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HomeMy WebLinkAbout1987-05-19; City Council; Resolution 9081i i ! I( 1: 1; n d t 0 1E 12 2c 21 22 23 24 25 26 27 28 RESOLUTION NO. 9081 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, California does hereby resolve as follows: 1. That certain agreement between the cities of Carlsbad and Oceanside, the State of California, and Hughes North County Associates, attached 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 19th day of May , 1987 by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson NOES : None ABSENT: None CLAUDE A. LEWIS, Mayor ATTEST : AGREEMENT OF COOPERATION REGARDING RISK OF FLOODING OF BUENA VISTA CREEK This agreement, made and entered into as of the - day of May , 1987, by and among the CITY OF CARLSBAD, California (hereinafter referred to as llCarlsbadff) : the CITY OF OCEANSIDE, California (hereinafter referred to as tlOceansideft); the State of California by and through the State Department of Transportation (lICalTrans) and HUGHES NORTH COUNTY ASSOCIATES, a California partnership, and HUGHES NORTH COUNTY ASSOCIATES 11, a California partnership (hereinafter referred to collectively as llHughessf) ; WLTNESSETH WHEREAS, the Buena Vista Creek ("Buena Vista Creek" or ffCreektt) drains a watershed of approximately 25 square miles, flowing though portions of the County of San Diego (ttCountyrl), the City of Vista . (Vista1t) and the City of Oceanside ( "OceansidetI) ; 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 arMaplt) ; 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 I1Highwayt1), 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 : Page 2 a. which is susceptible of flooding; ,,Le construction of the Highway at an elevation 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 and northwesterly of the Highway, resulting in increased storm water run-off and sedimentation flows in the Creek; f. which has increased storm water run-off and sedimentation flows in the Creek: and urban development within the watershed generally 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 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 Page 3 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 tlWorktt). The contractor and the form of agreement to Page 4 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. 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. 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. I 4. ADJACENT UPLAND DEVELOPMENT. Oceanside, Carlsbad and Hughes shall cooperate to address outstanding issues regarding the development of the Page 5 portions of t,,e Hughes lands adjacent to th, channel, together with a proposed bridge crossing the channel, all in accordance with applicable 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 BY Ti Date May 21, 1987 CITY OF OCEANSIDE A Municipal Corporation of the State of California BY Title Date STATE OF CALIFORNIA By the State Department of Transportation BY Title Date Page 6 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 HUGHES NORTH COUNTY ASSOCIATES 11, a California General Partnership, By HUGHES INVESTMENTS, a California General Partnership, a General Partner, William W. Hughes, Jr. a General Partner Date 3- , ’- , ?;2 Page 7 APPROVED AS TO FORM: ATTEST: ALETHA L. RAUTENKRANZ fl City Clerk, Carlsbad APPROVED AS TO FORM: CHARLES REVLETT city Attorney, Oceanside ATTEST: BARBARA BISHOP City Clerk, Oceanside EXHIBIT A April 21, 1987 EXHIBIT B BUENA VISTA CREEK CHANNEL MAINTENANCE Scope of Work: 1. Hughes shall proceed on a one-time basis to engage a qualified contractor to dredge that portion of the Buena Vista Creek Channel identified as Portion trAvr on Item I attached hereto, which extends from the Jefferson Street bridge on the western property line of the Hughes property for a distance of approximately 1450' east to the Hughes eastern property line. The dredging shall be done so as to re-establish a relatively constant grade from the present elevation of the channel bed at Hughes' eastern property line to the easternmost edge of the upper surface of the concrete apron forming the bed of the Creek at the Jefferson Street Bridge. The dredging operation will consist of removing cattails, bulrushes, silt and all foreign material deposited in the Buena Vista Creek Channel. Notwithstanding the 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 remaining southerly 30% of the channel's width, 2. Subject to the approval of Plaza Camino Real, Hughes may 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 ItBlr 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 IrAt1 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 & Maintenance Department.