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HomeMy WebLinkAbout1979-12-18; City Council; Resolution 60001 2 3 4 5 6 7 a 9 10 11 12 D a k 0 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 6000 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING P! AGREEMENT BETWEEN THE CITY OF CARLSBAD AND LAKE CALAVERA HILLS ASSOCIATES FOR CONSTRUCTION OF A 1.2 MGD CAPACITY SEWAGE TREATMENT AND WASTEWATER RECLAMATION FACILITY AND NECESSARY APPURTENANCES AND TO PROVIDE FOR THE FINANC- ING AND REIMBURSEMENT FOR COSTS OF OVERSIZING THEREOF, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. The City Council of the City of Carlsbad, California, does hereby resolve as follows: 1. That that certain agreement between the City of Carlsbad and Lake Calavera Hills Associates for construction of a 1.2 million gallon per day capacity Sewage Treatment and Wastewater Reclamation Facility and necessary appurtenances and to provde for the financing and reimbursement for costs of oversizing thereof,a copy of which is attach,ed hereto marked Exhibit A and made a part hereof, is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 18th day of December , 1979 - by the following vote, to wit: AYES: Councilmen Packard, Skotnicki, Anear, Lewis and Councilwoman Casler NOES: None ATTEST: I A &, / f6Ab ALETHA L. RaUTENhRANZ, City C AGREEMENT BETWEEN CITY OF CARLSBAD, FOR CONSTRUCTION OF A 1.2 NILLION GALLON CAPACITY SEWAGE TREATMENT AND WASTEWATER RECLAMATION FACILITY AND NECESSARY APPURTENANCES AND TO PROVIDE FOR THE FINANCING AND REIMBURSEMENT FOR COSTS OF OVERSIZING THEREOF. CALIFORNIA AND LAKE CALAVERA HILLS ASSOCIATES n e TABLE OF CONTENTS Section RECITALS Page 1 4 1. DEFINITIONS 2. DEVELOPER'S OBLIGATIONS A. Construct 5 6 B. Percolation tests C. Dedications 7 7 8 9 D. Warranty E. Acquisition of rights-of-way F. Permits G. Inspections H. Compliance with laws I. J. Compliance with the precise development plan Other responsibilities prior to acceptance 3. DEVELOPER'S RIGHTS A. Reserve capacity B. Reimbursement 4. CITY'S OBLIGATIONS AND RIGHTS A. Set and collect fees B. Acceptance C. Inspection D. Cooperaticn 5. RESERVATION 01 CAPACITY A. Reservation for Developer B. Developer subject to growth limitations 9 9 9 10 .. ..~. 10 11 11 11 12 12 12 13 i. , Page 13 6, 7. C. Discretionary approvals and building permits PHASING A, Permitted 14 14 15 B. Phase I C. Phase I1 D, Discretionary approvals and building permits 15 RE 1MBURSEMEP;IT ~\ 15 16 16 16 17 A, Calculation of amount A.1 Calculation if project built in phases B, Definition of cost B.L dost estimate B.2 B.3 Cost limitation 3.4 Actual cost to build the project 17 .I on Developer 18 Risk of development prior to approval C. Cost monitoring 18 D. Collection of reimbursement fee 18 E. Calculation of amount of fee 3.8 19 19 20 20 F. Switchovers G. H, Waiver of reimbursement fee I, Article XIIIA risk Delivery of fees collected to Developer 21 J. Claim or dispute K. Service and facility fee 21 4 Section 8, 9. Page __1 GENERAL CONSTRUCTION A, Preparation of plans and specification-- change orders 22 22 22 23 B. Right to approve contractor C, Right to approve equipment D. Developer to maintain insurance MISCELLANEOUS PROVISIONS A. B. C. D. E. F, G. H. I J. K. L. M. N. 0. P. Q. R. Indemnity of City Developer not agent of City Records Payments on notices Successors and assigns Arbitration of disputes Notice of taxable possessory interest Antitrust claims of Developer or Successors Venue Modification Attorneys fees Right of City to inspect Integrated agreement Section headings and interpretation Approval by City Risk of loss Participation in future works Amendment or' Precise Development Plan 23 24 24 24 25 26 27 27 28 .- . .... 28 28 29 30 30 30 31 31 31 iii. \ t 0 AGREEKENT BETWEEN CITY OF CARLSBAD, CALIFORNIA AND LAKE CALAVERA HILLS ASSOCIATES FOR CONSTRUCTION OF A 1.2 MILLION GALLON CAPACITY SEWAGE TREATMENT AND WASTEWATER RECLAMATION FACILITY AND NECESSARY APPURTENANCES AND TO PROVIDE FOR THE FINANCING AND REIMBURSEBENT FOR COSTS OF OVERSIZING THEREOF. This agreement is made this day of cEmA€ R. I 19 I? by and between the City of Garlsbad, California, a municipal corporation (hereinafter called "City") and Lake Calavera Hills Associates, a California partnership (hereinafter called "Developer"). RE C I TAL S: A. Developer wishes to develop for residential and other purposes certain parcels of property described in the Lake Calavera Hills Master Plan (MP-150 (A) ) as approved by the City Council in Ordinance No, 9571, on file with the City and incorpor- I- ated by reference (hereinafter called "Calavera Hills") , h B. Developer wishes to comply with and satisfy requirements of City for provision of sewer service to Calavera Hills by constructing and dedicating to City a satellite sewage treatment and wastewater reclamation facility. C, The public facilities element of City's General Plan requires, among other things, that sewage treatment capacity be available before development occurs, exists with capacity to service Calavera Hills. Presently no sewer facility If sufficient sewer capacity is not available for proposed development, the required finding of consistency with the City's General Plan cannot be made and development cannot proceed. Construction of -1- 0 b \ > 4 this satellite sewage treatment and wastewater reclamation facility would satisfy the requirements of the General Plan for provision of sewage capacity concurrent with need for the development, In addition Chapters 18.05 and 21.49 of the Carlsbad Kunicipal Code prohibit development unless sewage treatment capacity is available. D. To ensure the health, safety and welfare of the citizens of Carlsbad it is necessary that the satellite sewage treatment and wastewater reclamation facility built by Developer be of sufficient capacity to provide sewage treatment service to development other than Calavera Hills. E. A portion of the capacity of the sewage treatment and wastewater reclamation facility to be constructed by Developer will be used by Calavera Hills. used by development other than Calavera Hills. The remainder of the capacity will be F. Developer desires to be reimbursed for sums expended to oversize the sewage treatment and wastewater reclamation facility to serve development other than Calavera Hills. The City has determined that the public interest is served by construction of the satellite sewage treatment and wastewater reclamation facility by Developer. The public interest is further served by reimbursement to the Developer by those who will use the plant other than Calavera Hills of the costs of oversizing. However,Developer recognizes, that because of factors yet unknown, there is no assurance he will receive the full amount of the reimbursement or even any portion thereof. G. Developer desires to have reserved for Calavera Hills -2- 6 t * *. \. * ' certain rights to utilize capacity in the sewage treatment facility without payment of a sewer connection fee for plant capacity. Without such reservation of capacity, Developer would not enter into this agreement. recognize that City ha5 an obligation to serve the best interest and meet the needs of all residents, present and However, both City and DeveloGer future, in the City. to capacity must be subject to the City's obligation to all Developer recognizes that its rights City's residents. Therefore, Developer's rights to reserved capacity in the plant will be limited to a proportionate share based on a ratio of projected development in Calavera Hills to projected development in the entire area to be served by the plant. by Sections 3 and 5 herein. Reserved capacity rights are established - H. Developer recognizes that utilization of capacity in the sewage treatment and wastewater reclamation facility shall be subject to all existing or future planning, zoning, building or other ordinances which the City Council in its discretion imposes to regulate the location, quality, quantity, pace or other aspects of development on a city wide basis, I. By Resolution No. 5871 the City Council, of City, approved a Precise Development Plan for the development of the sewage treatment facility and all necessary appurtenances. Resolution No. 5871 is on file with the City and is incorporated herein by reference. that resolution. the Precise Development Plan, as adopted by Resolution No. 5871 This agreement implements Subject to the provisions of Section 9.R., -3- 2v .7 '' shall prevail over any inconsistent provisions of this ri agreement. NOW, THEmFOREr in consideration of the recitals, and of the mutua1 obligations of the parties established by this agreement, City and Developer agree as follows: SECTION 1: DEFINITIONS Whenever the following terms occur in this agreement, the meaning shall be interpreted as follows unless the context in which the term is used clearly requires a different interpretation: A. "Acceptance": A formal action by the City accepting any offer of dedication of the sewage treatment facility. Acceptance may.be of the entire project or of Phase 1 and Phase I1 of the project, respectively, as provided herein. Acceptance shall not constitute a waiver of defects by City, B. "Board" : The Regional Water Quality Control Board - with jurisdiction over the project, C. "Drainage basin: Drainage basin shall mean all areas described on the map contained in Exhibit A, attached hereto and incorporated by reference herein. D. "EDU": - EDU is an abbreviation of Equivalent Dwelling Unit and is an approximation of that amount of sewage which is discharged daily by an average residential dwelling, Actual structures or developments built or proposed are assigned an EDU value by the City Engineer. The number of average daily gallons per EDU as used in this agreement shall be updated annually and adjusted to reflect actual metered flow exper- ienced during the previous years in the subject area provided, g- Ij 1- -4- . e -7 i- ' however, that such adjustment may take into account the system, weather and any other factors which may condition of affect flow, E. "Fail-safe Line": Fail-safe line means any effluent or excess effluent disposal line which would carry effluent from the project to the ocean outfall. F. "Master Plan Area or Calavera Hills": Master plan area or Calavera Hills shall include all areas defined in the Lake Calavera Hills Master Plan (MP-l50(A)) on file with the City and incorporated by reference herein and shown for convenience on Exhibit B, attached hereto and incorporated by reference herein, \ G. "MGD": - Plant capacity expressed in millions of gallons per day. H. "Project" : The 1.2 MGD capacity satellite sewage treatment and wastewater reclamation facility and necessary appur- .I tenances, including a fail-safe line, designed and constructed by Developer and approved by City in conformance with this agreement. Project includes all facilities necessary to collect, treat and dispose of 1.2 MGD of sewage, and to reclaim water from the treatment of 1.2 MGD of sewage. I. "Work": Any and all obligations, duties and respon- sibilities necessary to the successful completion of the project assigned to or undertaken by Developer pursuant to this agreement, including but not limited to a11 labor, materials, equipment and other incidentals 2nd the furnishing thereof. SECTION 2: DEVELOPER'S OBLIGATIONS A. Construct: Developer agrees to construct at Developer's sole cost and expense the project in full conformance with plans and speci- fications which are to be prepared by Developer and submitted to City's -5- PLblic Works Administrator for approval. Work, except for grading approved by the Public Works Administrator, may not commence until i the plans and specifications are approved. Developer shall be solely responsible for completing all phases of design and construc- tion of the project. Developer shall bear all design and construc- tion costs associated with building the project, including but not limited to all professional fees, applicable permit fees, taxes or other assessments, and all labor and material costs of the project. All design, contract awards and construction contracts shall be acted upon by City within thirty days after receipt of the complete plans and specifications and contract documents for the project to ensure their conformity with the Precise Development Plan, the provisions of this agreement and any applicable state or local laws. Developer shall submit the plans and specifications and contract documents in a complete and approvable form. Except as otherwise provided in Section 6 herein construction of the project shall be completed in one phase. rights are established more fully in Section 8 of this agreement. Construction obligations and €3, Percolation tests: Developer shall conduct tests necessary to determine if sufficient capacity exists in either the Buena Vista recharge basin or the Agua Hedionda recharge basin to provide for reclamation. These tests shall include, but not be limited to, tests necessary to establish sufficient dynamic and static caTacity in the aquifer(s) for 90 day storage, or such lesser capacity as iaay be required by the Board for reclamation of water froin the project. Developer shall also conduct tests necessary to provide the Board with sufficient data to make the -6- necessary findings revise existing groundw objectives in -Y \ \ 'each affected basin to the extent that demineralization of treated effluent would not be required before use of the effluent for Type I irrigation. required in any event, Developer's obligation to conduct tests regarding revision of the groundwater objectives shall cease. Such tests shall be initiated immediately upon the execution of If the Board determines demineralization will be this agreement and shall be completed prior to commencing con- struction of the project unless the City Manager, in writing, extends such period or decides no Eurther tests are necessary. Upon the completion of such tests, Developer shall submit the test results and accompanying data to the City's Public Korks Adminis- trator for review and verification, for any additional testing required by the Board for approval of Developer shall be responsible the project, I._ C. Dedication: Upon full and satisfactory completion of the project, in conformity with the approved plans and specifications, and the itens specified in Paragraphs I and J of this section, Developer shall offer to dedicate the project to City. offer of dedication is accepted by City, Developer shall immediately transfer all rights, title and interest in the project free and clear of all liens and encumbrances whatsoever to City. any offer of dedication, Developer shall secure all approvals, If this Prior to certifications or permits required by the State fCegional Water Quality Control Board or any federal, state or local law, D. Warranty: Developer shall fully guarantee or warranty all work for a perioci of one year from the date of final acceptance by City. and a final inspection prior to the expiration of the warranty. City shall conduct periodic inspections of the project -7- 7' If within said period any structure or part of any structure furnished or installed or constructed, or caused to be installed si or constructed by Developer, or any of the work done under this agreement, fails to fulfill any of the requirements of this agreement or the plans and specifications referred to herein, Developer shall without delay and without any cost to City, repair or replace or reconstruct any defective or otherwise 8 unsatisfactory part or parts of the work or structure. will be notified in writing of any deficiencies which must be Developer corrected but failure on the part of City to notify Developer shall not affect any of City's rights under this provision, Developer shall commence repair of any defect or deficiency The repairs within ten working days after notification by City. "-- shall be completed expediently and within a reasonable period of time. If the Developer fails to commence or complete repairs within these time limits, City may undertake and is hereby authorized by Developer to make, at City's option, the repairs itself and assess the costs to the Developer. Repairspursuant to this warranty shall be at the cost of the Developer and no reimbursement shall be given therefor. require reports or replacements to be made before Developer can be notified, City may, at its option, make the necessary repairs Should the exigencies of the case or replacements or perform the necessary work and assess the costs of sach repairs to Developer. Costs assessed may be retained by City from any reimbursement collected and due to Developer. E. Acquisition of rights-of-way: Developer shall be -8- i t * ' responsible for acquisition of any land, rights-of-way, or other k interests in property necessary for required testing or for the construction of the project. City shall participate in such acqui- sition to the extent specified in the Precise Development Plan. F. Permits: Developer shall not commence work, except for grading approved by the Public Works Administrator, under this agreement until Developer has obtained the necessary permits and made the necessary deposits as may be required by a federal, state, or local law. Necessary perrhits include but are not limited to building permits, discharge permits or any other discretionary or mandatory government approval. If the City Council decides that the project may be built in phases, Developer shall submit appli- cations for permits to the Board for each phase concurrently. G. Inspections: Developer shall provide for all required inspections as provided herein, in the actual project cost. Inspection costs shall be included H. Compliance with laws: Developer shall comply with all applicable federal, state or local laws in the execution of this agreement. Developer shall also comply with all orders, regulations and requirements of the State Regional Water Quality Control Board or any other federal, state or local agency with jurisdiction over the project. I. Compliance with the Precise Development Plan: In execution of its obligations under this agreement, Developer shall comply with all conditions of the Precise Development Plan as adopted by the City Council of City in Resolution No, 5871 9- -b and with any amendments thereto, with the Lake Calavera Hills Master Plan (MP-105 (A)) and with the City of Carlsbad a Environmental Impact Report and Facilities Plan for a satellite Sewage Treatment and Wastewater Reclamation Facility as certified by the City Council, a copy of which is on file with the City. J. Other responsibilities prior to acceptance: Until such time as all work required by this agreement is fully completed and accepted by City, Developer will be responsible for the care, maintenance of and any damage to such work, Developer shall give good and adequate warning to the traveling public of each and every dangerous condition existent in said work, and will protect the traveling public from such defective or dangerous conditions. ".. SECTION 3: DEVELOPER'S RIGHTS A. Reserve capacity: Consistent with the provisions of Section 5 herein, City shall reserve for the sole and exclusive use of Developer 41.77 percent of the sewage treatment capacity in the project as approved by the State Regional Water Quality Control Board, provided, however, that nothing in this agreement shall exempt Developer from any local building or zoning ordinances. Developer's capacity rights may be adjusted by mutual agreement of the parties to conform with the latest growth projections for the basin and City's most recent gallon requirement per equivalent dwelling unit as calculated based on the average daily dry weather flow. Such agreement shall not be unreasonably withheld, -10- * B. Reimbursement: Developer shall have the right to reimbursement for the cost of oversizing the project as provided in Section 7 herein. at which time it will cease whether or not Developer has been reimbursed for the cost of oversizing. This right shall continue for twenty years SECTION 4: CITY'S OBLIGATIONS AND RIGHTS A. Set and collect fees: City agrees to collect a sewer connection fee from any person or development other than Calavera Hills connecting to or using capacity of the project as provided in Section 7 herein. - B. Acceptance: Upon offer of dedication; receipt of inspector's certificate; receipt of any approvals, certificates or permits required by the State Regional Water Quality Control Board or any federal, state or local law; and warranty or guarantee .I as provided in Section 2.D of this agreement, City shall consider acceptance of project from Developer. of dedication within 60 days of tender of all items required by this paragraph. City shall not unreasonably withhold acceptance. Prior to acceptance City may require Developer to repairc correct or reconstruct any defect in the project or any work not in City shall act on the offer conformity with the approved plans and specifications or as required for final certification by the Regional Water Quality Control 3oard. or reconstruction required by City at Developer's own cost and expense and shall receive no reimbursement for any portion thereof. City's obligations and rights under this section are contingent upon the construction of the sewer plant in conformance with the Developer shall then make any repair, correction -11- plans and specifid)ions to the satisfaction. the City and upon % . * approval and certification of the plant by the State Regional c Water Quality Control Board or any other federal, state or local agency with jurisdiction to approve, permit or certify the plant. Acceptance may be made in two phases as provided in Section 6 herein. C. Inspection: City may provide a project inspector or qualified operator to act as inspector of the project. City shall have the right to conduct periodic inspections during construction and prior to its acceptance of the plant. Developer shall allow access to the plant and all premises whereon construction is occurring for the purpose of these inspections. The inspections defined in this section are in addition to any other required inspections, D. Cooperation; City agrees not to unreasonably withhold any necessary local permits required by Developer for the project or any part thereof. City also agrees to use its best efforts""t0 assist Developer in obtaining any certification, approval or permit required by this agreement; in establishing a reasonably feasible and economic alignment for the fail-safe line utilizing, when feasible, existing public rights-of-way; and in obtaining, main- taining, preserving or confirming connection rights to the ocean outfall sufficient to dispose of the full treatment capacity of the project . SECTION 5: RESERVATION OF CAPACITY A. fieservation for Developer: Upon acceptance of this sewage treatment and wastewater reclamation facility, all rights to sewer capacity snall vest in City. City shall reserve for the sole and exclusive xse of Developer 41.77 percent of whatever capacity is approved by the State Regional Water Quality Control -12- 3. . \* Board. City may allocate such capacity consistently with Section 6 of this agreement. Capacity reserved for Developer shall not be used for any development other than Calavera Hills. Developer shall, however, be subject to the provisions of Section 5.B. of this agreement. B. Developer subject to growth limitations: Developer shall be subject to any existing or future zoning, building or other laws established or adopted by City to regulate the location, quality, quantity, pace or other aspects of development in City. Developer shall also be subject to all General Plan requirements of the City including any proposals adopted to implement any element of the General'Plan and to the Lake Calavera Hills Master Plan conditions. C. Discretionary approvals and building permits: Discretiona x approvals for Calavera Hills and the issuance of building permits for structures to be served by the project shall be governed by any existing or future City ordinances regarding the issuance of such approvals or permits. structed pursuant to building pemits issued as authorized by this Developer agrees that no structures con- section, or no individual lots created by discretionary approvals, if any, shall be transferred or conveyed in any r@-anner, including but not limited to sale or lease, or occupied until the project has been certified as operable by the Regional Water Quality Control Board and accepted by the City. Developer may transfer or convey that land described in approved Tentative Nap No. CT 76-12, as approved by the City Council in If a final map is approved, -13- ’ Resolution No. 5145, to a single transferee, provided that such land 4 and transferee shall be subject to Sections 6.D and 9.E of this agreement. SECTION 6: PHASING A. Permitted: If it appears to the satisfaction of the City Council that Board action on the application for the water reclama- tion system will occur after certification of the treatment and disposal system, the project may be accepted in no more than two phases as provided in this section. B. Phase I: Phase I shall consist of the following items: 1. Construction of the proposed sewage treatment and wastewater reclamation facility as substantially shown on Precise Development Plan Exhibits G (except for that portion describing the water reclamation system), A-1, B, D and F-4 of Resolution No. 5871 of the City Council of the City of Carlsbad as may*’be amended, of sufficient capacity to fully treat 1.2 MGD of sewage, including but not limited to the complete treatment plant, force mains, mechanical fail-safe protection, excess effluent disposal pipeline with pumps and other appurtenance necessary to connect to and dispose of 1.2 MGD of sewage through the ocean outfall b€ the Encina Water Pollution Control Facility, and any other appurtenance necessary for operation of the plant; 2. Construction of the reversible force main as specified in Condition No. 4 of the Precise Development Plan; 3. Acquisition of the easement to Tamarack Avenue as described in Condition No. 11 of the Precise Development Plan; -14- 4 4. Certification by the State Regional Water Quality Control Board of the plant with discharge rights of at least 1.2 MGD of secondarily treated effluent to the ocean outfall. C. PHASE 11: Phase I1 shall consist of the reclamation system as described in Exhibit G of the Precise Development Plan as approved by Resolution No. 5871 of the City Council or any sub- sequent amendments thereto, or as required by the Board. project is built in phases, construction on Phase I1 shall be completed not later than two years after City acceptance of Phase I and its certification as operable by the State Regional Water Quality Control Board, unless such time is extended by If the the City Council on a showing of good cause. D. Discretionary approvals and building permits: Subject to the limitations of Section 5.C. of this agreement, if the project is built in phases, discretionary approvals may be processed except that no building permits may be issued until Phase I is certified by the Board and accepted by the City, valid sewer permits have been issued and Developer has provided City with a surety bond, instrument of credit, or other security in favor of City and acceptable to City guaranteeing the Developer's performance of obligations and completion of work on Phase 11. Such security bond shall remain in effect until the certification of Phase XI by the Board and acceptance of Phase I1 by City. SECTION 7: XEIMBURSEMENT A. Calculation of Amount: City agrees to collect a fee as provided in this section so that Developer may be reimbursed -15- \ 'for certain costs of oversizing the project; that is, the actual cost to build Phase I of the project, minus the estimated cost to build a sewage treatment facility and all necessary appurtenances including a fail-safe line of capacity sufficient to serve the projected total build out of Lake Calavera Hills alone as if no other project were being built, plus 58.23 percent of the actual cost to build Phase 11, regardless of whether the project is built in phases. City and Developer agree \ that, for the purposes of this section, a project of capacity to treat and dispose of -5 MGD of sewage is deemed sufficient to serve Lake Calavera Hills alone. A.l Calculation if project built in phases: If the project is built and accepted in phases, the reimbursement amount for the period after completion and acceptance of Phase I, but before completion and acceptance of Phase 11, shall be equal to the actual cost to build Phase I, minus the estimated cost to build a K sewage treatment facility and all the necessary appurtenances of capacity sufficient to serve the projected total build out of Lake Calavera Hills alone, plus 58.23 percent of the estimated cost to build Phase 11. B. Definition of cost: B.1. Cost Estimate. No later than the time of submission of the plans and specifications, Developer shall submit a detailed itemized cost estimate for the project and a detailed itemized cost estimate for a sewage treatment facility and all necessary appur- tenances including a fail-safe line, of capacity sufficient to serve the projected total build out of Calavera Hills alone as if no other project were being built. If the project is to be 4 -36- e oonstructed in phases, Developer shall also a detailed '' itemized cost estimate of the construction of each phase of the City shall act upon the cost estimates no later than project. thirty days after submission of such estimates in a complete and approvable form. Upon approval of such estimates by the City, they shall be attached to this agreement as Exhibit C and shall become a part hereof. Developer, at its option, may terminate this ageement if it does not agree with City's determination under this section. B.2. Actual cost to build the project. Actual cost to build the project, or either phase thereof, shall mean the sum total dollar cost of actual expenditures for construction of the project, including but not limited to labor , materials, plan checking, engineering, surveying, design, interest during the construction period of the project on borrowed funds necessary for the actual construction of the project, fees for applicable permits, costs attributable to land, right-of-way or other interests in real "..' property necessary for the project not to exceed the fair market value at the time of acquisition or acceptance of the project, whichever is less, and other costs necessary for the construction of the project in a good workmanlike manner in accordance with the plans and specifications, but not including any preliminary reports, studies, attorney's fees or other such charges. Actual cost to build the project shall be documented to the satisfaction of the City and shall be approved by the City Council. B.3. Cost limitation. The actual cost to build the project and the actual cost to build Phase I or Phase I1 shall not exceed the estimates as approved pursuant to Section 7.B.1. above. Any difference between actual costs and the estimates shall be absorbed by Developer and shall be disregarded for purposes of -17- % determining reimbursement. B.4. Risk of development prior to approval on Developer. City shall have no obligation to reimburse Developer until the cost estimates required by Section 7.B.l are approved by City. Developer shall bear the full risk of any loss occasioned to Developer because it commenced construction prior to approval of the estimates. Developer shall receive no reimbursement and shall have no recourse against the City for any loss occasioned to Developer because the estimates were not approved or the agreement was otherwise terminated by Developer prior to completion and acceptance of the project by the City. C, Cost monitoring: In addition to the rights stated elsewhere in this agreement, City shall have the right to monitor all costs for the project. Developer shall provide City with all receipts, invoices, bills or other information requested by City to aid in the cost monitoring. D. Collection of reimbursement fee: City agrees to collect a fee for each connection to the plant other than Calavera Hills as a condition of permitting connection to the sewer plant, subject to the limitations provided below. Subsection K of this section, no sewer connection fee shall be Except as provided in charged to units in Calavera Hills. reimbursement except from the collection of these fees. Developer shall receive no E. Calculation of amount of fee: City shall set the fee by dividing the amount to be reimbursed as determined by Subsection A or' this section by the total projected number of units which will use capaci,ty in the plant other than Calavera -18- . L Hills. units, other than Calavera Hills, which will use capacity in the City and Developer agree that the projected number of project is 3,645 EDU's. necessary to accommodate changes in City's land use policies. Developer may request City to take the action necessary to revise the reimbursement fee if the figure is significantly reduced, Upon This figure may be adjusted by City as such request, City may, in the reasonable exercise of its discretion, adjust the fee or not adjust the fee. units is based on calculations shown in Exhibit D of this agreement. This projected number of F, Switchovers: Notwithstanding Subsection D of this section, City may connect units presently serviced by the Encina Sewage Treat- ment Plant to the project without obligation to collect a reimburse- ment fee. However, upon allocation to new construction in the City of capacity in Encina which became available from a switchover <, connection, City agrees to collect a fee as provided in this section as a condition of such allocation. G, Delivery of fees collected to Developer: City shall periodically deliver to Developer as reimbursement 95 percent of their reimbursement fees collected as they are from time to time collected. City will retain 5 percent of the amount collected as compensation for the expense of administration of this agreement. If the project is built in two phases, City shall deliver to Developer only that amount attributable to Phase I. Amounts attributable to Phase I1 shall be retained by City until the completion and acceptance of Phase I1 at which time the retained funds shall be paid over to -19- 't ;Developer. If Phase I1 is not completed within the time stated in Section 6 of this agreement, or any extension pursuant thereto, the funds retained shall become the property of the City and any right, title or interest Developer may have in those funds shall cease. Phase I1 or if such application is deemed by the City Council to be not feasible, the funds shall be deposited in the Joint Sewer Such funds shall be applied by City to completion of Construction Fund. H. Waiver of reimbursement fee: Developer may waive reimbursement for any unit using capacity in the plant. waiver shall be made by letter to the City. Such No reimbursement fee shall be collected on connections for which a waiver has been made. I. Article XIIIA risk: Developer recognizes that the -. City's right to collect fees and its right to reimbursement from those fees may be subject to the provisions of Article XIIIA of the California Constitution. If it is determined by a court of competent jurisdiction that the fees levied pursuant to this agreement or other fees of similar charac- teristics are subject to Article XIIIA of the California Constitution, City and Developer shall in coordination use their best efforts to provide for collection of the fee in conformance with Article XIIIA. If it is determined that fees cannot be collected under this agreement because of the provisions of Article XIIIA, Developer shall receive no other compensation ar reimbursement hereunder. Any attorney fees or other costs expended in the determination of whether -20- , I 'the fees are governed by the provisions of Article XIIfA shall not be reimbursed to Developer. J. Claim or dispute: In the event of a claim or a dispute over the City's rights to collect the reimbursement charge hereby established, or to withhold the water or sewer service to any property pending receipt of said reimbursement charge, Developer shall have the option to (1) waive such reimbursement charge or (2) assume all obligations and liability and hold City harmless from any loss, cost or expense, including judgments and attorneys' fees arising from the City's attempt to collect said disputed charges. City agrees to use due diligence to preserve and maintain Developer's reimbursement benefits and exercise good faith with respect to Developer's Y interest in the event of a dispute. If it is determined by "j" a court of competent jurisdiction that the disputed claim or charge shall not be paid, then Developer shall not receive reimbursement therefor and any amounts paid to Developer on account of collection of the disputed fee shall be refunded to City. , K. Service and facility fee: City reserves the right to levy a fee on each connection to the plant in an amount sufficient to pay for the cost of any capital improvement including, but not limited to sewers, drains, pumps or other appurtenances necessary to provide sewer service. Such fee shall be in addition to any reimbursement fee, but may be levied at the sane time. City may also levy a periodic -21- - seGvice charge on each connection to the plant to pay for costs of continued service, maintenance and operation. Developer or his successors or assigns shall pay upon c connection to the plant the fees or charges described in this paragraph, but shall not pay a reimbursement fee, unless the number of units connected to the plant results in utilization of capacity in excess of 41.77 percent of the total plant capacity. SECTION 8: GENERAL CONSTRUCTION A. Preparation of plans and specification--change orders: Developer shall prepare at Developer's cost and expense all plans and specifications necessary for construction of the project. Said plans and specifications shall be approved by City's Public Works Administrator prior to the commencement of any work on the project except for grading approved by the Public Works Administrator. City shall act within thirty days after submission of completed plans and specifications. shall be done in conformance with the approved plans and specifications, unless prior written authorization from the All work City's Public Florks Administrator is secured by Developer. B. Right to approve contractor: City shall have the right to approve all contractors or subcontractors performing any work on the project. days after submission. Administrator shall be deemed approval of the City. City shall act within ten working Written approval of the Public Works C. Right to approve equipment: City shall have the right to approve all equipment, material, or goods used in construction af the project. City shall act within ten -22- . :working days after submission of the final plans and specifi- cations. shall be deemed approval of the City. Written approval of the Public Works Administrator D. Developer to maintain.insurance: Developer or its contractors shall maintain in force during the full period of construction pursuant to this agreement a full comprehensive public liability and property damage insurance policy insuring against any and all claims for injuries or death of persons or damage to property occurring in, upon, or about the property subject to this agreement. The proposed insurance contract shall be submitted to City for its approval prior to initiation of insurance covera.ge. The insurance contract shall have limits of not less than $1,000,000.00 single limit coverage and City shall be listed as an additional named insured. Prior to commencement of actual construction, Developer shall submit a certificate of the insurance to City which shall provide for -I at least forty-five days notice of cancellation or modification of coverage or limits. Developer or its contractors shall - also maintain any bonds or insurance required by law, including Worker's Compensation, and City shall be listed as an additional c named insured. SECTION 9: IJlI SCELLANEOUS PROVISIONS . A. Indemnity of City: Developer shall indenmify, assume the defense of, and hold free and harmless, City, its officers, agents, employees and any engineer, architect or other consultant utilized by City on the project from any and all obligations, -23- . . liabilities, liens, claims, demands, losses, damages and expenses, of whatever type or nature, including, but not limited to, attorneys'. fees and all litigation costs arising out of Developer's design or construction of the proposed facilities or any other act or omission to act by Developer, its agents, servants, employees, invitees, or independent contractors which are required by this agreement. Notwithstanding the foregoing, the indemnity agreement created by this section shall not indemnify the City, its officers, agents or employees against any liability arising from the negligence or willful misconduct of City, its officers, directors, agents, employees or independent contractors. B. Developer not agent of City: Neither Developer nor any of Developer's agents or contractors are or shall be :, considered to be agents of City in connection with the per- formance of Developer's obligations under this agreement. C. Records: City will maintain complete records of all connection fees received. Such records shall be open to Developer upon reasonable notice to City. D, Payments on notices: All notices, demands and requests, which may be or are required to be given or made by either party to the other party, shall be in writing. All notices, dernands and requests by Developer to City shall be sent by United States registered mail, postage prepaid, addressed to City as follows: -24- City Manager City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 All notices, demands, requests and payments by City to Developer shall be sent by United States registered mail, postage prepaid, addressed to Developer as follows : Lake Calavera Hills Associates 3088 Pi0 Pic0 Avenue, Suite D Carlsbad, California 92008 Attn : Roy J. Ward or to such other addressee and to such other place as Developer may from time to time designate in written notice to City. E. Successors and assigns: The covenants and agreements contained in this agreement will be binding upon and inure to the benefit of City and its successors and assigns, and Developer and its successors and assigns; provided, however, Developer shall not conveyp assign or otherwise transfer its rights or obligations hereunder without the prior written consent of the City. Developer shall not assign the right to receive reimburse- ment pursuant to the provisions of this agreement without prior written approval of City. City reserves the right to limit the assignments so as not to be required to make payments to multiple assignees under circumstances which may create. an administrative burden for City. Developer may grant a security interest in or pledge the rights of Developer to receive reirrbursexient hereunder to institutional lenders for the purpose of securing obligations of Developer to such lenders. -25- .. If prior to the completion of the project Developer conveys any land located within Calavera Hills to any person, such conveyance shall expressly include a provision that the grantee shall assume a proportionate share of Developer's obligations under this agreement. grant. Said provision shall be approved by City prior to the This agreement shall be recorded in the County Recorders Office and a notation of the fact of this agreement and its restrictions shall be noted on any final map €or any property in Calavera Hills. F. Arbitratioq of disputes: Any controversy or claim between the parties to this agreement, including but not limited to any claims, disputes, demands, differences, contro- versies, or misunderstandings arising under, out of, or in relation to this agreement, or any alleged breach of this agree- ment, shall be submitted to and determined by arbitration in accordance with the California Arbitration provisions contained in Code of Civil Procedure Section 1280 et seq., as amended from time to time, except as to those'determinations under this agreement made in the sole discretion of the City or its Council. Subject to the provisions of Code of Civil Procedure Section 1296, the arbitrator or arbitrators shall determine the rights of the parties in accordance with the law and the award shall be subject to review as to the arbitrator's application of the law by any court having jurisdiction of the matter, whether ox not any mistake of the law shall appear upon the face of the award. As to all questions of fact, -26- > , however, the determination of the shall be binding upon all parties and conclusive. Each party shall arbitrator or arbitrators and shall be deemed final be entitled to written findings of fact and conclusions of law as to all issues determined by the award. the award granted by the arbitrator shall be binding upon all Subject to the above limitations, parties to the arbitration and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction over the matter. G. Notice of taxable possessory interest: If this agreement results in the creation of a possessory interest, and such posses.sory interest is vested in a private party in this document, the private party may be subjected to the payment of personal property taxes levied on such interest. .+ H. Antitrust claims of Developer or Successors: By entering into this agreement or any subcontract pursuant to this agreement, Developer, each contractor, and each subcontractor who performs work or who supplies goods, services or materials in accordance with the terms of this agreement, hereby offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under federal or state antitrust laws including but not limited to antitrust action any of them may have under Secrion 4 of the Clayton Act (15 U.S.C. Section 15), or under the Cartwright Act (Chapter 2, commencing with Section 16700 of Part 2 of Division 7 of the Business and -27- i , . ' Professions Code), arising from the purchases of goods, services or materials pursuant to this agreement or any related subcontract, at the time City accepts the proposed facilities and land transfer without further acknowledgment of the parties. Developer This assignment is made and becomes effective agrees to insure that a comparable provision is included in all contracts or subcontracts at all tier levels which are executed pursuant to this agreement. I. Venue: In the event of any legal or equitable proceeding to enforce the terms or conditions of this agree- ment, the parties agree that venue shall lie only in the federal or stake courts in or nearest to the North County Judicial District, County of San Diego, State of California. J. Modification: This agreenent may not be altered in whole or in part except by modification in writing, executed by both parties to this agreement. K. Attorneys' fees: In the event any arbitration proceeding, administrative proceeding or litigation in law or in equity, including any action for declaratory relief, is brought to enforce or interpret the provisions or performance of this agreement, the prevailing party or parties shall be entitled to an award of reasonable attorneys' fees and costs associated with the proceeding as determined by the court, thft presiding officer, or the arbitrator authorized to make a determination of the issues in addition to any other relief to which the prevailing party may be entitled, -28- 5 c . If either party to this agreement becomes a party to litigation, an administrative proceeding or arbitration concerning the enforcement or interpretation of the provisions of this agreement or the performance of this agreement by reason of any act or omission of the other party,its agents, employees, officers, directors, or any other representative of the other party, and not by any act or omission of the party that becomes a party to that proceeding or its authorized representatives, the party that causes the other party to became involved in the proceedings shall be liable to that party for reasonable attorneys' fees and costs of the proceeding incurred by that party. The award of reason- able attorneys' fees and all costs shall be determined as provided above. In the event opposing parties have each prevailed on :. one or more causes of action actually contested or admitted by pleadings, discovery or prehearing documents on file, the arbitrator or presiding officer may offset such fees and costs between prevailing parties after considering the necessity of the proceeding and the importance of the issue or issues upon which each party has prevailed, 3;. Right of City to inspect: Both parties to this agreement understand that City intends to approve, or inspect and approvel all phases of design and construction of the proposed facilities. Developer shall supply City with such information as City deems necessary from time to time -29- a \c in City's sole discretion to properly review all design and construction phases of the contract and to provide City with the opportunity to inspect the proposed facilities from time to time upon request. M, Integrated ag,reement: The reimbursement provisions for payments to Developer by the City (which is conditioned on City's receipt of connection fees as a source of funds for payment) is severable, Except for that severable provision, this agreement is an integrated agreement and in the event any provision of this agreement is held to be invalid, void or unenforceable for any reason so as to defeat the objectives that either party seeks to attain pursuant to this agreement, the entire agreement shall be null and void, N. Section headings and interpretation: All clauses -. I. contained in this agreement shall be interpreted in a manner which renders them valid under applicable provisions of state or federal law to the maximum feasible extent. By Resolution No. 5871 the City Council, of City, approved a Precise Development Plan for the development of the sewage treatment facility and all necessary appurtenances, The provisions of the Precise Development Plan as adopted by Resolution No. 5871, and any amend- ments to said Plan, shall prevail over any inconsistent provisions of this agreement, The headings of sections herein are used for convenience only and shall not affect the meaning or the contents thereof. 0. Approval by City: Except as otherwise expressly provided herein, approval by City shall mean written approval by the City Manager. -30- .. P. Risk of loss: Prior to acceptance of the project, the risk of loss shall be on Developer. If the project is built in phases, the risk of loss for Phase I shall pass to City after acceptance, but the risk of lass for Phase I1 shall remain on Developer until acceptance of Phase 11. Q. Participation in future works: If at any time before expiration of the warranty period detailed in Section 2.0 above, City is required by the Regional Water Quality Control Board, or any other state or federal agency, to install additional treatment works, disposal systems or reclamation facilities i in order to ensure continued certification and ability to treat dispose and reclaim up to 1.2 MGD of sewage, Developer agrees, on behalf of himself and his successors or assigns, to pay 41-77 percent of the cost of such works or systems. If such works or systems are required after such warranty period expires, Developer agrees, on behalf of himself and his successors or assigns, to not oppose an assessment district formed to finance such worksl and that City may collect a fee to finance such required works or systems levied on all units to be constructed thereafter which will be served by the plant, including units in Calavera Hills, The provisions of this section shall be in addition to any warranty or guarantee required by this agreement. R. Amendment of Precise Development Plan: The parties recognize the City is considering the amendment of the Precise Development Plan as approved by the City Council in Resolution No. 5871, because of certain proposed changes on the design of the project as reflected in this agreement. A copy of a revised Precise -31- %* b Development Plan, including Exhibit G thereof, is attached as Exhibit E of this agreement and is incorporated by reference, If approved, Developer agrees to be bound by Exhibit E, or any other amendments to the Precise Development Plan as approved in Resolution No. 5871, in the performance of any obligations or assertion of any rights under this agreement. IN WITNESS WHEREOF, the parties have executed this agreement in duplicate as of the day and year above written. ATTEST : CITY OF CARLSBAD, a municipal I_ I -3 1 corporation of the State of : 5 California ., .. B - LAKE CALAVERA HILLS ASSOCIATES, A California partnership APPROVED AS TO FORPLI: _,-- Assistant City'Attorney -32- 4’ c t .. .. .. r EXHIB1T”C” WILL CONSIST OF CERTAIN COST ESTINATES PREPARED AND APPROVED ACCORDING TO SECTION 7 OF THIS AGREEMENT. WHEN THOSE ESTIMATES ARE PROPERLY PREPARED I AND APPROVED, THEY SHALL BE ATTACHED HERE AS EXHIBIT T”. .- i .\. DATE : TO : FROM: 14EMORANDUM October 19, 1979 City Manager Planning Director Jc$- / - SUBJECT: CALAVEm HILLS SATELLITE TREATMENT PLANT - EDU PROJECTIONS Per your request, herein are the EDU projection figures that were developed by this department for use in the Calavera Hills Drain- age Basin. The land use projections have been coordinated with and accepted by the consultant for Calavera Hills. The gallonage used for an EDU was established by the Public Works Administrator, .. '\ ASSUMPTIONS: 1. Existing development will generate sewage at ah EDU rate'of 246 gpd. . 2,. New development will generate sewage at an EDU rate of 200 gpd. .. 3.' Actual build-out sh.all not exceed the projections used (see .. attached exhibits) Projected Gallons/ Total Gal/ Total Gal/ EDUs 4 Per EDU Development -.: Basin .. . Calavera Hills = 2704 X 200 = 540,800 (41.77%) Switchover Approved TM's Remainder GP 629 y 246 = 154,734 478 X 200 '= 95,600 2518 X 200 = 503,600 Total Gallons/Basin 1,294,734 (11.95%) ( 7.38%) (38.90%) , APPROVED PROJECTS POTENTIAL SWITCHOVE R Royal Homes .,.-.-.,. 68 edu's El Camino Mesa.,,,,., 68 edu's Chestnut Hills.,.,,,,lO8'edu1s Quail Ridge.,,,.,.:,,234 edu's Palisades.,,,..,,,,,,l36 edu's Tota1,.,,,..478 edu's - Woodbine..,,.,,.,,,.,l48 edu's Meadows;,,.,..,,.,,.. 90. edu's Palisades,..,,,,,,,.,119 edu's Chestnut Hills,,.,,,,l36 edu's - Tota1....,,,629 edu's .- GENERAL PLAN LAND USES IN -REHAINDER 8- ACRES MAX, EDU's LAND USE PROJECTED EDU's .I 0 (Septic) 2386 ** Tootsie K RL(0-105) Kelly Mt, 330 4 95 Robertson, Kelly, 1113" 4452 . pLM(0-4) Sunny Creek Road . 3 Elementary Schools 30 30 30 School 20 40 20 40 1 Junior High 1 High School 20 40 420 Space Open # * ** 42 42 TOTAL 2518 1360 gross acres - 247 acres undevelopable = 1113 net acres Acres x -67 (percentage of buildable land less area for streets) x 3.2 (average build-out density) = Projected EDU's * .. 0. *- . c-- 26 4 I_ - .. - 2 10 .. 4". I6 4 1 4 10 . 77 ' 30' * 15 10 10 . 10 27 . 23 .. . 36 30 24 22 10 *5 - 55 'D RD'I4-Q $0 -. c- . 300 J . -K 2,10,11 22.0 . L . M. .. c - . .' 'N CI 12 '0 C .. .. .. .. .. .. .' 49 12 . F-i . R-J.(JG) t5f .. 63 CI 12 . .. 2 c- 1 20 ' 3- C^ 5 20 46 10 . -'. 36 . . c. - R-2 o-S(CuI>) Park .- ... .. - ..- ..n 12 36 30 I2' .. c- _. 5 O-S{CW) Park 30. - . .. . c_ 20 15 9 .. .. -a '.O 2-2 22 -- c_- '. 2-3 -7- .. : a. I I .. .. .. -3 m ' '4 .* zl h 4 na .: m W -45- . . I .. .. .. - . .. VI .6 bo- 0 4.. -46- * . .. . -47- - a. 4' -. L . . . . . . . . L .. .. .. w : .d .. .t- . a- *. ._ .. I -48- . . . ., .. Exhibit E to Lake Calavera s Financing and Reimburse- Agreement LAKE CALAVERA HILLS PRECISE DEVELOPmNT PLAN REVISED CONDITIONS GENERAL 1. Development of the site shall occur substantially as shown on Exhibit "G", dated December 11, 1979, attached hereto, and as shown on Exhibits A-1, B, D and F-1, dated April 11, 1979, for the wastewater treatment plant; and Exhibits A-2 and E, dated April 11, 1979, for the percolation ponds; except for modifications and necessary back-up systems not affecting the plant's operational efficiency that are approved by the Public Works Administrator. 2. In addition to the approval of the development indicated in the exhibits noted above, all other requirements and appurtenances as listed in this approval shall be indicated on the final Precise Development Plan. TREATMENT PLANT 3, The proposed treatment plant shall be constructed in one;; phase as a 1.2 MGD capacity plant with a "fail-safe" excess effluent disposal line to the ocean outfall at the Encina Water Pollution Control Facility, and all other appurtenances necessary to operate the treatment plant at its fully rated capacity of 1.2 PlGD. 4. A reversible force main connecting the treatment facilities to the Encina line at El Camino Real shall be Constructed as part of this project. RECLAMATION 5. All wells, pumps, check dams and other appurtenances necessary to reclaim water from the recharge basin, which basin is described in Exhibit E, shall be constructed as part of this project. Plans for the water reclamation system shall be submitted to and approved by the City Engineer and by the Planning Cozmission prior to commencement of any grad- ing, cmstructioc, or the placing of any equipment for the project. 6. All effluent from the treatment plant shall be reclaimed and utilized for replacement of existing or planned potable water (Type I). The amount of sewer capacity allocated to future developments shall be limited to the amount of reclaimed water that can be guaranteed for use by the appli- cant of such development or otherwise guaranteed to the satisfaction of the City Council. . ., Revised Conditions 7. 8. 9. Page 2 All proposed users of the treatment plant shall prepare and provide a plan acceptable to the City establishing and guaranteeing a method to utilize any reclaimed water prior to any approval of their project. The reclaimed water may not be applied to native vegetation or areas where there are no existing or planned potable water uses. As a guide for determining the acreage of land necessary to utilize the reclaimed water, the ratio of gallons of water to acres of land should be as follows: 3,000 gallons to one acre of agricultural land, or 800 gallons to one acre of landscapeci'land per day. This ratio may be adjusted by the Planning Director to accommodate particular locations, soil types and plants. Any plan required by Condition No, 7 shall be submitted to the Planning Director for approval. Approval of the plan by the Planning Director shall constitute acceptance of the plan by the City. Director shall give primary consideration to systems where the land using the reclaimed water is either near the recharge basin or served by gravity flow from the water .., reclamation system, in order to conserve energy required for pumping. Approval by the City shall not constitute a claim to or a guarantee for availability of reclaimed water. This condition and Conditions 6 and 7 shall be modified as necessary to accommodate such City plan for the use of reclaimed water as the Council may adopt, In approving the plan, the Planning The applicant shall be responsible for construction of a fail-safe effluent disposal system sufficient to serve and consistent with the 1.2 MGD design capacity of the treatment plant. for construction of additional treatment as may be required to meet State and County Health Department requirements as well as those of the Regional Water Quality Control Board, and of mains, wells, pumps, check dams, and all other appurtenances necessary to reclaim water from the treatment of 1.2 MGD of sewage, The applicant shall also be responsible The applicant shall be responsible for construction and implemmtation of the complete Sewage treatment and water r.eclamation facilities, Plans for the reclamation facilities shall be approved by the Planning Commission by a conditional use permit prior to any grading, construction or placing of any equipment for the project, Construction of the project I Revised Conditions Page 3 10 0 11. shall be completed within a reasonable time as specified in the Master Reimbursement Agreement. The applicant shall be responsible for the acquisition of land, easements, or other rights necessary for the construc- tion required by this condition. In the event the applicant cannot acquire same after the exercise of due diligence, the City shall have the option of acquiring the same through its power of eminent domain, after due satisfaction of all legal requirements, including environmental review and public hearings, if required. In such event, the applicant shall be responsible for the direct expense of environmental and planning review, retention of special counsel to prosecute the condemnation action or actions, and payment of any required compensation to property owners. be reasonably certain, to the satisfaction of the City, prior to their acceptance of any portion of the plant. Any additional appurtenances necessary for reclamation, storage, or use of the plant effluent, but not included for approval in this application, shall be subject to Planning Commission review and approval. At the time of review the Planning Commission shall determine if such appurtenances will have a significant adverse effect on surrounding property. If it is determined that the appurtenances may have a signifi- cant adverse effect, a conditional use permit shall be required. Such conditional use permit shall contain conditions sufficient to mitigate any such potential significant adverse effect, Acquisition must The applicant shall be financially responsible for and shall make all reasonable efforts to acquire and provide a thirty foot wide access way from Tamarack Avenue to the treatment facility, with necessary easement rights to accommodate the reversible force main required by Condition 4 hereof. In the event applicant cannot acquire same after the exercise of due diligence, the City shall have the option to acquire the same through its power of eminent domain, after due satisfaction of all legal requirements, including environ- mental review and public hearings, if required. In such event, the applicant shall be responsible for the direct expense of environmental and planning review, retention of special counsel to prosecute the condemnation action or actions, and payment of any required compensation to property owners. Acquisition must be reasonably certain, to the satisfaction of the City, prior to any grading, construction or placing of any equipment for the project. c * .. R%vised Conditions ADMINISTRATION Page 4 12. 13. 14. 15. Upon completion of construction and such inspection and testing as required by City, the site, and all structures and appurtenances for the treatment facilities, fail-safe effluent disposal system, recharge basin as shown on approved exhibits, the thirty foot wide access way from Tamarack Avenue to the treatment facility, and a11 other appurtenances approved by and pursuant to this approval shall be offered for dedication to the City of Carlsbad, free and clear of liens and encumbrances. The applicant shall be responsible for the payment of all costs of construction of the facilities as approved, Applicant may be reimbursed for certain costs expended in construction of the treatment facility with more capacity than necessary to serve Lake Calavera Hills alone. City and applicant shall enter into a Master Reimbursement Agreement to provide for such reimbursement and to implement the requirements of this Precise Development Plan. This agreement must be completed and accepted by the City Council before any application for discretionary approval may be submitted or accepted on any project in the drainage basin, except projects already approved or in the process of acquir- ing discretionary approval. If no agreement 1s reached within one year from the date of approval of this Precise Develop- ment Plan, a11 rights and approvals provided to applicant by this plan shall terminate and this plan shall no longer have any force or effect. Upon acceptance of the treatment facility, ownership shall vest in the City, Provided, however, that applicant, in consideration of its initiation and financing of this facility, shall have reserved for it such capacity as may be provided in the Master Reimbursement Agreement. Except as provided herein, or as otherwise authorized by law, applicant shall be subject to all existing or future ordinances regarding sewer allocation, permit issuance, or acceptance or approval of applications for discretionary approvals. If the City agrees to accept the facility, access easements or other property rights necessary for operation and main- tenance of the percolation ponds, excess effluent disposal line, and necessary appurtenances which have not previously been vested in City pursuant to Conditions 9, 10 and 11 herein shall be granted to the City by applicant free and clear of liens and encnmbrances. - -- .Revised Conditions . Page 5 16. The applicant shal1,provide such easements over its own property as determined by the City Council to be necessary to accommodate sewer service and reclamation for the other properties in the drainage basin. This condition shall also be made a condition of applicant's Master Plan. 17. The applicant shall include in its master CC&R's for the entire project and in the subdivision public reports for each phase a detailed description of the facility, its proximity to dwelling units, and the potential for adverse impact. The CC&R's shall provide that the property owners and their successors in interest covenant not to object to or take any action, directly or indirectly, in opposition to the location oE the facility nor its continued operation, except to the extent that such objections and/or action in furtherance thereof relate to the negligence or willful misconduct of the persons or entities then operating the facility. 18. A condition that prohibits the use of self-regenerating water softeners shall be placed on all development permitted to use this waste water treatment facility. Hills development shall contain such prohibition in the CC&R'S, The applicant shall submit and process a parcel map creating separate lots for the treatment plant and recharge basins. The Lake Calavera u. .C 19. 20, The Lake Calavera Hills Master Plan (MP-l50(Al) shall be amended as required by the approval of the zone change and Precise Development Plan. 21, The applicant shall secure easement rights for the City prohibiting the location of any habitable building within one hundred yards from the outside edge of the service road or structure and equipment, whichever is nearer to habitable buildings as indicated on Exhibit A-1. Tentative Map 76-12 and PUD-4 shall be amended if necessary showing such ease- ment prior to final map and final PUD. 22. To insure that the project will be designed with adequate safety margins, a design study for the facility shall be subnitted by Lake Calavera Hills Associates to the Public Works Administrator or his designee and shall include the following special studies: foundation, seismic safety, expansive soil, soil stability, and special engineering requirements. ‘X’epised Conditions a Page 6 \ 23, 24. 25 e 26, 27. 28. 29. 30- 31. Grading plans for all facilities shall be approved by the Public Works Administrator or his designee, prior to issuance of building permits. provisions to limit grading, cut and fill and excavation to the minimum areas necessary to prepare construction pads and excavate for treatment, transport and disposal facilities, Such plans shall include Drainage facilities adjacent to the treatment plant and percolation ponds shall be designed to accommodate a one hundred year flood and protect the treatment plant and percolation ponds. These facilities shall be constructed concurrently with grading activity, Surfaces shall be graded\to direct runoff toward designed drainage facilities and away from any cut and fill slopes. . Land shall not be cleared of vegetation except immediately before grading, and grading should take place only during the dry season (April 16 to October 31). All graded.slopes shall be stablized for erosion control immediately following grading by the developer. Landscape and irrigation plans shall be submitted far the approval of the Planning Director. shall be designed to screen the treatment facilities recharge basins from surrounding properties. Plans shall include fast growing, tall trees as well as a combination of shrubs and ground cover. Plants shall be draught tolerant, fire retardant where necessary and easily maintained, shall be fully installed prior to the City accepting the facilities. Natural vegetation and existing Eucalyptus trees shall be retained wherever possible. The landscaping The approved landscaping and irrigation All pumps, generators and other noise producing mechanisms shall be placed underground and/or shielded in such a manner to reduce noise attributed to the facility to a maximum of fifty-five dba at property line of all facilities. The a-oplicant shall submit an archaeological investigation for t& approval of the Planning Director that indicates the location of any archaeological resources that could be affected by the construction of the treatment facility, recharge basirrs, effluent line and any accessory pumps, access roads, wells, etc. Plans shall include means to mitigate any potential impacts noted in this investigation. The final Precise Development .- Revised Conditions Page 7 32, The access.way from the plant to Tamarack shall be improved with a minimum of twenty foot wide asphalt concrete drive- way and shall be approved by the City Engineer and Fire Chief - 33, Fire hydrants shall be installed at locations and with flow rates as approved by the Fire Chief or his designee. percolation ponds, The location, dimension and construction of the driveway shall be to the satisfaction of the City Engineer and the Planning Director. The equestrian trail through the treatment plant site as shown on Exhibit A-1, dated April 11, 1979, shall be constructed by the applicant and maintained by the Lake Calavera Hills Homewoners Association. the equestrian trail located between the treatment plant and the recharge basins shall be 'placed within the effluent line easement, and shall be constructed by the applicant and maintained by the Lake Calavera Hills Homeowners Association. contain this condition. Fina1,plans for treatment facilities and recharge basins shall indicate appropriate lighting to provide adequate night time operations. Such lighting shall be designed in a manner so that nearby residences or public streets are not adversely affected. The lighting plan shall be subject to the approval of the Planning Director, 34, An asphalt concrete driveway shall be provided to the -. \ 35, The portion of The CC&R's for Lake Calavera Hills shall 36. 37. The treatment facility, recharge basins and any other mechanical appurtenances shall be totally enclosed by a fence a minimum of eight feet in height and designed for security purposes, subject to the requirements of the State Water Quality Control Board, 38. The applicant shall provide a method approved by the Public Works Administrator for the disposal of. sludge created by the treatment plant- All equipment proposed to be placed on any roof shall be screened from public view and subject to the approval of the Planning Director. 39. 40. After approval, the applicant shall submit a reproducible copy of the Precise Development Plan which incorporates all requirements of the approval to the City Manager for signature, Prior to signing the final Precise Development I e -, ' .- .. , Revised Conditions 41- Page 8 Plan, the City Manager shall determine that all applicable requirements have been incorporated into the plan and that all conditions of approval have been satisfactorily met or otherwise guaranteed. ment Plan shall be the official site layout plan for the property and shall be attached to any application for a building permit on the subject property. This Precise Development Plan shall be effective only when an ordinance approving Zone Change 203 becomes effective . The final signed Precise Develop- December 11, 1979 e EXHIBIT I'S" LAKE CALAVERA HILLS WASTEWATER TREATMENT, DISPOSAL, RECLAMATION AND ASSOCIATED FACILITIES The facility to be furnished to the City by Lake Calavera Hills Associates shall be a complete functional system capable of op- erating at the rate of 1,200,000 gallons per day, average daily flow, in conformance with approved plans and specifications as well as in conformance with the regulations of all applicable regulatory agencies. The facility shall include, but not be limited to, the following, unless certain specific items are not required by the applicable regulatory agencies: 7. Land and Easements a. Land for the treatment plant site and access road from Tamarack Avenue; b. Non-specific easements for the pipelines from the treat- ment plant to the percolation fields; c. Non-specific easements for the pipelines required as part of the reclamation system; do Land for the Buena Vista percolation field and acc"ess road; e. A non-specific easement for an effluent disposal fail- safe line from the treatment plant to the Encina Water Pollution Control Facility; and f. Land and easements as may be required for the percola- tion system (see #4 below) approved by the Regional Water Quality Control Board and by the City of Carlsbad, The reclamation system shall include, but may not be limited to, additional effluent treatment works, ch?or- ination facilities, demineralization, brine lines, wells, pumps, grout curtains, force mains, underground storage and above-ground balancing reservoirs. 2. Treatment Plant a. tieadworks: b. Two-600,000 gallon oxidation ditches (activated sludge- extended aeration, 24-hour detention time) with at least two each brush-type aerators, drive motors, weirs, control valves ; accepting effluent from either of the oxidation ditches; 1. c. Two adequately sized clarifiers with systems capable of z d. Aerobic sludge digestor; 0 e. Sludge thickener; f. Chlorination contact chamber; g. Sludge compactor; e h. Building housing auxiliary space, facility controls, machine shop, laboratory, office; Pumps, force main, gravity line, booster pumps as necessary €or transportation of 1.2 million gallons per day of treated effluent to either the reclamation system or to the Encina Water Pollution Control Fa- cility ocean outfall; i, j. Pump station and force main to transport raw sewage from sewer main in El Camino Real, at its intersec- tion with Tamarack Avenue or Kelly Drive, to the treatment plant. accommodate reverse flow from the treatment plant to the sewer main in El Camino Real; . This sytem shall be designed to k. Drainage facilities as may be required to protect the plant from a 1.00-year flood; and Any necessary appurtenances required to operate a 1.2 million gallons per day plant. 1. -,_ ... *. Effluent Disposal a. Pump station, force main, gravity line and booster p~np as required to transport treated effluent to the Encina Water Pollution Control ]Facility ocean outfall per #2i above. Reclamat ion System a. Water purification facilities satisfactory to the State and County Health Agencies, to the Regional. Water Quali- ty Control Board and to the City of Carlsbad for the purpose of meeting reclaimed water standards and basin objectives. Of: (1) (2) Such purification facilities could consist Coagulation and sedimentation, reverse osmosis and extended chlorination; or Such other combination of facilities approved by the regulatory agencies, b. Percolation fields, check dams, drainage control systems, and other appurtenances‘ as may be required to operate a spreading bed in the Buena Vista drainage shed capable of aquifer storage of a minimum of 90 days’ production at 1.2 nillion gallons per day. *" t 7. =. e * ** 2 c. Wells, pumps, grout curtains, force mains, balancing reservoir and other appurtenances as may be required to operate a system to transmit reclaimed water from either the purification facilities or the aquifer stor- age to such distribution systems as may be approved. 8- 3", .. -3- I .- I -I-- -- I I I f I I i -. 1 c I 9 - J _- i' I