HomeMy WebLinkAbout1987-09-01; City Council; 9011-1; BUENA VISTA CHANNEL MAINTENANCE AGREEMENTLIPOF CARLS~SAD - AGENWBILL .- ._ - .,. .
AB# 90 11 -*! ClTY 1 AGREEMENT MTG, 9/1/87
DEPT. TITLE: BUENA VISTA CHANNEL MAINTENANCE
LIPOF CARLS~SAD - AGENWBILL .- ._ .,. . -
I DEPT. AB# 901 TITLE: BUENA VISTA CHANNEL MAINTENANCE I MTGI 91~87 -"?! 1 AGREEMENT IClTY 1
DEPT. CA I \CITY h
RECOMMENDED ACTION:
I That the City Council adopt Resolution No. ' 9220 1 ITEM EXPLANATION
On May 19, 1987, the City Council adopted Resolution No. 9081
approving an agreement of cooperation in connection with Buena
Vista Creek. That agreement provided that Hughes North Associates and Hughes North County Associates I1 would dredge remove vegetation and sediment from the creek and the Cities o
Carlsbad and Oceanside and Caltrans agree to participate in a
study addressing long-term maintenance solutions to prevent
future flooding of the creek. The City of Oceanside has modif
the agreement so that the study of long-term solutions will se:
as the basis for serious discussions concerning the possibilit;
of entering into a future agreement. Caltrans has limited its
participation in the future study to furnishing factual data
relative to Highway 78 and the channel. The agreement was alsc
clarified so that other property owners or agencies with jurisdiction in the creek could be invited to participate upon approval of the parties.
The attached agreement has been executed by all parties. The
State Department of Fish and Game will not allow the commencemt of construction in the creek until September 15, 1987, and Hugk has agreed to commence the work pursuant to this agreement immediately thereafter.
I F1SCAL IMPACT There will be no costs to the City for. the physical maintenance
and dredging of Buena Vista Creek Channel, There will be staff time associated with participation in a study designed to addre long-term solutions to the flooding problem of an unknown amoun
at this time.
I EXH1B1TS
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Resolution No. ?a2 9
Agreement of Cooperatlon
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RESOLUTION NO. 9220
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT OF
COOPERATION IN CONNECTION WITH BUENA VISTA CREEK.
The City Council of the City of Carlsbad, Californi
does hereby resolve as follows:
1. That certain agreement between the cities of
Carlsbad and Oceanside, the State of California, and Hughes
County Associates, attached hereto marked Exhibit "A" and ma
part hereof, is hereby approved.
2. That the Mayor of the City of Carlsbad is hereb
authorized and directed to execute said agreement for and on
behalf of the City of Carlsbad.
PASSED, APPROVED AND ADOPTED at a regular meeting oj
City Council of the City of Carlsbad, California, held on the
Is t day of September , 1987 by the following vote,
wit:
AYES: Council Members Kulchin, Pettine, Mamaux and Larson
NOES: None
ABSENT: Council Member Lewis
ATTEST :
4k5s.jL ANN J. KULC N, Mayor w& Pro-Tern
hdPR- ALETHA L. RAUTENKRANZ, Citp Clerk
0 w 0 July 22,
AGREEMENT OF COOPERATION
REGARDING
RISK OF FLOODING OF BUENA VISTA CREEK
This agreement, made and entered into as of the
22th day of July , 1987, by and among the CITY OF CARLSBAD, California (hereinafter referred to as l*Carlsbadlt) : the CITY OF OCEANSIDE, California (hereinafter referred to as ItOceansidett); the State of California by and through the State Department of Transportation ("CalTrans) and HUGHES NORTH COUNTY ASSOCIATES, a California partnership, and HUGHES NORTH COUNTY ASSOCIATES 11, a (hereinafter ref erred to California partnership collectively as "Hughesll) ;
- WITNESSETH
WHEREAS, the Buena Vista Creek ("Buena Vista Creekgf or l1Creekt1) drains a watershed of approximately 25 square miles, flowing though portions of the County of San Diego (flCountytl) , the City of Vista (stVistatl) and the City of Oceanside (twOceansidett) :
WHEREAS, the Creek flows across the approximately
34 acres of land owned by Hughes ("Hughes Lands") and thereafter into the Buena Vista Lagoon (the ttLagoontt) and the Pacific Ocean, as shown on the map attached hereto as Exhibit A (the "Mapft) :
WHEREAS, the Hughes Lands are located within the cities of Carlsbad and Oceanside, with the portion of the
Hughes Lands located in Carlsbad being owned by Hughes North County Associates and the portion of the Hughes Lands
located in Oceanside being owned by Hughes North county
Associates 11;
WHEREAS, in 1985 the Creek overflowed its banks and flooded a portion of State Highway 78 (the "HighwaY") I
which Highway is shown on the Map;
WHEREAS, the staff of CalTrans and Oceanside and
Carlsbad have expressed concern regarding the future risk of flooding of the Highway:
WHEREAS, it has been claimed that the Possible
causes of such flooding may include the following, among others:
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a. the Highway being at an elevation which is susceptible of flooding:
b. the stabilization of the surface of the Lagoon at an elevation which inhibits the run-off of in-stream flows :
c. the pre-1971 filling to provide for the construction of improvements in connection with the development of the Hughes Lands and the adjacent May Centers project ("Plaza Camino Real Center") ;
d. the 1979 relocation of the Creek channel northwesterly to provide for the expansion of the Plaza Camino Real Center parking lot;
e. the development of the lands in Oceanside immediately adjacent to and northwesterly of the Highway, resulting in increased storm water run-off and sedimentation flows in the Creek:
f. urban development within the watershed generally which has increased storm water run-off and sedimentation flows in the Creek; and
g. the growth of vegetation and sedimentation within the Creek;
WHEREAS, Hughes contends that at no time did Hughes
undertake Or agree, and there is no burden running with the
Hughes Lands, to maintain the Creek; and that it has no
duty or obligation to maintain the Creek for natural water and sediment flows, nor for increased water levels due to
the causes mentioned above, nor for any other cause or reason;
WHEREAS, Carlsbad and Oceanside contend, without limiting any other claims or contentions, that Hughes is obligated to maintain the Creek as a result of or in connection with its ownership of the Creek or an undertaking connected with the various approvals by Carlsbad to provide for filling for purposes of development within the Hughes Lands,, which contemplate the development
of the lands south of the Creek, the construction of a bridge across the Creek and the development of the lands northwesterly of the Creek;
WHEREAS, Carlsbad contends that Hughes' actions or
inactions constitute a public nuisance and has announced its intentions to institute abatement proceedings pursuant to Carlsbad Municipal Code Chapter 6.16 on that portion of the creek owned by Hughes and is willing to suspend the proceedings in response to Hughes' agreement to dredge the channel: and
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WHEREAS, if work is completed pursuant to this agreement, such proceedings will be unnecessary:
WHEREAS, Carlsbad has contended that there exists an emergency situation and imminent threat of flooding to persons and property, both public and private, adjacent to or near the Creek: and
WHEREAS, Hughes has requested the approval of a Minor Subdivision Map (Number 711) subdividing the Hughes Lands into three parcels, which Carlsbad has approved subject to the condition, among others, that Hughes agree to maintain the Creek within the Hughes lands in perpetuity:
WHEREAS, Hughes has refused to accept said maintenance condition because, among other things, Hughes contends that it has no obligation with respect to such maintenance and that the City does not have the authority to require such on-going maintenance in connection with the approval of the Minor Subdivision Map or otherwise:
WHEREAS, the parties desire to engage in discussions in an attempt to avoid the costs of expensive, extensive and lengthy litigation and generally to cooperate in good faith to seek a long-term equitable arrangement for addressing the risk of flooding to the Highway taking into consideration the causes mentioned above: and
WHEREAS, given the present condition of the channel and as a gesture of good faith and support for an amicable solution to the conflict and for other reasons, Hughes is willing to engage a contractor on behalf of the parties hereto to dredge the channel within the Hughes Lands, and to pay the costs thereof, all on the terms and subject to the conditions set forth herein below:
NOW, THEREFORE, for and in consideration of the foregoing recitals of fact, the mutual covenants and
conditions set forth hereinbelow, and other consideration,
the receipt and adequacy of which is hereby acknowledged,
the parties hereto agree as follows:
1. DREDGING OF CREEK.
Hughes shall proceed as expeditiously as possible, subject to the necessity of obtaining governmental approvals, including approval from the California Department of Fish and Game, to engage a contractor on behalf of the parties hereto to dredge and remove vegetation and sediment from the Creek as described in the specifications attached hereto as Exhibit B (the
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ttWork") . The contractor and the form of agreement to be entered into with the contractor shall be subject to the prior written approval of the parties hereto, which approval shall not be unreasonably withheld. Hughes shall pay all costs and expenses in connection with the Work.
2. COOPERATION TO PROVIDE FOR LONG-TERM SOLUTION.
The parties recognize the need for a long-term solution to prevent future flooding of the Creek and agree
to participate in a study which will address this problem in an effort to develop methods for a mutually agreeable allocation of costs for future maintenance. The study will serve as the basis for serious discussions concerning the
for a long-term solution to the problem of allocating costs
and maintenance responsibilities on the Creek..
possibility of entering into a future agreement providing
Participation in the study by CalTrans will be limited to furnishing factual data relative to Highway 78
and the channel from existing CalTrans files upon request of any other party to this Agreement.
Owners of other property adjacent to the Channel or other agencies with jurisdiction in the Creek watershed may be invited with the approval of all parties to participate in the study and any discussions held pursuant to this Agreement.
3. ACKNOWLEDGMENT OF NO PREJUDICE AND PRESERVATION
OF ALL RIGHTS.
Nothing contained herein or done by Hughes or any
other party to this agreement, including engaging a
contractor to perform the Work or bearing or paying the costs in connection therewith or in otherwise assisting or undertaking any activities in connection with the Work, is or shall be construed as or be an undertaking, agreement or acknowledgment or admission of any duty or obligation to maintain or do any work, maintenance or dredging of any kind or nature in connection with the Creek, and none of the parties hereto shall claim, assert or allege anything to the contrary in any administrative or judicial proceeding or otherwise.
Each of the parties hereto acknowledges that
nothing contained herein or done pursuant to' this agreement, shall constitute or be a waiver or release of any rights, remedies, claims or defenses which any of the parties hereto may have in connection with these matters.
All such rights are expressly reserved.
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Carlsbad's acknowledgment of the expenditure of money by Hughes for channel maintenance and agreement to seek a long-term solution is without prejudice to Carlsbad's position that channel maintenance is the responsibility of the property owners adjacent to the
channel.
Notwithstanding anything in this section to the contrary, in the event of litigation Hughes agrees to waive any right to recover any part of the money spent pursuant to this agreement from any of the parties to this
agreement.
4 * ADJACENT UPLAND DEVELOPMENT.
Oceanside, Carlsbad and Hughes shall cooperate to address outstanding issues regarding the future development
of the portions of the Hughes lands adjacent to the channel in Oceanside and Carlsbad, together with a proposed bridge crossing the channel, all in accordance with applicable state and local laws and regulations.
This agreement is contingent upon and subject to the issuance of governmental approvals and permits by local, state and federal governmental agencies for the Work described in Exhibit B attached hereto.
This agreement may be executed in any number of counterparts, and each executed counterpart shall have the
same force and effect as an original instrument and as if all of the parties to the aggregate counterparts had signed
the same instrument
The terms, provisions and conditions hereof shall be binding upon and inure to the benefit of the parties and their successors and assigns and shall not be construed as
benefitting any other persons.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of the date first set forth above.
CITY OF CARLSBAD
A Municipal Corporation of the State of California
By &;y%"...- ,/&%,& Title ANN J. CHIN, myor Pro-Tern Date 9 3 87
. " 0 AGREEMENT OF COOPERAT Io REGARDING
RISK OF FLOODING OF BUENA VISTA CREEK .
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CITY OF OCEANSIDE A Municipal ration of the 7 State
B Title Mayo Date I I
STATE OF CALIFORNIA
By the State Department of Transportation
BY Title Date
HUGHES NORTH COUNTY ASSOCIATES a California General Partnership, By HI-NC, a California General Partnership, a General Partner, By HUGHES INVESTMENTS, a California General Partnership, a General Partner
BY William W. Hughes, Jr. a General Partner Date
HUGHES NORTH COUNTY ASSOCIATES 11, a California General Partnership, By HUGHES INVESTMENTS, a California General Partnership, a' General Partner,
BY William W. Hughes, Jr. a General Partner Date
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CITY OF OCEANSIDE
A Municipal Corporation of the State of California
BY Title Date
STATE OF CALIFORNIA By the State Department of
BY Ti Da
HUGHES NORTH COUNTY ASSOCIATES
a California General Partnership, By HI-NC, a California General Partnership, a General Partner, By HUGHES INVESTMENTS, a California General Partnership, a General Partner
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By ,I I( L:,"--- -, CL-4.: /'.
William W. Hughes, Jr.L/' a General Partner
_. 2 (
Date 2+- L/ z7
HUGHES NORTH COUNTY ASSOCIATES 11, a California General Partnership, By HUGHES INVESTMENTS, a California
General Partnership, a General Partner,
BY
A
W&Wfltlghes;-JT: / 63"- 'if-&dW A. pL2<,
a General Partner Date G-2J-6")
W m AGREEMENT OF COOPERATION
REGARD I NG
RISK OF FLOODING OF BUENA VISTA CREEK Page 7
APPROVED AS TO FORM;
Cl.ty Attorn
ATTEST:
ALETHA L. RAUTENKRANZ
City Clerk, Carlsbad
APPROVED AS TO FORM:
$h.hs Lddr C ARLES REVLETT City Attorney, Oceanside
ATTEST:
"
! /,
City Clerk, Oceanside
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April 21, 1987
EXHIBIT B
BUENA VISTA CREEK CHANNEL MAINTENANCE
Scope of Work:
1. Hughes shall proceed on a one-time basis to engage qualified contractor to dredge that portion of the Buen Vista Creek Channel identified as Portion "A" on Item attached hereto, which extends from the Jefferson Stree bridge on the western property line of the Hughes propert
for a distance of approximately 1450' east to the Hughe eastern property line. The dredging shall be done so as t re-establish a relatively constant grade from the presen elevation of the channel bed at Hughes' eastern property lin.
to the easternmost edge of the upper surface of the concrete apron forming the bed of the Creek at the Jefferson Streel Bridge. The dredging operation will consist of removinc cattails, bulrushes, silt and all foreign material depositec in the Buena Vista Creek Channel. Notwithstanding thc foregoing, the total dredging operation shall consist of removing such material from only the northernmost 70% of the channel width while preserving plants on the remainin5 southerly 30% of the channel's width.
2. Subject to the approval of Plaza Camino Real, Hughes mal
also proceed on a one-time basis to engage a qualified contractor. to dredge that contiguous triangular portion of the Buena Vista Creek Channel identified as Portion 'IB" on Item I attached hereto, if, in the judgment of Hughes, such
dredging is necessary or desirable for the convenience of the
contractor in completing the Work described above in Paragraph 1 of this Exhibit B. Said optional dredging, if any, shall be done in the same manner and in accordance with the standards set forth with respect to Portion "A1' in Paragraph 1 of this'Exhibit B.
3. The contractor shall be responsible for applying for all permits to complete the Work. This work shall also include the timely disposal of all spoils removed from the Channel by the contractor, allowing sufficient time for adequate drying
of material prior .to disposal, with prior approval of the
City of Carlsbad as to the disposal location, truck routes to be used and any traffic control needed to complete the work.
A final inspection of the work described above in Paragraphs
1 and 2, if any, shall be made and all work shall be promptly inspected and approved by the Director of the City of
Carlsbad, Utilities &I Maintenance Department.
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