understands and agrees that
Owner shall not be entitled to any compensation whatsoever for the termination of Owner's
rights under this Agreement by SDG&E, independent of the value of Owner's investment in the
Improvements or the Easement Area.
3. Indemnification: Release.
(a) Indemnification. Owner shall, to the maximum extent permitted by law, indemnify,
protect, defend and hold harmless SDG&E, its parent corporation, subsidiaries and affiliates, and
their respective officers, managers, directors, representatives, agents, employees, transferees,
successors and assigns (each, an "Indemnitee" and collectively, "Indemnitees") from and
against all claims, losses (including, but not limited to, diminution in value), actions, demands,
damages, costs, expenses (including, but not limited to, experts' fees and reasonable attorneys'
fees and costs) and liabilities of whatever kind or nature (collectively, "Claims"), arising from or
in any way connected with the occupancy or use of the Easement Area by Owner or Owner's
contractors, agents, or invitees, or the exercise by Owner of its rights hereunder, or the
performance of, or failure to perform, Owner's duties under this Agreement, including, but not
limited to, Claims arising out of: (1) injury to or death of persons, including but not limited to
employees of SDG&E; (2) injury to property or other interest of SDG&E, Owner or any third
party; and (3) violation of any applicable federal, state, or local laws, statutes, regulations, or
ordinances, including all legal requirements relating to human health or the environment, and
including any liability which may be imposed by law or regulation without regard to fault;
excepting only with respect to any Indemnitee, any Claim arising from the sole, active
negligence or willful misconduct of such Indemnitee. In the event any action or proceeding is
brought against any Indemnitee for any Claim against which Owner is obligated to indemnify or
provide a defense hereunder, Owner upon written notice from SDG&E shall defend such action
or proceeding at Owner's sole expense by counsel approved by SDG&E, which approval shall
not be unreasonably withheld, conditioned or delayed.
(b) Release. Owner accepts all risks relating to its occupancy and use of the Easement
Area. SDG&E shall not be liable to Owner for, and Owner hereby waives, releases, exonerates,
discharges and covenants not to sue SDG&E and the other Indemnitees from, any and all
liability, whether in contract, tort or on any other basis, for any injury, damage, or loss resulting
from or attributable to any occurrence on or about the Easement Area, the condition of the
Easement Area, the use or occupancy of the Easement Area by Owner, or SDG&E's operation
and maintenance of SDG&E's facilities in the Easement Area, excepting only with respect to any
Indemnitee, any injury, damage, or loss arising from the sole, active negligence or willful
misconduct of such Indemnitee.
4. Compliance with Laws. Owner shall, at its sole cost and expense, promptly comply with all
laws, statutes, ordinances, rules, regulations, requirements or orders of municipal, state, and
federal authorities now in force or that may later be in force, including but not limited to the
conditions of any permit relating to Owner's use or occupancy of the Easement Area.
5. Alterations. Except for the Improvements authorized pursuant to this Agreement, Owner shall
not construct any additional buildings or structures on the Easement Area, nor shall Owner make
any alteration, addition or improvement to the Easement Area that would increase the
Encroachment Area, either horizontally or vertically. Owner shall not drill, bore or excavate on
the Easement Area except in connection with the removal of the Improvements as required by
this Agreement.
6. Damage or Destruction. In the event that the Improvements which encroach onto the Easement
Area are destroyed or demolished, Owner shall not rebuild the Improvements on any part of the
Easement Area except pursuant to plans and specifications approved by SDG&E in writing in a
separate document.
7. Condition of Easement Area. Owner accepts the Easement Area in its existing physical
condition, without warranty by SDG&E or any duty or obligation on the part of SDG&E to
maintain the Easement Area. Owner understands that numerous hazards, environmental or
odierwise, may be located in, on, or underlying the Easement Area, and that hazardous materials
may be used in connection with SDG&E facilities that may be operated in the Easement Area,
and agrees that entry onto the Easement Area is at Owner's sole risk and expense.
8. Maintenance. Owner shall be responsible for the maintenance of the Improvements in good
order, condition and repair, and Owner shall coordinate all activities regarding the maintenance
of the Improvements to reasonably minimize any interference with the use by SDG&E of the
Easement Area, and Owner shall conduct its activities in such a manner so as not to endanger the
Easement, the environment and human health and safety. Owner shall be responsible for
remediation of any hazardous materials release caused by Owner, and to clean and remove debris
and or promptly repair any damages to the Easement Area following any entry or activity by
Owner, returning the Easement Area to a like or better condition.
9. Reserved Rights. SDG&E reserves the right to use the Easement Area for such purposes as it
may deem necessary or appropriate if, and whenever, in the interest of its service to its patrons or
consumers or the public, it shall appear necessary or desirable to do so. Furthermore, SDG&E
reserves the right to access to the Easement Area if emergency repairs or maintenance are
required to SDG&E facilities in the vicinity of the Easement Area
10. Insurance. Prior to the Effective Date, Owner shall procure, and thereafter Owner shall carry
and maintain in effect at all times during the term of this Agreement the following insurance:
Worker's Compensation in compliance with applicable labor codes, acts, laws or statutes, state or
federal; Employer's Liability with limits of not less than $1,000,000 for injury or death, each
accident; Commercial General Liability for bodily injury and property damage with limits of not
less than $2,000,000 each occurrence and $5,000,000 in the aggregate; and Business Automobile
with a combined single limit of not less than $2,000,000 each accident. Owner is also responsible
for causing its agents, contractors and subcontractors to comply with these insurance
requirements whenever working on Owner's behalf within the Easement Area.
11. Notice. Any notices or communications hereunder shall be in writing and shall be personally
delivered or sent by first class mail, certified or registered, postage prepaid, or sent by national
overnight courier, with charges prepaid for next business day delivery, addressed to the
addressee party at its address or addresses listed below, or to such other address or addresses for
a party as such party may from time to time designate by notice given to the other party. Notices
shall be deemed received, if sent by personal delivery upon actual receipt by the party being sent
the notice, or on the expiration of three (3) business days after the date of mailing, or on the
following business day if sent by overnight courier:
If to SDG&E:
San Diego Gas and Electric Company
Land Services Department
8335 Century Park CT CP1 ID
San Diego, CA 92123
Telephone:
Facsimile:
E-mail:
If to Owner:
City of Carlsbad
Parks and Recreation Department
799 Pine Avenue, Suite 200
Carlsbad CA 92008
Telephone: (760) 434-2826
Facsimile: (760)434-5088
E-mail: parksandrec@carlsbadca.gov
12. Governing Law. This Agreement shall in all respects be interpreted, enforced, and governed
by and under the laws of the State of California.
13. Entire Agreement. This Agreement supersedes all previous oral and written agreements
between and representations by or on behalf of the parties and constitutes the entire agreement of
the parties with respect to the subject matter hereof. This Agreement may not be amended except
by a written agreement executed by the parties.
14. Binding Effect. This Agreement and the covenants and agreements contained herein shall be
binding upon, and shall inure to the benefit of, the parties hereto and their respective heirs,
successors and assigns (subject to the provisions of Section 15 below). No assignment or
delegation by Owner, whether by operation of law or otherwise, shall relieve Owner of any of its
duties, obligations or liabilities hereunder, in whole or in part. The covenants of Owner
hereunder shall run with the land.
15. Assignment. This Agreement and the rights of Owner hereunder are appurtenant to the
Property presently owned by Owner and may not be separately assigned, transferred, conveyed
or encumbered. Any purported assignment, transfer, conveyance or encumbrance violating the
foregoing condition shall be void and of no effect.
16. Attorneys' Fees. Should either party bring an action against the other party, by reason of or
alleging the failure of the other party with respect to any or all of its obligations hereunder,
whether for declaratory or other relief, then the party which prevails in such action shall be
entitled to its reasonable attorneys' fees (of both in-house and outside counsel) and expenses
related to such action, in addition to all other recovery or relief. A party shall be deemed to have
prevailed in any such action (without limiting the generality of the foregoing) if such action is
dismissed upon the payment by the other party of the sums allegedly due or the performance of
obligations allegedly not complied with, or if such party obtains substantially the relief sought by
it in the action, irrespective of whether such action is prosecuted to judgment.
17. Survival of Obligations. Owner's obligations under Sections 2 and 3 of this Agreement, and
all representations, warranties, indemnifications or other provisions which by their nature survive
termination shall survive the exercise of SDG&E's termination rights pursuant to Section 2 of
this Agreement.
18. No Waiver. No waiver with respect to any provision of this Agreement shall be effective
unless in writing and signed by the party against whom it is asserted. No waiver of any provision
of this Agreement by a party shall be construed as a waiver of my subsequent breach or failure of
the same term or condition, or as a waiver of any other provision of this Agreement
19. Captions. The captions in this Agreement are for reference only and shall in no way define or
interpret any provision hereof.
20. Counterparts. This Agreement may be executed in identical counterpart copies, each of
which shall be an original, but all of which taken together shall constitute one and the same
agreement.
21. Recording. Owners hereby consent and agree to the recording by SDG&E of this Agreement
against the Property. Owner agrees to sign any additional documents reasonably required to
complete such recording.
22. Ratification of Easement. Except as modified by this Agreement in regard to the Property, all
of the terms, conditions and provisions of the Easement shall remain in full force and effect and
are hereby ratified and confirmed. To the extent the terms of the Easement are inconsistent with
this Agreement, the terms of this Agreement shall control.
[Signature page follows.]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
SAN DIEGO GAS AND ELECTRIC COMPANY,
a California corporation
By:.
OWNER : CITY OF CARLSBAD, A Municipal Corporation
MATT1HALL, Mayor
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of
On ZS^ZOtlbefore me,
personally appeared [v\^l"ii TTA.U
. ^0^^^^-':re insert name and titlfllof the otficer)
who proved to me on the basis of satisfactory evidence to be the person(s}.whose nameljs,) is/aY^,subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in hiVhar/Thfir. nnthnrirr-rl
capacity(4es), and that by his/her/their 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 paragraph
is true and correct.
WITN^SS.my hand and official seal.
V
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Lake Calavera Preserve Boundary
30-foot SDG&E Gas Pipe Easement
150-foot SDG&E Electric Easement
J:\Requests2010Plus\ParksRecV4644814_11
City of Carlsbad
Easement Area
Exhibit B
EXHIBIT C
LAKE CALAVERA PRESERVE EMP FENCE PROJECT
PROJECT COMPONENTS
A. 3-WIRE FENCE
PARTI-GENERAL
1.01 WORK INCLUDED
A. Install metal posts and smooth 3-wire fence
B. Drawings and general provisions of the Construction Contract apply to work of this section.
PART 2-PRODUCTS
2.01 FENCING MATERIALS
All fence materials are to be per Caltrans Section 80-3 Types BW and WM Fence as detailed or as
modified by this section:
A. Line posts are to be galvanized 6-foot T-post per 2006 Caltrans 80-3.01A, spaced 10 feet
on center.
B. Steel tie-off post set in 18" concrete footing every 100* o.c.
C. End posts, pull posts, corner posts and brace posts are to be galvanized per 2006
Caltrans 80-3.01F
D. Wood posts are not permitted.
E. Fencing shall not be Barbed Wire or Wire Mesh. Fencing shall be as detailed in Exhibit
"A".
F. Fencing wire shall be green, non-barbed minimum 9-guage galvanized tension wire.
Provide three (3) wires.
G. Wire shall be attached to posts with clips.
H. All miscellaneous hardware is to be galvanized per 2006 Caltrans 80-3.01F.
2.02 CONCRETE
A. Concrete shall have a minimum strength of 2,500 psi.
B. Concrete shall be a minimum 3" around entire post.
PART 3 - EXECUTION
3.01 LAYOUT
A. Call Dig Alert for mark out of all utilities prior to fencing installation.
B. Stake fencing alignment with string line and notify owner 48 hours in advance for approval
of alignment before beginning post installation.
3-02 INSTALLATION
A. Fence construction methods shall conform to 2006 Caltrans Section 8-3.02 and Caltrans
Standard Plan A86.
B. Spacing of pull posts shall not exceed 100 foot maximum.
C. All posts shall be 4.50' above grade with top wire approximately 4.25' above grade.
D. Wire shall be tied off at each pull post.
E. End posts are to be installed at all locations adjacent to existing roads.
F. Fencing shall be offset a minimum of 3-feet behind existing roads, trails or other improvements
unless placement encroaches on habitat. The Project Inspector may make adjustment to this
offset if field conditions require.
G. Bid Item for Construct Three Wire Fencing includes all work including line posts, corner posts,
slope posts, anchors or any other materials etc. required to install fencing. Contractor is advised
that the work site is located in open space with limited vehicular access, rough and uneven
terrain with canyons and hills, as detailed in this section, shown in the Appendix, or as shown on
the Site Plan
H. Only the Caltrans construction specifications sections and Caltrans Standard Plan as attached to
this contract apply. All other provisions are per the precedence of documents referenced in this
contract.
I. Workmanship: The fence construction shall be plumb, both in line and transverse to the fence,
straight and rigid with rails held firmly in place. Details of construction, not specified, shall be
performed in keeping with good standard fencing construction practices.
J. All fencing shall be installed per the detail provided at the end of this section.
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B. Vehicular access gate- Refer to San Diego Gas & Electric Company Standard Drawing No MS-3
PARTI-GENERAL
1.01 WORK INCLUDED
A. This work consists of furnishing and installing an SDG&E standard MS-3 Range Gate or
approved alternative. The contractor shall furnish all labor, equipment, and
transportation necessary to perform the work in this specification.
B. Drawings and general provisions of the Construction Contract, apply to work of this
section.
PART 2-PRODUCTS
2.01 VEHICULAR ACCESS GATE MATERIALS
A. The contractor shall furnish gates, gate posts and hinges lock open posts and appurtenances
manufactured to conform to the drawings.
B. Materials shall conform to notes on the drawings.
C. The contractor shall construct concrete footings as shown on the drawing.
D. Contractor furnished concrete used for gate installation shall meet the standard specification
E. All other materials, labor, and incidentals necessary for gate installation shall be furnished by
the contractor and shall be included in the contract price
2.02 CONCRETE
A. Each post shall be set in a concrete footer, as indicated on drawings, with minimum strength
2,500 psi concrete.
B. Contractor shall construct concrete footings as shown on Standard Drawing MS-3.
C. Concrete shall be a minimum 6" around entire post.
PART 3 - EXECUTION
3.01 LAYOUT
A. Call Dig Alert for mark out of all utilities prior to fencing installation.
B. Stake gate location and notify owner 48 hours in advance for approval of alignment
before beginning post installation.
3.02 INSTALLATION
A. Gate posts shall be erected plumb and in accordance with the details shown on SDG&E
standard MS-3 Range Gate as shown on Exhibit "C".
Exhibit C
RANGE GATE MS-3
3-strand Smooth Wire Fence
Small Sign
Vehicular Access Gate (16' Wide Typ.)
Lake Calavera Preserve Boundary
3O-foot SDG&E Gas Pipe Easement - See Inset Detail Below
150-foot SDG&E Electric Easement
Inset Detail , 30' Easement ,
Location of Fence
10' Minimum from
Easement Centerline
J:\Requests2010Plus\ParksRec\4644814_11
City of Carlsbad
Fence Locations
Exhibit D