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HomeMy WebLinkAbout05/03/2011, C 8 - ANDREWS CREEK PHASE II IMPROVEMENTS 1A & 2B, SPECIFICATION NO. 90562A council "a%y 3,.2011 j ac,Enaa aEpoizt CITY OF SAN LUIS OBISPO FROM: Jay D. Walter, Director of Public Works JD1W Prepared By: Matt Hom, Supervising Civil Engineer SUBJECT: ANDREWS CREEK PHASE II IMPROVEMENTS 1A & 2B9. SPECIFICATION NO. 90562A RECOMMENDATION 1. Approve plans and specifications for the Andrews Creek Phase II Improvements IA & 2B Project, a Measure Y- `/2 cent sales tax funded project, Specification No. 90562A 2. Authorize staff to advertise for bids and authorize the City Manager to award the contract if the lowest responsible bid is within the Engineer's Estimate of$320,000. DISCUSSION In 1999, a project was constructed to reduce the possibility of flooding to the residents of Conejo Avenue. This project installed a high flow bypass system that would allow larger flows in Andrews Creek to be diverted into two pipes, which ran under Andrews Street, and into San Luis Obispo Creek. In April 2008, the City entered into a contract with the Wallace Group to complete an evaluation of the existing drainage system and to make recommendations for improvements. In August 2008 the product of that evaluation, the Andrews Creek Bypass Deficiency Study was complete. Staff reviewed the recommendations, implemented those recommendations that could be completed with City staff, and budgeted for other improvements that would require a contractor to complete or required permitting from other agencies. In March 2009, the Wallace Group began preparing plans and specifications for the Andrews Creek project. The work was divided into two separate project phases based on the location of work and the required permitting. The phase 1 project includes the installation of a wall along the rear of the properties located on Conejo and Alisal Street (see Attachment 1). The Phase 2 project includes modification to the existing bypass structure, installation of debris basins above the bypass, and removal of accumulated debris in the creek channel below the bypass (see Attachment 1). The design of Phase 1 work is on hold, pending the resolution of outstanding issues, including the implications of permanently modifying the historic drainage path of flood waters and the resulting new impacts to properties along Alisal, Cazadero, and Conejo Street. Phase 2 project plans are now complete. In order to construct the Phase 2 project in the 2011 calendar year, the City must advertise this project without all clearances in place. In order for this project to be constructed the City must C8-1 Andrews Creek Phase II Improvements,Specification No. 90562 Page 2 have Army Corps of Engineer's (ACOE), Regional Water Quality Control Board (RWQCB), and California Department of Fish and Game (F&G) authorization. In addition to these agency authorizations, right of entry agreements are required from two properties located along Alisal Street in order to complete the necessary debris removal in the creek area. Currently, the City has received authorization from ACOE and F&G. RWQCB authorization is pending, but staff is expecting this authorization to be received prior to award of a construction contract. Right of entry agreements are currently being sought and indications look positive that agreements will be received. If agreements have not been received by the time of construction, the Contractor will be directed not to complete the creek debris removal. While the creek debris removal is an important part of the Phase 2 work, the area of greatest improvement is the bypass structure modifications which are not subject to the right of entry agreements. CONCURRENCES The Community Development Director filed a Notice of Determination on September 30, 2010. The Army Corp of Engineers has issued a Letter of Permission for this project. The California Department of Fish and Game has issued a Streambed Alteration Agreement for this project. Regional Water Quality Control Board 401 Certification and Right of Entry Agreement with adjacent properties are pending. FISCAL IMPACT There is currently $360,507 in the project account to support this request for $444,000. Additional funding of $84,000 is proposed in the 2011-13 Financial Plan. If approved, this additional funding will bring the total project funding available to $444,507. The project will not be awarded until after the start of the 2011-12 fiscal year. By the time bids are received, Council will have concluded the budget process. If Council decides not to fund the 2011-12 request, staff will return to Council with an alternative funding recommendation for the amount needed to award, or recommend the rejection of all bids. Award will also be subject to receipt of final regulatory approvals. This project is 100% funded through Measure Y, the half-cent sales tax measure approved by the City's residents. Andrews Creek Improvements (90-562) llui)crr Construction: $320,000 Construction Contingencies: $48,000. CM, CA, & Survey Services: Material Testing: $5,000. i Printing:{ $7501 !Total Cost of Project _ _ I $444,5071 Current Funds in project account: $360,507 Funds Anticipated after July 1, 2011: --� ^ $444,5071 C8-2 Andrews Creek Phase II Improvements, Specification No. 90562 Page 3 ATTACHMENT Vicinity Map AVAILABLE FOR REVIEW IN THE COUNCIL OFFICE 1. Deficiency Study 2. Plans and Specifications \\chstore4\Team\Counci1 Agenda Reports\Public Works CAR\2011\CIP\90562 Andrews Bypass\90562 Adverbse.doc C8-3 ATTACHMENT 0 ��• 000 o ° PHASE-2 fi PROJECT o PHASE BYP\`W STRUCTURE PROJECT L)tt5K1,%j bAbINS C CHANNEL CLEARING CO v r I n1- o i f ' san Usow VICINITY MAP Public Works Department 919 Palm Street, San Luis Obispo, CA 93402 C84 Dear City Council Members: May 2, 2011 We are pleased that the City is planning to make much needed corrections and improvements to the Andrews Street Bypass Structure, but we are disappointed that opening the Public Drainage Easement is not part of this project. We own property at 1750 Conejo Avenue and my mother Jan Clucas, owns property at 1727 Corralitos Avenue. Both properties experienced flood waters during the 1995 flood and we never want to be subjected to that again! Until the Public Drainage Easement was blocked, flood water always ran through the easement and out to Cazadero street. The course of the water has been altered by the blockage and now the only outlet is through several uphill homes facing Conejo Avenue. That makes our property, and all downhill properties in the 1700 blocks of Conejo and Corralitos, much more vulnerable to major flooding and serious damage. The issue of the blocked drainage easement has been brought to the attention of the City Council on several previous occasions. We sincerely hope that this time the Council will recognize the seriousness of the situation and will direct City staff to open the easement and build a protective wall at the same time the Andrews Bypass Structure is rebuilt. That is a solution that will truly ensure the safety of the Conejo/Corralitos neighborhood. Thank you, Barbara Datter Jim Datter Jan Clucas } 3 , t a, f 1 ��kyyy rQY 1 r L' T 1 1 I 1 f dr ........... f A r /03 ,Q fI f r u F � s a: x m: b r, v va x' , n n� 1' v 4 v d � `i v 5y si T Y i r 3 i5" l 9 2 I 1 tie r z k � szgzm�;z � $r WON �. h ✓ " t ' ANAyy., wi VO I r r EVE A, a TOP 1 ova logo 1 r z .. yt Asa. x i w,_ z Xf . .xm �. �m x ` Aft � a Dear City Council Members: May 2, 2011 We are pleased that the City is planning to make much needed corrections and improvements to the Andrews Street Bypass Structure,but we are disappointed that opening the Public Drainage Easement is not part of this project. We own property at 1750 Conejo Avenue and my mother Jan Clucas, owns property at 1727 Corralitos Avenue. Both properties experienced flood waters during the 1995 flood and we never want to be subjected to that again! Until the Public Drainage Easement was blocked, flood water always ran through the easement and out to Cazadero street. The course of the water has been altered by the blockage and now the only outlet is through several uphill homes facing Conejo Avenue. That makes our property, and all downhill properties in the 1700 blocks of Conejo and Corralitos, much more vulnerable to major flooding and serious damage. The issue of the blocked drainage easement has been brought to the attention of the City Council on several previous occasions. We sincerely hope that this time the Council will recognize the seriousness of the situation and will direct City staff to open the easement and build a protective wall at the same time the Andrews Bypass Structure is rebuilt. That is a solution that will truly ensure the safety of the Conejo/Corralitos neighborhood. Thank you, Barbara Datter Jim Datter Jan Clucas hard ca email: a COUNCIL o CDDDIR • IR o A°nMCM mu C FIT RED FILE • � TA VOIU aPwUMEETING AGENDA o CLERSlORIG o POLiCECFileF a FIB aPAW&MCDIR • TRIBUNE O UMD'R NVT o EWiDATE> A ITEM # 07 A�ffi a HRDrR a SLOCnYNM a COUNCIL o CrrY MGR a CLERK LAW OFFICES WILLIAM 5. WALTER A PROFESSIONAL CORPORATION TELEPHONE (605) 541-6601 THE BELLO HOUSE EMAIL FACSIMILE 1605) 541-6640 679 MONTEREY STREET WWALTERQTCSN.NET SAN LUIS OBISPO, CALIFORNIA 93401 Ap iu ?92011 em� VIA PERSONAL DELIVERY ° COUNCIL C GDDUt I/1_ \\\ o CITY MGR a FRDDt RECEIVE o ASSrCM o FIRE CHIEF O ATTORNEY 0 PWDM o CLERWRIG a POUCECHW APR 2 9 toll Mayor and City Council o PIR m PARKS&RECDIR C/o City Clerk o Ewe o IM ALO CITY OLERK City of San Luis Obispo O SLOCITYNEWS oCOUNf9. L CTrY MGR 990 Palm Street o CUYXK San Luis Obispo, CA 93401 RE: ITEM C8 OF COUNCIL AGENDA REPORT, MAY 3, 2011; ANDREWS CREEK PHASE II IMPROVEMENTS I AND SB, SPECIFICATION NO. 90562A Dear Mayor and City Council: ACTION ITEM REQUEST: Please Direct the Staff to proceed with the Phase I portion of the project and return it to Council with completed plans which are ready for construction bidding. This office represents Steve and Jeanne Secrest, who are the owners of property located at 1739 Conejo Ave., San Luis Obispo. Our clients are very concerned that the staff report for the above referenced item on your agenda indicates that: "The phase 1 project includes the installation of a wall along the rear of the properties located on Conejo and Alisal Street (see Attachment 1). ... The design of Phase 1 work is on hold, pending the resolution of outstanding issues, including the implications of permanently modifying the historic drainage path of flood water and the resulting new impacts to properties along Alisal, Cazadero, and Conejo Street." There is a long history to these drainage problems. Our clients' property is located downhill from the existing City drainage system. In March, 1995, our clients' home and garage were inundated by collected waters and debris flows as was the property owned by Carl and Virginia Hysen. Litigation ensued and in an effort to avoid litigation costs to the City and the parties, a settlement agreement was entered into with the City to allow the City to implement solutions to the drainage problems, with our clients reserving claims for permanent damages resulting from future events. The City staff has a video of the 1995 flood event which dramatically illustrates how significant debris flows cross our clients' property and endangers other properties downhill from our clients' property. RED FILE MEETING AGENDA DATE VA M ITEM # e Mayor and City Council c/o City Clerk City of San Luis Obispo April 29, 2011 Page 2 When the City was preparing its plans for the Andrews Street/Conejo Drainage improvements after 1995, concerns were expressed by our clients, other neighbors, and our client's civil engineer, Jim Garing, about whether those changes and the design of the system could accommodate debris and water flows. Then Council member Dave Romero expressed those concerns as well to City Staff and to the Council members about the adequacy of the design. Our clients, their engineer, and various neighbors expressed concerns that in the event of clogging of the upstream structures, there needed to be a safe overflow channel which would not endanger adjoining properties, including our clients' property, and called attention to long- standing City policies which required such protection when there are underground structures. The City proceeded with its plans despite these concerns and completed them around 1999-2000. The City made various other changes to these structures in the interim. The net effect was to make the situation worse. Our client's uphill neighbors, the Wilson's, placed fill, retaining structures, and fences across the public drainage easement during the fall of 2003. The Wilson's and the City were informed by our clients and Jim Gating of the problems which these structures and fill could create in diverting overflowing waters and debris onto our clients' property. Our clients even appealed these issues to the Planning Commission City Council, and ultimately the City allowed the fill and diverting structures to remain in the public drainage easement, despite warning that they could divert surface flows from the public drainage easement onto our clients' property. On December 31, 2004, our clients' property was again flooded, damaging their garage and property. This occurred from a minor storm which the engineers refer to as a 1 to 2 year storm. Sadly, our clients' unheeded warning proved to be well founded. Our clients are now concerned that postponing the Phase I portion of the project will continue the likelihood of future events. It is difficult for them to live with consistent worry, anxiety, and apprehension every time there is a significant rain event. Everyone has been fortunate that significant events have not occurred, because if they had, the water and debris would not only damage our clients' property, but also downhill property on Conejo Avenue, because water and debris will flood our clients' property and then go downhill to the other properties. The video of the 1995 event (which City staff has available for your review), which was probably no greater than a 10 year event. Unless Phase I is also put on a definite time table, the City is tempting fate that the scope of the problems and liability will not become catastrophic for the neighborhood. The Wallace Group Deficiency Study, at p. 13, identifies as one of the five drainage system deficiencies,the lack of a safe overflow path: "Lack of a safe overflow path: Because of the high potential for debris flows and obstruction to the primary drainage paths and i Mayor and City Council c/o City Clerk City of San Luis Obispo April 29, 2011 Page 3 inlets, the lack of an unobstructed overflow path is critical. The current situation with fencing across all possible overflow paths has made the problem even worse. Floodwaters will find a weak spot in one of those fences and force a collapse, possibly] sending a cascade of water into someone's property." The City's own Engineering Standards, January 2003 edition, which is the same as prior versions, requires that: "All underground structures shall be provided with an alternate surface area that will safely carry off storm waters should the structure become blocked. The surface area shall not be obstructed in such a way as to divert or block storm water endangering adjacent development." By postponing Phase I and by not clearing obstructions to the public drainage easement, proceeding without Phase I will violate this standard, and continue to pose a serious danger to the neighborhood properties. Mr. Romero was the City Engineer when the tract map was recorded and has testified that the public drainage easement was intended to create both surface and subsurface rights. Current City staff has taken an opposite position, for reasons which are not very clear and make no sense. It behooves the City to assert its surface and subsurface rights to eliminate one of the identified deficiencies in the drainage system. Our clients have submitted plans to the City for a protective wall around their property upon learning of the lack of a City commitment to complete a wall and safe alternate surface area. Our clients prefer an area-wide solution, but if the City will not proceed with a safe overflow path and protective wall, then our clients have to do so to protect their property. Thus far, our clients' engineers are encountering resistance from the City representatives, and they may not even be allowed to protect themselves. That would mean that our clients' property becomes a permanent overflow path, and would result in a complete taking of their property for public purposes without the payment of just compensation in violation of the California and United States Constitutions, as well a violating their equal protection and due process rights and 42 USC Section 1983. We have enclosed the following materials to provide background for the City Council, which in tum reference other documents and exhibits, of which we request the Council to take official notice: 1. Petition signed by Conejo/Corralitos downhill property owners and hand delivered to City Hall in Nov. 2008; Mayor and City Council c/o City Clerk City of San Luis Obispo April 29, 2011 Page 4 2. Declaration of James Garing I Support of Plaintiffs' Opposition to Defendant City's Motion for Summary Judgment; or in the Alternative for Summary Adjudication; 3. Separate Statement of Undisputed Material Facts in opposition to Defendant City of San Luis Obispo's Motion for Summary Judgment or in the Alternative for Summary Adjudication; 4. Chronology. Thank you for you consideration of these materials Very trmly yours, /9 Wil i S. Walter Enclosures cc: Steve Secrest Jeanne Secrest City Clerk, City of San Luis Obispo PETITION To: Mayor Romero, City Council Members We do not agree with the City/Wallace Study regarding Overflow Path improvements. The City/Wallace preferred solution of an L-shaped swale ignores the following: 1. The bottom 1/3 of this Public Drainage Easement continues to be obstructed at the Wilson/Hansen property line with re-grading, cross-fencing/wood retaining structures, etc. This bottleneck of the 12-foot wide Public Drainage Easement/overflow channel assures debris and flood water build-up, blockage and flooding of properties downhill from the easement. 2. The lack of a wall or even L-shaped swale in the upper 1/3 of the PDE/overflow channel offers no protection to these properties or any properties across Conejo Avenue and downhill from them 3. The L-shaped swale is inadequate and unsafe for many downhill properties. Due to the nature of the steep unstable hillsides that make up a major portion of this watershed, large amounts of rock & debris could overwhelm the culverts and the swale. This happened inl995. Minor to moderate"clear water flow"runoff is not the major concern. Moderate to heavy debris-laden storm runoff is what the City Staff needs to contain in this PDE. Name Address 176-,9 Gclleio Ave, , S Z..12 ,4. -f LN&:T-0 +(6 43� l t lye PETITION To: Mayor Romero, City Council Members We do not agree with the City/Wallace Study regarding Overflow Path improvements. The City/Wallace preferred solution of an L-shaped swale ignores the following: 1. The bottom 1/3 of this Public Drainage Easement continues to be obstructed at the Wilson/Hansen property line with re-grading, cross-fencing/wood retaining structures, etc. This bottleneck of the 12-foot wide Public Drainage Easement/overflow channel assures debris and.flood water build-up,blockage and flooding of properties downhill from the easement. 2. The lack of a wall or even L-shaped swale in the upper 1/3 of the PDE/overflow channel offers no protection to these properties or any properties:across Conejo Avenue and downhill from them 3. The L-shaped swale is inadequate and unsafe for many downhill properties. Due to the nature of the steep unstable hillsides that make up a major portion of this watershed, large amounts of rock& debris could overwhelm the culverts and the swale. This happened inl995. Minor to moderate "clear water flow"runoff is not the major concern. Moderate to heavy debris-laden storm runoff is what the City Staff needs to contain in this PDE. Name Address Wpf, - 7 p Cop(, p I WILLIAM S. WALTER—SBN 73061 A PROFESSIONAL CORPORATION 2 679 Monterey Street San Luis Obispo, CA 93401 " (- 3 Telephone: (805)541-6601 4 Facsimile: (805)541-6640 5 Attorneys for Plaintiffs,Stephen Secrest and Jeanne Secrest 6 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF SAN LUIS OBISPO 10 11 STEPHEN SECREST,and LEAD CASE NO.: CV 060225 12 JEANNE SECREST, Non Lead Case No.: CV 080733 13 Plaintiffs DECLARATION OF JAMES GARING IN 14 V. SUPPORT OF PLAINTIFFS' 15OPPOSITION TO DEFENDANT CITY'S CITY OF SAN LUIS OBISPO,and MOTION FOR SUMMARY JUDGMENT; 16 Does 1 through 100,inclusive, OR IN THE ALTERNATIVE FOR 17 SUMMARY ADJUDICATION 18 Defendants. Date: April 20,2011 19 Time: 9:00 am 20 Dept.: 8 CITY OF SAN LUIS OBISPO 21 CONTINUANCE REQUESTED Cross-Complainant PURSUANT TO CCP§ 437c(h) 22 23 V. Judge: Hon. Dodie Harmon 24 MARK MOTT and KATHY MOTT, and Trial Date: May 23,2011 25 DOES 1-100,inclusive Cross-Defendants Actions Filed: March 22, 2006 and 26 August 1,2008 27 28 t DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT; OR IN TIME ALTERNATIVE FOR SUMMARY ADJUDICATION I STEPHEN SECREST,and 2 JEANNE SECREST, 3 4 Plaintiffs 5 V. 6 MICHAEL WILSON, LINDA WILSON, 7 husband and wife and DOES 1 th=ough 100, g inclusive, 9 Defendants. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CIIYS MOTION FOR SUMMARY JUDGMENT;OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION 1 I, ROBERT JAMES GARING,do declare and state: 2 1. 1 am also known as JIM GARING. 3 2. I am a licensed Civil Engineer in the State of California, having been licensed 4 since July 14, 1976. A true and correct copy of my curriculum vitae is attached as Exhibit A to S the exhibit package filed concurrently herewith and incorporated by this reference. 6 3. 1 am a Principal Engineer in the Firm of Garing, Taylor and Associates, Inc., a 7 Civil Engineering Firm in Arroyo Grande which has been doing business in Arroyo Grande since 8 1962. In April of 2010, Garing, Taylor and Associates, Inc. completed forty eight years in 9 business. 10 4. Between the years of 1980 and 20061 was the President of the Firm of Garing, I 1 Taylor and Associates Inc. and am now the Principal Engineer in the above mentioned firm. As 12 Principal Engineer and President of the firm my duties include the following: 13 14 a. I am the City Engineer of the City of Grover Beach having been appointed by the City Council of the City to the position of City Engineer on 15 December 7s' 1981. In December I will complete my 29a' year in service 16 as City Engineer of Grover Beach. b. I served as the consulting District Engineer for the Nipomo Community 17 Services District from 1992 to 2007, a period of 15 consecutive years. c. I am the District Consulting Engineer for the San Miguelito Mutual Water 18 Company,having filled that position since 1992. 19 d. I served as the District consulting Engineer for the Oceano Community Services District from 2000 through 2008. 20 e. I have been the Civil Engineer of record in the preparation of many parcel 21 maps and tract maps for private sector development in San Luis Obispo County. 22 23 S. In my capacity as City and District Engineer as noted above I have been the 24 Engineer responsible for reviewing and checking tract maps and final maps. Among the areas of 25 concern when checking tract maps and final maps is that of ensuring that the scope of easements 26 and dedications are correctly described so as to provide adequate authority to conduct.activities, Z7 construct facilities and maintain facilities intended to be placed within subject easements or other 28 rights of way. 3 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT: OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION i 1 1 6. I have reviewed in detail the maps which were required to create the properties 2 currently occupied by the Secrests and also the Wilsons. Those maps depict easements and other 3 rights of way for various Public Improvements required to serve the occupants of the respective 4 tracts and provide access to Public Agencies in order to maintain those facilities. The further and 5 ongoing investigations which I have conducted are described in detail in later portions of this 6 declaration. In order to provide some clarity and consistency in the identification of the various 7 portions of the drainage system, I will use similar characterizations as are contained in the 8 Wallace Deficiency Study dated August 21, 2008, which is attached as Exhibit S to the Exhibit 9 Package filed concurrently herewith. From up stream to down stream, the drainage system 10 consists of the following components: (a) The watershed is described on.pages 4 through 6 of 11 that Study and consists of approximately 100 acres. (b) Andrews Creek refers to those areas 12 identified in that study located above the downstream Andrews Bypass. (c) The Andrews 13 Bypass or Bypass Structure is described on pages 6-7 of that study which consists of four 14 components: (1) an irregular-shaped horizontal concrete orifice equiped with a welded pipe trash 15 rack shown in the phograph on page 6 of that study, and refered to as the Trash Rack; (2)just 16 downstream of the orifice is a rock catcher-weir built across the creek channel shown in the 17 phograph on page 7 of that study, and refered to as the Rock Catcher, (3) a rectangular concrete 18 box culvert at the base of the orifice as shown on the photograph on page 6 of that study, and(4) 19 1170 feet of double 36 inch smoth-walled high density polyethelene pipe with an outlet in San 20 Luis Creek. (d) An Earth Channel is decribed on page 9 of that study downstream of the Bypass 21 Structure which conveys flows to the entrance to the 36 inch storm drain on the Hansen property 22 and refered to as the Hansen Inlet. (e) The Hansen Inlet refered to on page 9 of that study as 23 shown on the Tract 30 improvement plans, which leads to the 36 inch reinforced concrete pipe. 24 (f) An Overflow Path which refers to the areas described on pages 9-10 of that study and 25 includes the public drainage easement area shown on Final Tract Map 92. 26 7. The Secrests occupy Lot 3 and the Northerly half of Lot 2 of Block 4, Tract No. 27 30. Entitled "Escuela Alta', Tract 30 was recorded November 8, 1939. The map for Tract No. 28 30 depicts on the easterly side of:lots 1 through 3,Block 4 a 12-foot wide strip annotated "12' 4 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITn MOTION FOR SUMMARY JUDGMENT;OR IN THE ALTERNATIVE FOR. SUMMARY ADJUDICATION I Reservation For Storm Drain". This 12-foot reservation for storm drain occupies the Westerly 2 12-feet of lots 8 and 9, Block 4 as depicted on Tract 30 which lots bordered the Easterly 3 boundary of Lots 2 and 3, Block 4 of Tract 30. A true and correct certified copy of Tract 30 is 4 attached as Exhibit B to the exhibit package filed concurrently herewith and incorporated by this 5 reference.' Tract 30 improvements created the Hansen Inlet and the 36 inch reinforced concrete 6 pipe portions of which are within the Reservation For Storm Drain (except for the Hansen Inlet 7 itself). 8 8. My investigation and experience with similar maps and practices in San Luis 9 Obispo County indicate that the Reservation for Storm Drain described in the former paragraph 10 was created with intent to provide an area to construct and maintain an underground drain as part I l of the Tract Improvements. In fact, the Tract plans for Tract 30 show that a 36-inch inside 12 diameter concrete storm drain was to be constructed within the subject reservation. An 13 underground storm drain exists within that reservation today. 14 9. On December 10, 1958 a map, Tract 92,"Escuela Alta No. 2"was recorded. This 15 map re-subdivided lands Easterly of Lots 1 through 7 of Block 4 Tract No. 30. A true and 16 correct certified copy of Tract No. 92 is attached as Exhibit C to the exhibit package filed 17 concurrently herewith and incorporated by this reference? Tract No. 92, which re-subdivided 18 lands Easterly of what is now the Secrest property in Tract No. 30 re-characterized, that is, used 19 different language to describe the the drainage area described on Final Tract 30.. On the map of 20 Tract No. 92 the area which had formerly been reserved for storm drain was changed and re- 21 characterized as "12' Drainage easement". This change and/or re-characterization from a storm 22 drain reservation to a drainage easement indicates an intent to broaden the scope of the easement 23 recorded on Tract No. 92 significantly to include surface as well as subsurface rights. It is my 24 25 'For convenience of this Court a true and correct copy of an enlargement of Tract No. 30,"12' Reservation for Strom drain"is attached as Exhibit Bb to the exhibit package filed concurrently 26 herewith and incorporated by this reference. 27 'For convenience of this Court a true and correct copy of an enlargement of Tract No.92, the 28 recharacterized "12' Drainage easement"is attached as Exhibit Ccr to the exhibit package filed concurrently herewith-and incorporated by this res erence. DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CHY'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION I opinion that in standard civil engineering practice in the preparation and approval of final maps, 2 this change in wording was intended to broaden the scope of the former storm drainge 3 reservation to a drainage easement which includes surface rights in the drainage easement shown 4 on Final Map 92. This intent to create surface as well as subsurface rights intent is reflected in 5 the deposition testimony of David Romero who signed the Final Tract Map 92 in his capacity as 6 City Engineer. The area of the Drainage easement does not include any portion of the Secrest 7 property. 8 10. Among the many reasons for my opinions regarding the intent and scope of the 9 Final Tract Map 92 are that on Maps recorded throughout the County of San Luis Obispo, the 10 notation "drainage easement" is often used to describe an easement where surface drainage 11 occurs. At the time of the re-characterization of this easement from a storm drain reservation to 12 a drainage easement, an underground storm drain physically existed within the easement. 13 Because the underground facility existed at the time of recharacterization, the easement also 14 includes an underground right. This conclusion is consistent with my understanding of the 15 standard of care and engineering practice in San Luis Obispo County in the preparation of Tract 16 and Parcel Maps. It is also consistent with standard civil engineering practice that the grants of 17 drainage casements on final maps are construed broadly in favor of the grantee to create all 18 reasonably necessary rights to achieve the purpose of the grant or reservation. 19 11. Tract No. 92 resubdivded the lands Easterly of lots 1 through 7 of Block 4, Tract 20 No. 30. The new tract reconfigured streets in such a manner that public drainage water from 21 Alisal Street of Tract No. 92 is introduced into the newly recharacterised "12' Drainage 22 easement". Additional collected surface waters were directed from the new street created on 23 Tract 92 and a new easement was created on the Map to direct that water towards the Hansen 24 Inlet. On the title sheet of Tract No. 92, the subject drainage easement is dedicated to public 25 use.3 26 27 28 3 For convenience of this Court an enlargement of the title sheet of Tract No. 92 "Owners Certificate"is also attached as Exhibit Cc2 to the exhibit package filed concurrently herewith and incorporated by this reference. 6 DECLARATION OF JAMES GARING IN SUPPORT OF PLAJNTIFFS' OPPOSITION TO DEFENDANT CITY'S M011ON FOR SUMMARY JUDGMENT; OR.IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION 1 12. At present, the storm drain,outlet from Alisal Street, and Hansen Inlet are shown 2 to be owned by the City of San Luis Obispo on the City's storm drain mapping system. A true 3 and correct certified copy of the City Storm Drain Map is attached as Exhibit E to the exhibit 4 package filed concurrently herewith and incorporated by this reference.. 5 13. Final Tract Map 940 was recorded in the records of the County of San Luis 6 Obispo on September 13, 1985, Book 12, Page 16 of Maps. The Map created a public drainage 7 and riparian easement as shown on page 67, where the Rock Catcher is located. Concurrently 8 with the Map, a Deed of Easement was also recorded granting to the City of San Luis Obispo an 9 easement to maintain and repair a drainage way and related improvements, being an easement 10 for drainage, creek access and maintenance in its natural state with the right to make 11 improvements located upstream from the Rock Catcher including portions of the Watershed. As 12 Built plans for the improvements built as required by the City of San Luis Obispo for Tract 940, 13 which plans are dated December 9, 1986 indicate, among other features that a"ROCK GUARD" 14 was constructed in the Andrews Creek channel as of that date. The "ROCK GUARD" lies 15 approximately 189 feet Easterly of the East comer of the Secrest Property, in the Andrews Creek 16 channel. .What the Improvement Plans(sheet 3) refers to as a Rock Guard is what the Wallace 17 Group Deficiency study identifies as the Rock Catcher. True and correct copies of these 18 documents are attached to the exhibit package filed concurrently herewith as Exhibit Q. 19 14. After the Secrest's property was flooded on March 10, 1995, I have conducted 20 an ongoing investigation of conditions upstream and downstream of the various components of 21 the drainage system. This investigation has numerous site visits,topographic surveys, review of 22 documents as they have become available, interviews with the property owners,discussions with 23 City staff preparation of plans, the study of remedial solutions, changes to the drainage system 24 since 1995, preparation of drainage calculations, review of drainage studies, and many more 25 items or sources of information. My investigation includes but is not limited to the following: 26 27 28 7 DECLARATION OF JAMES GARING IN SUPPORT OF PLADMFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT; OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION 1 I a. The condition and the changes to "ROCK GUARD" at various times through the 2 present. 3 b. Preliminary, final and As Built plans for the Andrews-Conejo Storm Drainage 4 Improvements,City of San Luis Obispo. 5 c. Topographic Study of the area upstream and downstream of the "ROCK 6 GUARD". 7 d. Changes to the natural stream channel associated with(b.)above. 8 e. Review of topographic study of the area upstream and downstream of the"ROCK 9 GUARD"which was prepared by RRM Design Group in 2007. 10 f. Andrews Creek Bypass Deficiency Study, Wallace Group, August 2008 with I 1 signature block for signature of Craig Campbell. 12 g. Andrews Creek Bypass Deficiency Study, Wallace Group, August 21, 2008, 13 signed by Barry Rands. 14 h. Andrews Creek Bypass Preliminary Design Report, Wallace Group,July 30, 2009, 15 signed by Bary Rands. 16 i. Structures constructed by Wilson within the "12' Drainage Easement" created by 17 Tract 92. 18 j. Approximately 150 separate documents contained in binders annotated"08 Nov 39 19 to 28 Aug 97', "20 Feb 98 to 07 Sept 0611, "07 Jan 08 to 16 Sept 10", "4 Nov 10 to 27 20 Dec 10". 21 k. Various Depositions and Declarations and documents as they become available 22 during discovery. 23 24 I5. Since the March, 1995 event, the City has made numerous changes to the 25 drainage system. On March 20, 19979 I inspected the "ROCK Catcher" and among other things, 26 took Polaroid photographs of the structure. As of that date, I observed that the"ROCK Catcher" 27 was in substantially the same condition as is indicated on the As Built Plans of December, 1986. 28 True and correct copies of those exhibts are attached to the exhibit package as Exhibit T and 8 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNOT^m " SUMMARY ADJUDICATION l I Exhibit U, incorporated by this reference. These photographs and inspection provide a basis 2 upon which I can determine the extent and nature of subsequent changes to the Rock Catcher. 3 16. In July, 1996, the City Council budgeted $30,000 to "Make minor improvements 4 to the drainage channel behind.Conejo Avenue (changes to the Tract 940 "ROCK CATCHER'). 5 True and correct copies are attached to the exhibit package as Exhibit V. 6 17. On August b, 1997, Wayne Peterson, City Engineer of San Luis Obispo, signed 7 plans for Storm Drain Improvement Project(a true and correct copy is attached as Exhibit W to 8 the exhibit package filed herewith, incorporated by this reference): Wolfe Property Rock 9 Catcher. The "Wolfe Property Rock Catcher" is the same structure as the "ROCK Catcher". 10 These plans provided for adding concrete walls on top of the existing"ROCK Catcher"concrete 11 walls and also adding a steel grate on top of the existing steel grate which spanned the Andrews 12 Creek channel as part of the Tract 940 "ROCK Catcher". The new grate raised the top of the 13 original grate by 1.3 feet on the South side and 1.6 feet on the North side of the original "ROCK 14 Catcher". My subsequent inspections discloses that these changes were in fact made. 15 The effect of the new, high grate addition is that when it becomes blocked with debris, a 16 low area on the right side of the channel will allow drainage water to escape the earth channel. 17 Drainage water which escapes the channel at this location does not rejoin the channel 18 downstream, but flows to the backyards of property fronting Conejo Avenue, including 19 Plaintiffs' property. These changes created a "notch" where the new concrete wall was 20 constructed on top of the existing concrete wall, which caused water and debris to flow through 21 the "notch" instead of allowing flow to continue in the earth channel to the Hanson inlet. This 22 new grate unreasonably blocked flow in the channel and diverted drainage waters through the 23 "notch" to Conejo Avenue properties including the Secrests during the 2004 event. In addition 24 to the new high grate, a solid steel plate, .1.3 feet high was added to bottom of the "ROCK 25 Catcher" grate, totally blocking the lower 1.3 feet of the 1986 grate. The solid steel plate, 26 although added at this time, was not shown on the plans signed by Wayne Peterson in July of 27 1997 (see No. 7, Jay Walter Declaration of January 31, 2011). This new plate created an 28 additional; unreasonable blockage of the Andrews Creek channel at this location. 9 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CIT"MOTION FOR SUMMARY JUDGMENT; OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION 1 18. The changes to the Rock Catcher in 1998 were constructed and created an open 2 spot or"notch"in the North concrete wall which was approximately 1.3 feet below the top of the 3 newest grate addition. Before drainage water could flow through or over the newest grate, 4 drainage would flow through the "notch", then tum Westerly toward the back yards of property 5 owners on Conejo Avenue. 6 19. In early 1999, the City of San Luis Obispo Engineering Division was in the final 7 stage of plan preparation for a storm drain project which was intended to divert drainage waters 8 away from the Secrest residence and other inhabitants of the Cazadero/Conejo area of San Luis 9 Obispo. This project is known as the Andrews/Conejo Storm Drainage Improvements, the 10 construction of which added what the Wallace Deficiency Study refers to as the irregular-shaped I I horizontal concrete orifice (or inlet structure) equipped with the welded pipe Trash Rack, the 12 rectangular concrete box culvert at the base of the orifice in the pre-existing creek channel, and 13 the 1170 feet of double 36 inch HDPE pie with an outlet.in San Luis Obispo Creek. I wrote a 14 letter to Jeff van den Eikhof, Engineering Assistant, City of.San Luis Obispo (See Exhibit l) 15 because I was concerned that the design of the storm drain inlet for the above-mentioned project 16 was inadequate and that that inlet would become plugged with rocks and debris during moderate 17 stones. 18 20. The plans(as built) for the Andrews-Conejo Storm Drainage Improvements in the 19 City of San Luis Obispo, which was constructed in 1999-2000, contain no alternate surface area 20 that will safely carry off storm waters should the structure become blocked.. A true and correct 21 copy of the Andrews-Conejo Storm Drainage Improvements plans are attached as Exhibit J to 22 the exhibit package filed concurrently herewith and incorporated by this reference. 23 21. As previously mentioned, in paragraph 19, of this declaration, on February 23, 24 1999, I sent to Mr. Jeff van den Eikhof, Engineering Assistant, City of San Luis Obispo a letter 25 expressing concerns regarding plans for the Andrews-Conejo Storm Drainage project. In that 26 letter I asked Mr. van den Eikhof to explain what measures were being taken to prevent the new 27 structure from being filled with rocks, debris and then diverting storm water. I also made a 28 request that the new structure inlet be verified to operate under severe(rock and debris blocking 10 DECLARATION OF JAMES GARING IN SUPPORT OF PLA.DMFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT; OR IN THE ALTERNATFVF F^D SUMMARY ADJUDICATION I grating) conditions. A true and correct copy of my letter to Mr: van den Eikhoff dated February 2 23, 1999 is attached as Exhibit K to the exhibit package filed concurrently herewith and 3 incorporated by this reference. 4 22. In 1999 the City Council of the City of San Luis Obispo adopted by Resolution 5 No. 8917 new Engineering Standards, At Plate 1010 (Page 6) under c. "Storm Drains", which 6 set the standards, it indicates the following: 7 "All underground structures shall be provided with an alternate surface area that will safely carry off storm waters should the 8 structure become blocked. The surface area shall not be obstructed 9 in such a way as to divert or block storm water endangering adjacent development." 10 I l A true and correct certified copy of Resolution No. 8917 (1999 Series) and a true and correct 12 copy of the relevant sections of the Engineering Standards adopted by Resolution No. 8917, are 13 attached as Exhibit L to the exhibit package filed concurrently herewith and incorporated by this 14 reference. 15 23. On May 12, 1999, Councilmember David Romero (former Public Works 16 Director,and present Mayor of the City of San Luis Obispo)indicated in a memo to John Dunn, 17 City Manager that he believed the design of the inlet structure as shown on the plans would not 18 provide sufficient flow capacity to meet the design criteria for protection of properties subject to 19 flooding and that the design did not meet the City's own standards. A true and correct copy of 20 the May 12, 1999 Memorandum from Dave Romero to John Durm is attached as Exhibit M to 21 the exhibit package filed concurrently herewith and incorporated by this reference. I agree with 22 the opinion expressed by Mr. Romero above. 23 24. On June 7, 1999,Dave Romero (former Public Works Director, and Mayor of the 24 City of San Luis Obispo) wrote a Memorandum to John Dunn, City Manager. In part that 25 Memorandum to Mr. Dunn indicates the following: 26 "My sources of information are that neither Jim Garing, or the 27 neighbors are satisfied that the design adequately protects properties from flooding. A single rock catcher might fill up with 28 rocks during a heavy storm, or the creek might become unstable between the rock catcher and the Hanson culvert entrance and H DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE FOP SUMMARY ADJUDICATION I block that entrance, or trash or debris might block the entrance. All of these circumstances could lead to a repeat of the 2 downstream flooding of the neighbors. I believe our design should 3 not only meet the technical requirements for capacity, but should allow for contingencies which might occur in a real world 4 situation." 5 6 A true and correct copy of the June 7, 1999 Memorandum from Dave Romero to John Dunn is 7 attached as Exhibit N to the exhibit package filed concurrently herewith and incorporated.by this 8 reference. I agree with the comments and opinions expressed by Mr. Romero above. 9 25. On March 11, 2004 Michael D. McCluskey, P.E. (Public Works Director of the 10 City of San Luis Obispo) wrote a letter to Steven Secrest. In that letter, Mr. McCluskey in part I I indicated that the inlet structure to the Andrews-Conejo Storm Drainage Improvements had been 12 inadvertently constructed 1.18 feet higher than called for on the construction plans. On page two 13 (2)of said letter, Mr. McCluskey wrote the following: 14 "...Due to this change, storm water does not enter the recently constructed storm drain system as readily as it was designed to 15 do." A true and correct copy of the above-mentioned letter dated March 11, 2004, from Michael 16 McCluskey to plaintiff; Stephen Secrest is attached as Exhibit P to the exhibit package filed 17 concurrently herewith and incorporated by this reference. I agree with the elevation difference 18 addressed by Mr. McCluskey and have verified the elevation difference stated with my own 19 survey crew as shown on the topographic survey by my office dated December 10,2010. 20 26. It is my opinion that the City of San Luis Obispo had a duty to comply with its 21 own standards for design and construction of underground structures, including the 22 Andrews/Conejo Bypass project. The City Council adopted on February 5, 1991 by Resolution 23 No. 6930 standards which requires and states the following: 24 "All underground structures shall be provided with an alternate 25 surface area that will safely carry off storm waters should the 26 structure become blocked, The surface area shall not be obstructed in such a way as to divert or block storm water endangering 27 adjacent development." 28 The same standard was still in effect as of January 2003. 12 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT;OR IN THE ALTFRNe7?%M- SUIv MARY ADJUDICATION I The Andrews-Conejo Storm Drainage Improvements project was designed and 2 constructed in 1999 and early 2000. Therefore the Andrews-Conejo Storm Drainage 3 Improvements project was subject to the provisions noted above because the Andrews-Conejo 4 Storm Drainage Improvements project is an underground structure. The underground structure 5 portion of this project includes approximately 1170 lineal feet of double, 36" inside diameter 6 storm drains (approximately 2300 lineal feet total) plus underground portions of junction boxes 7 and the underground portion of the inlet structure. 8 Because the Andrews-Conejo Storm Drainage Improvements project includes 9 underground structures and the requirement noted above that"All underground structures shall be 10 provided with an alternate surface area ....", it is my opinion that an alternate surface area that 11 will safely cant'off storm waters should have been provided. 12 As noted in paragraph 9 above, the City has a surface right over the "12' Drainage 13 easement". The City should have utilized the "12' Drainage easement" as the alternate surface 14 area that will safely cant'off storm waters should the structure become blocked. 15 My inspection of the inlet structure area of the Andrews-Conejo Storm Drainage 16 Improvements project indicates that there is no other alternate surface area available which has 17 any public right attached to it that will safely carry off storm waters. 18 It is my opinion that, in order to comply with long published and adopted engineering 19 standards, which also reflect the standard of reasonableness in the design of such systems, the 20 Andrews-Conejo Storm Drainage Project required an alternate surface area to cavy off storm 21 waters if the structure became blocked and that not to provide such an area is unreasonable. 22 27. The City Engineering Department continued to update Engineering Standards. 23 The January 2003 edition of those Engineering Standards at Plate 1010 (Page 6) indicates 24 (under c. "Storm Drains")the following: 25 "All underground structures shall be provided with an alternate surface area that will safely carry off storm waters should the 26 structure become blocked The surface area shall not be obstructed 27 in such a way as to divert or block storm water endangering adjacent development." 28 13 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT;OR IN THE ALTERNATNF Fnn SUMMARY ADJUDICATION I A true and correct certified copy of the above-mentioned, relevant page of the City of San Luis 2 Obispo Engineering Standards January 2003 edition is attached as Exhibit O to the exhibit 3 package filed concurrently herewith and incorporated by this reference. The firm of Garing, 4 Taylor & Associates, Inc. prepared design plans dated August 27, 2007, for construction of 5 improvements within the IT Drainage easement created by Tract No. 92, which were submitted 6 to the City. It is my opinion that these plans comply with city engineering standards which were 7 adopted by the City Council as mentioned previously in this declaration. The City is preparing 8 new plans for construction of improvements within the 12' Drainage easement created by Tract 9 92 adjacent to the Secrest property and on the Wilson property. These improvements are subject 10 to the requirements indicated above which require an alternative surface area that will safely 11 carry off storm waters should the structure become blocked. The new plans as shown in the 12 Wallace Group Preliminary Design Study, include a flood wall along the Easterly property lines 13 of Conejo property owners, including a mitigation for cross fencing, which is quite similar to the 14 wall which was designed in that location for the City of San Luis Obispo by my firm. 15 28. On February 18, 1999, I received preliminary plans from the City of San Luis 16 Obispo for the Andrews-Conejo Storm Drainage Project (a true and correct copy attached to the 17 exhibit package filed herewith as Exhibit J). After review of those plans, I sent a letter dated 18 February 23, 1999, expressing my concerns regarding the preliminary design to Jeff Van den 19 Eikhof of the City. The concerns that I voiced were that the existing rock catcher ("ROCK 20 CATHCHER'l had been filled with rocks and debris in the past and that in-service conditions 21 would likely block most of the bar openings,resulting in a diversion of drainage water. 22 29. On April 21, 1999 Mr. Van den Eikhof wrote a letter back to me indicating that 23 the designed total opening area on the inlet structure has been increased by 11%and he reassured 24 me that it was reconfigured so that flow could go in the top(a true and correct copy of the plans 25 is attached to the Exhibit Package herewith as Exhibit L The 1.1% increase stated by Mr. Van 26 den Eikhof was far below the increase in size that I had expected, given that my earlier letter had 27 indicated that I expected that most of the bar openings would be blocked. 28 14 DECLARATION OF JAMES GARING IN SUPPORT OF PLAIN'T'IFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT:OR IN THE ALTERNATWF WN0 SUMMARY ADJUDICATION f I Mr. Van den Eikhof also indicated that during the summer of 1998 the rock catcher 2 ("ROCK CATCHER'S had been changed, as noted above- 3 30. The Andrews-Conejo Storm Drainage Project was constructed in late 1999 and 4 early 2000 (See correspondence for Michael McCluskey dated March 11, 2004, a true and 5 correct copy attached as Exhibit P to the exhibit package filed herewith, incorporated by this 6 reference). 7 The new inlet to the Andrews-Conejo Storm Drainage Project was not constructed in 8 accordance with the approved plan according to City records(See Exhibit P). 9 Because the new inlet was constructed too high and.drainage water could therefore not 10 flow into the top of the new inlet, the drainage water had to either go through the grate, or if it 11 could not do .so, the drainage water would be diverted North and West to the back yards of 12 property on Conejo Avenue. 13 31. Photographs presented in The Wallace Group, August 21, 2008 Andrews Creek 14 Bypass Deficiency Study show that the bar spacing on the inlet structure which was constructed 15 too high in late 1999 through early 2000, remained unchanged between 2000 and 2008. The 16 same photographs also show that the bar spacing on the raised portion of the"ROCK GUARD", 17 which was added in the summer of 1998, did not change over the same period. The photograph 18 in the August 21 Wallace Group report, on page 7 also shows the steel plates that were added to 19 the original `ROCK GUARD" all the way across the bottom of the "ROCK GUARD", totally 20 obstructing the lower 1.3 feet of the structure. The lower 1.3 feet of this structure had previously 21 been an open bar grate as previously noted (True and correct copies of these photographs are 22 attached to the exhibit package filed herewith as Exhibit AA,AAl & AA2, incorporated by this 23 reference). 24 32. According to the Declaration of Jay Walter (January 31, 2011), these steel plates 25 were installed prior to the flooding event of December 31,2004. 26 33. The City was well aware that this watershed often developed a large amount of 27 debris. 28 15 DECLARATION OF JAMES CARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CRY'S MOTION FOR.SUNIIv1ARY JUDGMENT, OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION I As flood flow increases, masses of debris can break loose and cause a wall of water and 2 debris to surge downstream until another obstruction is encountered(such as the trash rack for the 3 Andrews-Conejo Storm Drainage Project); (See Flood Plain Information San Luis Obispo Creek 4 and Tributaries Vicinity of San Luis Obispo,November, 1974, a true a correct copy is attached to 5 the exhibit package file herewith as Exhibit BB,incorporated by this reference.) 6 In a City Council Agenda Report of May 2, 1995, (See Exhibit Y, which is a true and 7 correct copy attached to the exhibit package herewith, incorporated by this reference) the 8 following items(among many)were presented to Council: 9 51) City Wide- Debris removal on streets 1000 cubic yards of sediment. 10 52) North End of San Luis Drive- Debris removal in roadway from hill slide 11 and plugged drain. 300 cubic yards. 67) 1451 Andrews Street— Remove 50 cubic yards of rocks and 12 (at"ROCK CATCHER") debris from channel, restore flow of drainage. Flooding to homes. 13 34. The Wallace Deficiency study identifies five deficiencies in the existing drainage 14 system on pages 12 through 13 of that study. One of these deficiencies (number 5)is the lack of a 15 safe overflow path. In addition to standard civil engineering practice to provide a safe overflow 16 path when previously existing creeks are changed into subsurface structures,the City of San Luis 17 Obispo has adopted a series of policies which address the need for safe overflow paths which do 18 not endanger adjacent properties. In June, 1983, the San Luis Obispo City Council adopted a 19 Flood Management Policy. A true and correct copy of the relevant pages of that policy are 20 attached as Exhibit F to the exhibit package filed concurrently herewith and incorporated by this 21 reference. 22 Page A-2,item 8. of said Flood Management Policy indicates the following: 23 "All underground structures shall be provided with an alternate 24 surface area that will safely carry off storm waters should the structure become blocked. The surface area shall not be obstructed 25 in such a way as to stop, or cause to be endangered by storm water, 26 adjacent development." 27 28 16 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CrMS MOTION FOR SU AARY JUDGMENT; OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION 1 35. On February 5, 1991, Engineering Standards were adopted by City Council 2 Resolution No. 6930. On Plate 1060, Paragraph c, "Storm Drains", (which set the standards 3 required), it states the following: 4 "All underground structures shall be provided with an alternate 5 surface area that will safely cavy off storm waters should the structure become blocked. The surface area shall not be obstructed 6 in such a way as to divert or block storm water endangering adjacent development." 7 8 A true and correct certified copy Resolution No. 6930 and a true and correct copy of the relevant 9 pages of those Engineering Standards and are attached as Exhibit G to the exhibit package filed 10 concurrently herewith and incorporated by this reference. 11 36. The above noted Engineering Standards were revised in April, 1995. Plate 1060 12 of those standards under c. "Storm Drains"indicate the following: 13 "All underground structures shall be provided with an alternate surface area that will safely carry off storm waters should the 14 structure become blocked. The surface area shall not be obstructed in such a way as to divert or block storm water endangering 15 adjacent development." 16 A true and correct certified copy of the City Standard as amended in April, 1995 is attached as 17 Exhibit H to the exhibit package filed concurrently herewith and incorporated by this reference. 18 19 It is my opinion that the standards noted above establish the minimum standard of care and the 20 reasonableness standards applicable to construction of underground structures in the City of San 21 Luis Obispo. 22 37. At the City of San Luis Obispo City Council Meeting of June 18, 1996, former 23 24 Councilmember Dave Romero (former Public Works Director, former Mayor of the City of San 25 Luis Obispo),while discussing drainage issues in the Cazadero Street,Conejo Stmt area said: 26 "For the last 20 years,perhaps, we have had a standard whereby when the inlet to a pipe was in a depressed condition and so, if it 27 flooded if it failed then it would flood houses,we would call for an 28 overflow within our drainage easement..." 17 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUM)AARY JUDGMENT; OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION I 11A true and correct copy of the June 18, 1996 minutes is attached as Exhibit I to the exhibit 2 package filed concurrently herewith and incorporated by this reference. This testimony supports 3 my opinions regarding the necessity for a safe overflow path. It is my opinion, based upon my 4 investigation, education, and experience, that the raised grate and steel plating which were 5 constructed in the summer of 1998 is subject to clogging, and is a new, higher obstruction in the 6 channel; and that the placement, in late 1999 and early 2000, of the Bypass Structure and Trash 7 Rack made the situation worse, and increased the obstruction of water and debris,diverting water 8 and debris towards the Plaintiffs' property- 9 38. In the early morning of December 31, 2004, a moderate rainfall event, identified 10 by City Public Works Director Jay Walter as a one or two year storm, occurred on the Central I 1 Coast of Califomia. At the "ROCK CATCHER" and the inlet to the Andrews-Conejo Storm 12 Drainage Project, rocks, sand and debris accumulated against the vertical bar gratings of both 13 structures. Debris accumulated against the Northerly side of the Trash Rack and inlet. A large 14 quantity piled to the elevation of the top of the grate structure, deflecting drainage water through 15 the "notch" in a Northerly direction, then the flood waters flowed.Westerly to the Easterly fence 16 of Secrest and the Northerly fence of Wilson(a true and correct copy of a photograph showing the 17 "notch"is attached as Exhibit CC, incorporated herewith. 18 39. Based upon my investigation, education and experience, it is my professional 19 opinion that substantial factors in the cause of flood damage to the Secrest property on December 20 31, 2004 include the following substantial changes to the drainage system: 21 A. The raising of the `ROCK CATCHEr" discussed above substantially 22 increased the obstruction in the Andrews Creek Channel. In fact, because the 1998 addition to 23 the `ROCK catcher" was much higher than the escape route at the resulting notch, as soon as the 24 `ROCK catcher" became plugged with debris, drainage water which would have otherwise 25 flowed over the top of the original "ROCK catcher" and then to the opening of Hansen inlet 26 instead was diverted to the Secrest property as previously described. Because of the forgoing, 27 the raising of the "ROCK Catcher" in 1998 was a substantial cause of the December 31, 2004 28 Is DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT;OR IN THE AT TPVuATI T - -- SUMMARY ADJUDICATION I flooding of the Sccrest property and represents an unreasonable obstruction and diversion of the 2 channel. 3 B. The placement of the inlet to the Andrews Bypass created an obstruction in 4 the middle of the Andrews Creek Channel just upstream of the "ROCK CATCHER" and is 5 unreasonable. It was not constructed in accordance with the approved plan, but was placed over a 6 foot higher than specified, precluding the option of drainage water entering the top of the 7 structure before overflow. In addition, higher placement of the inlet exascerbated the obstructive 8 character of the inlet, because the obstruction occupied more of the available channel area than 9 the inlet would have, had it been constructed according to the approved plan. Because drainage 10 and debris could not go into the inlet, debris accumulated in a large pile on the North side of the I 1 inlet bars, deflecting drainage water toward the notch in the North concrete wall of the 'ROCK 12 CATCHER'. The creation of the notch was unreasonable because it created a diversion path 13 directing water and debris toward the Plaintiffs' property. The cumulative effect of these changes 14 was to force water from entering the Earth channel and the Hansen inlet, and directing it toward 15 Plaintiffs' property. 16 C. Because of the obstruction/diversion and because drainage water could not 17 go into the top of the structure prior to escape as previously noted, the velocity of the water 18 passing the inlet was increased because the channel area was greatly reduced at the inlet The 19 higher velocity of the drainage water and the obstruction of the channel caused the water to 20 escape as noted. 21 D. The bar spacing on the Trash Rack to the inlet to the Andrews-Conejo 22 Stone Drainage Project is one third to one fourth the Federal Highway Administration, a widely 23 recognized standard of reasonable design and maintenance, recommended spacing of 18"to 24". 24 In addition, the area of the trash rack (bars) is only 50% of the FHWA recommended area. 25 Finally, the vertical bars of the trash rack are so high that water is unlikely to enter through the 26 top. The narrowly-spaced vertical bars cause rapid accumulation of trash and debris, preventing 27 water from entering the bypass system. According to FHWA, surface area of a trash rack should 28 be ten times the surface area of the inlet it is protecting. The area of the existing trash rack 19 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATP-M WND SUMMARY ADJUDICATION . I protecting the inlet is only about 5 times the area of the inlet. This is identified as deficiency 2 number 3 in the Wallace Deficiency Study. 3 E. The abutments are lower than the top of the "ROCK catcher". When the 4 "ROCK catcher" is filled with debris, an event which should be anticipated, flowing water flows 5 out a new path at the lowest point in the abutment. In the"2005" flood (December 31, 2004)that 6 point was the right abutment which is 8" lower than the top of the rock catcher, (Wallace Group 7 Andrews Creek Bypass Deficiency Study, August 21, 2008,pg 12,para 3,4). 8 F. The placement of steel plates across the bottom of the Rock catcher 9 sometime before the 2004 event, in an unsuccessful and unreasonable effort to address the higher 10 than designed entrance to the new inlet structure, completely blocked the flow of water and debris 1.1 through the lower 1.3 feet of the Rock catcher,which also caused water and debris to be diverted 12 from the downstream Earth channel which would have flowed toward the Hansen inlet. 13 G. The failure to provide an alternate surface area that would safely carry off 14 storm water should the structure become blocked was unreasonable. This City standard was in 15 effect during the time that the Andrews Bypass Project was designed and constructed and the City 16 was well aware that the watershed routinely produces large amountys of debris. 17 40. In summary, based upon my knowledge, experience, education and investigation, 18 and for the reasons it is my opinion that the following significant changes to the drainage system, 19 which occurred after 1995 and before December 31,2004,were unreasonable: 20 A. Raising the"ROCK GUARD"trash rack or grate by 1.3 to 1.6 feet. 21 B. Placing 1.3 foot high steel plates on the bottom of the "ROCK GUARD" 22 grate,totally blocking the bottom 1.3 feet of the grate. 23 C. Failing to extend the concrete headwalls resulting in the notch, or take 24 other protective action such as the post-2004 temporary placement of sand bags in the notch, 25 divertinglobstructing water and debris toward Plaintiffs' property and from re-entering the 26 Earthen channel. 27 D. Constructing the trash rack or grate (in A above) with bar spacing at one 28 third to on fourth the FHWA recommended spacing. 20 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT C1TY'S MOTION FOR SUMMARY JUDGMENT; OR-IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION . I E. Insertion of the Andrews-Conejo Storm Drainage Project inlet and its 2 associated trash rack or grating into the middle of the Andrews Creek Channel. 3 F. Constructing the inlet grating for the Andrew-Conejo Stone Drainage 4 Project with bar spacing at one third to one fourth the FHWA recommended spacing. 5 G. Constructing the inlet and grating for the Andrews-Conejo Storm Drainage 6 Project 1.18 feet higher than the plans indicate. 7 H. Constructing the inlet and grating for the Andrews-Conejo Storm Drainage 8 Pmject with only about 50%of the recommended grating area. 9 I. Failing to provide an alternate surface area that would safely carry o ff 10 storm water should the Bypass Inlet become blocked. 11 41. In addition to all of the above, I have reviewed the list of deficiencies which is 12 presented in the Wallace Group Andrews Creek Bypass Deficiency Study, which deficiencies 13 were in place prior to December 31,2004, and 1 am generally in agreement with them. 14 I declare under penalty of perjury under the laws of the state of California that the 15 16 foregoing is true and incorrect and that called to testify concerning the same I could and would 17 do so truthfully and competently. 18 Executed this 4th day of April, 2011,at San Luis Obispo, Califomia. 19 20 21 ROB J GARING 22 23 24 25 26 27 28 21 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT; OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION 4 1 PROOF OF SERVICE BY PERSONAL DELIVERY 2 3 STATE OF CALIFORNIA,COUNTY OF SAN LUIS OBISPO: 4 I declare as follows: 5 I am over 18 years of age and not a party to the within action; my business address is 67 6 Monterey Street, San Luis Obispo, California 93401; 1 am employed in San Luis Obispo County, 7 8 California. 9 On April 6,2011,I served the following: 10 ECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION T I l DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT; OR IN THE 12 ALTERNATIVE FOR SUMMARY ADJUDICATION on the interested parties in Superi 13 14 Court of San Luis Obispo County Case No. CV 060225 by personally delivering a copy of said 15 document(s)to:the following address(es): 16 Jay Hieatt,Esq, 17 Molly E.Thurmond Hall,Meatt&Connely,LLP 18 1319 Marsh Street,Second Floor San Luis Obispo,CA 93401 19 Facsimile:(805)5445329 20 Counsel for Defendant City 21 22 I declare under penalty of perjury under the laws of the State of California,that the foregoing i 23 true and correct and that this declaration was executed on 24 April 6,201.1,at San Luis Obispo,California.. 25 26 ;� Marsha G.Forrest 27 28 I PROOF OF SERVICE 2 I am a resident of the State of California,over the age of eighteen years, and not a party 3 to the within action. My business address is 679 Monterey Street, San Luis Obispo, CA 93401. On April 6, 2011, I served the following document(s) by the method indicated below: 4 DECLARATION OF JAMES GARING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT CITY'S MOTION FOR SUMMARY JUDGMENT; OR 1N THE 5 ALTERNATIVE FOR SUMMARY ADJUDICATION 6 (VIA FACSIMILE)by transmitting via facsimile on this date from fax number(805) 7 541-6640 the document(s) listed above to the fax number(s)set forth below. The transmission was completed before 5:00 p.m. and was reported complete and without 8 error. The transmission report,which is attached to this proof of service,was properly 9 issued by the transmitting fax machine. Service by fax was made by agreement of the parties, confirmed in writing. The transmitting fax machine complies with Cal.R.Ct 10 2003(3). 11 (MAIL)by placing the documents)listed above in a sealed envelope with postage 12 thereon fullyprepaid, in the United States mail at San Luis Obispo, California addressed as set forth below. I am readily familiar with the firm's practice of collection and 13 processing of correspondence for mailing. Under that practice,it would be deposited with the U.S. Postal Semce on that same day with postage thereon fully prepaid in the 14 ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage In date is more than one 15 day after the date of deposit for mailing in this declaration. 16 (CALIFORNIA OVERNIGHT)by placing the documents) listed above in a sealed 17 ® envelope(s)and consigning it to an express mail service for guaranteed delivery on the next business day following the date of consignment to the address(es)set forth below. 18 Bart Merrill,Esq. and 19 Daniel E.Henderson,III Dean Olsen,Esq. Henderson&Borgeson Moms,Polich&Purdy 20 201 N.Calle Cesar Chavez,Suite 105 1055 West 7th Street,24th Floor Fos Office Box 4460 Los Angeles,CA 90017 21 Santa Barbara,CA 93140 Facsimile: (213)488-1178 22 Facsimile: (805)962-7223 Counsel for Defendant Wilson Counsel for Defendants Mott 23 24 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on.Apri16, 2011, at San Luis Obispo, California. 25 26 S 27 arsha G. Forrest 29 I 11WILLIAM S. WALTER—SBN 73061 A PROFESSIONAL CORPORATION 2 679 Monterey Street San Luis Obispo, CA 93401 FILED 3 Telephone: (805) 541-6601 4 Facsimile: (805)541-6640 AM — 3 2011 5 Attorneys for Plaintiffs, Stephen Secrest couRT and Jeanne Secrest t, - : 6 �.ten,.!v Cfr ' 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF SAN LUIS OBISPO 10 11 STEPHEN SECREST, and LEAD CASE NO.c CV 060225 12 JEANNE SECREST, Non Lead Case No.: CV 080733 13 Plaintiffs 14 SEPARATE STATEMENT OF V. UNDISPUTED MATERIAL FACTS IN 15 CITY OF SAN LUIS OBISPO, and OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR 16 Does 1 through 100, inclusive, SUMMARY JUDGMENT OR IN THE 17 ATLERNATIVE FOR SUMMARY 18 ADJUDICATION Defendants. 19 Date: April 20,2011 Time: 9:00 A.M. 20 Dept.: 8 CITY OF SAN LUIS OBISPO 21 CONTINUANCE REQUESTED 22 Cross-Complainant PURSUANT TO CCP§ 437c(h) 23 V. Judge: Hon. Dodie Harmon 24Trial Date: May 23,2011 MARK MOTT and KATHY MOTT, and 25 DOES 1-100, inclusive Actions Filed: March 22, 2006 and 26 Cross-Defendants August 1, 2008 27 28 - 1 — SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 UNDISPUTED MATERIAL FACTS AND EVIDENCE: 21 22 1. The storm event on December 30-31, Depo. Jay Walter, Public Works Director, 23 2004 was a minor storm, "much less City of San Luis Obispo, Exhibit DD, p. than"a one or two year storm. 44:2-10; Garing Declaration, para. 38, p 18, 24 Ex. CC.. 25 2. From upstream to down stream, the Wallace Group Deficiency Study, Exhibit S, 26 drainage system consists of the pp. 2-6; Garing Dec. para. 6 (a),p.4. 27 following components: First, a 28 watershed consisting of approximately - 30— SEPARATE 30— SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I I 100 acres. 2 3. The second component of the drainage Wallace Group Deficiency Study, Ex.S, p 6; 3 system consists of Andrews Creek. Garing Dec. para 6 (b), p. 4. 4 4. The third component of the drainage Wallace Group Deficiency Study, Ex.S, pp. 5 system consists of the Andrews Bypass 6-7 with photographs; Garing Dec. para 6 6 or Bypass structure, Which consists (1) (c)(1), (2), (3)9 (4), p. 4. 7 an irregular-shaped horizontal concrete 8 orifice equipped with a welded pipe 9 Trash Racks (2) just down stream is a 10 Rock Catcher or weir built across the 11 12 Andrews Creek channel (Rock Catcher) 13 ;(3) a rectangular concrete box culvert at 14 the based of the orifice; (4) 1170 feet of 15 double 36 inch smooth-walled high 16 density polyethylene pipe with an outlet 17 in San Luis Creek. 18 5. The fourth component of the drainage Wallace Group Deficiency Study, Ex. S, p. 9; 19 system consists of an Earth channel Garing Dec., para. 6 (e), p. 4. 20 downstream of the Bypass structure 21 which conveys flows to the entrance to 22 the 36 inch storm drain on the Hansen 23 property and referred to as the Hansen 24 inlet. 25 26 27 28 6. The fifth component of the drainage Wallace Deficiency Study, Ex S, pp. 9-10; - 31 — SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I I system consists of an Overflow Path Gaiirig Dec. para. 6 (f), 9, 10, 11,p 4:24-25. 2 which includes the, drainage easement 3 created by Final Tract Map No. 92. 4 7. The Wallace Group Deficiency Study Wallace Group Deficiency Study, Ex. S, pp. 5 identifies five drainage system 12-13; Depo. Jay Walter, Ex. DD, pp. 16: 9— 6 deficiencies arranged from upstream to 19:3.Depo. Barry Rands, Ex. HH, p 28:5-14; 7 downstream, based upon the 38:8-11. 8 observations and analysis presented in 9 the report, and itemized below. Public 10 11 Works Director Jay Walter, and the 12 author of the study, who are qualified 13 engineers, have agreed with the five 14 deficiencies in the drainage system. 15 8. 1. Inadequate debris Wallace Group Deficiency Study, Ex. S P. 16 management: With a watershed that is 12. 17 susceptible to landslide, debris flows, 18 and channel erosion, the current level of 19 debris management is particularly 20 inadequate. There are no sediment or 21 debris control structures in the natural 22 watershed, nor have there apparently 23 been any efforts to halt erosion of the 24 stream channel. 25 9• Wallace Group Deficiency Study, Ex. S, p. 26 2. Inefficient bypass structure: under 12- 27 the best of conditions, the current bypass 28 orifice inlet is designed to intercept approximately 70% of the capacity of the SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I underground pipe. When debris accumulates 2 on the trash rack, that efficiency drops even further. The orifice should be enlarged and 3 streamlined to take full advantage of the capacity of the underground portion of the 4 system. ... 5 6 Wallace Deficiency Study, Ex. S,p. 12. 7 10. 8 3. Trash rack inadequacy: According 9 to FHWA [note omitted], the surface area of a trash rack should be ten times the surface 10 area of the inlet it is protecting. The area of the existing trash rack protecting the orifice 11 is approximately 5 times the area of the inlet. 12 In addition, the vertical bars of the trash rack are so high that water is unlikely to enter 13 through the top. Finally, the narrowly- 14 vertical bars cause rapid 14 accumulation of trash and debris, preventing 15 water from entering the bypass system. The 6" bar spacing is one-third to one-fourth the 16 FHWA recommended spacing of 18' to 24". 17 Trash racks designed to pass small-sized debris and deflect larger debris will stay 18 open longer. 19 20 11. Wallace Deficiency Study, Ex. S,p. 12. 21 4. Rock catcher vulnerability: The 22 rock catcher also employs vertical bars, but in this case the vertical bars are designed to 23 accumulate debris to prevent it from 24 continuing downstream. Its weak point, however, is that the abutments are lower 25 than the top of the rock catcher. When the rock catcher is filled with debris, flowing 26 water carves out a new path at the lowest 27 point it can find. In the 2005 flood, that low point was the right abutment, which is 8" 28 lower than the top of the rock catcher, as shown in the photo below. Note that the SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I gap has been temporarily filled with 2 sandbags. 3 Wallace Deficiency Study, Ex. S,p. 13 4 12. 5 6 5. Lack of a safe overflow path: Because of the high potential for debris 7 flows and obstruction to the primary drainage paths and inlets, the lack of an 8 unobstructed overflow path is critical. The 9 current situation with fencing across all possible overflow paths has made the 10 problem even worse. Floodwaters will find a weak spot in one of those fences and force 11 a collapse, possible[y] sending a cascade of 12 water into someone's property." 13 14 13. Debris has been and will continue to be Wallace Deficiency Study, Ex. —p. 13,p. 6.. 15 a significant part of storm water flows in 16 Andrews Creek. Based on historical 17 performance and projected future flows, it 18 appears that the system provides protection for 19 no more than the 10-year stone event. This 20 would mean that in any given year, there is a 21 10% chance for flooding to occur. The capacity 22 of the creek just upstream of the bypass 23 structure is over 200 cubic feet per second, 24 which is sufficient to convey the 100-year flood 25 event without overtopping the banks. 26 14. City Public Works Director Jay Jay Walter Depo., Ex. DD,pp. 16: 9— 19:3. 27 Walter agrees that the five deficiencies 28 identified in the Wallace Group Deficiency SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I Study existed prior to the December 30-31, 2 2004 event which caused water and debris to 3 enter plaintiff's property. 4 15. Public Works Director Jay Walter Jay Walter Depo,Ex. DD pp. 36—38.,pp. 5 inspected the properties after the Dec. 2004 6 event, and observed that water and debris did 7 not reach the Earth channel and the Hansen 8 inlet, but were diverted towards Plaintiffs' 9 Property. 10 11 16. Barry Rands, qualified expert and Rands Depo, Ex., HH, pp.62: 17-63:5. 12 author signing the Wallace Deficiency Report, 13 determined that unlike the 1995 event, water 14 and debris never clogged the Hansen Inlet, but 15 instead flowed from the upstream Rock catcher 16 and Inlet structure outside of the Earth channel 17 toward Plaintiffs' property. 18 17. Since the March 1995 event, the Garing Dec., para.. 15, 16, 17, 18, 19, 20, 21, 19 City of San Luis Obispo has made numerous 23 (Exh. M),22, 23, 35, 36, 42. 20 changes to the drainage system. 21 18. The changes to the drainage system Garing Dec., paras. 39, p. 18:18 through para 22 since the March 1995 event were substantial 40,p. 21:10. 23 and unreasonable factors which caused water 24 and debris to flow onto the Plaintiffs' property 25 during the Dec. 2004 event. 26 27 19. Before making changes to the Wallace Deficiency Study, Ex. S, pp. 6, 4. 28 drainage system after the March 1995 event, Garing Dec. para 18 (p. 10), para. 34 (p. 9), - 35 — SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I 1 the City of San Luis Obispo knew, or should para. 38 (p.9, Ex. CC). 2 have known, that the water shed would 3 produce sign cant quantities of debris directed 4 towards the drainage structures. 5 20. The inspection and photographs of Garing Dec., para. 15, pp 8:24-9:2; Exs. T 6 the Rock catcher taken on March 20, 1997, and U. 7 demonstrate that the Rock catcher was in 8 substantially the same conditions as indicated 9 on the As Built Plans of December, 1987. 10 11 21. In July, 1996, the City Council Garing Dec., para. 16,p. 9:3-6, Ex. V. 12 budgeted $30,000 to make "Minor 13 improvements to the drainage channel behind 14 Conejo Avenue, that is, changed to the Rock 15 catcher. 16 22. After 1995, Barbara Lynch, current Barbara Lynch Depo, 26: 13—27:13,Ex. FF. 17 City Engineer, was asked to design and 18 construct an extension of pipes above the 19 concrete weir, Trash rack, above what it was 20 originally constructed at with the tract, but 21 conducted no drainage studies before doing so. 22 23. Improvement plans signed by Garing Dec. para. 17, p. 9; para. 18, p. 10:1- 23 Wayne Peterson, City Engineer, dated August 5; Ex. W. 24 6, 1997, "Storm Drain Improvement Project: 25 Wolfe Property Rock Catcher, which is the 26 same structure as the Rock catcher, providing 27 for adding concrete walls on top of the existing 28 -36— SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I Rock catcher concrete walls and adding a steel 2 grate on top of the existing steel grate which 3 spanned Andrews Creek, raising the top of the 4 original grate by 1.3 feet on the south side and 5 1.6 feet on the north side of the original Rock 6 catcher. 7 24. These changes to the Rock catcher Garing Dec., para. 15, Ex. T, U, pp 8-9; para 8 were made by the City. 17, Ex. W,p. 9. 9 10 25. The effect of these changes to the Garing Dec. para 17,p.17:6-28,para 17. Rock catcher was that when it becomes 11 12 blocked with debris, a low area on the right 13 side of the channel allows drainage water to 14 escape the channel, and does not rejoin the 15 downstream Earth channel but flows toward 16 the backyards of the Conejo Avenue 17 Properties, including Plaintiffs' property. 18 26. The changes to the Rock catcher Garing, Dec. p.17:6-28, para 17. 19 created a "notch" where the new concrete wall 20 was constructed on top of the existing concrete 21 wall, which caused water and debris to flow 22 through the notch instead of allowing flow to 23 continue in the Earth channel to the Hansen 24 inlet. 25 27. This new grate unreasonably Garing Dec. 17, pp. 9:6-28; para. 18, pp. 11- 26 blocked flow in the channel and diverted 12. 27 28 drainage waters through the "notch" to Conejo - 37— SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I Avenue properties including the Secrests 2 during the 2004 event. 3 28. In 1999, the City Engineering Garing Dec. para 19,p10:6-17. 4 Division was in the final stage of plan 5 preparation for a storm drain project, known as 6 the Andrews/Conejo Storm Drainage 7 Improvements, the construction of which 8 added what the Wallace Deficiency Study 9 refers to as the irregular-shaped horizontal 10 11 concrete orifice (or inlet structure) equipped 12 with the welded pipe Trash Rack, the 13 rectangular concrete box culvert at the base of 14 the orifice in the pre-existing creek channel, 15 and 1170 feet of pipe with an outlet in San 16 Luis Creek. 17 29. The as built plans for the Andrews- Garing Dec. para 20; Ex. J. 18 Conejo Storm Drainage Improvements, which 19 was constructed in 1999-2000 contained no 20 alternative surface area that would safely carry 21 off storm waters should the structure become 22 blocked. 23 30. On February 23, 1999, Jim Garing Garing Dec., para. 19, p 10., para. 21, p. 11 24 sent correspondence to Jeff van den Eikhof, Ex. K. 25 Engineering Assistant, City of San Luis 26 Obispo, expressing concerns regarding plans 27 28 for the Andrews-Conejo Storm Drainage - 38— SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I project, asking Eikhof to explain what 2 measures were being taken to prevent the new 3 structure from being filed with rocks, debris 4 and then diverting storms water, and requesting 5 that the new inlet be verified to operate under 6 severe (rock and debris blocking grating) 7 conditions. 8 31. On June 7, 1999, David Romero, Garing Dec. para 24, pp.11:23-12:8. Ex. N; 9 10 former City Engineer, Public Works Director, Romero Depo, Ex. H, Ex. E to depo, pp. 30- 11 Mayor and City Council Member, wrote a 31. 12 memorandum to John Dunn, City Manager, 13 advising that neither Jim Garing nor the 14 neighbors are satisfied that the design 15 adequately protects properties from flooding; 16 and that a single rock catcher might fill up with 17 rocks during a heavy storm. 18 32. The Flood Management Policy, and Garing Dec. para. 34 (Ex. F), 35 (Ex. G), 19 Engineering Standards of the City of San Luis 37., pp. para 34, 35, 36, 37,p 16:13 17: 28; 20 Obispo since 1983, 1991, 1995, has provided para. 39 G,pp.20: 13-16. 21 that: "All underground structures shall be 22 provided with an alternate surface area that 23 will safely carry off storm waters should the 24 structure become blocked. The surface area 25 shall not be obstructed in such a way as to 26 divert or block storm water endangering 27 adjacent development." 28 - 39— SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION f 2 33. The lack of a safe overflow path is Wallace Deficiency Study, Ex. S (color 3 identified in the Wallace Deficiency Study as version of City Exhibit),p. 12. 4 deficiency no. 5. 5 34. Standard and reasonable civil Garing Dec. para 34, 35, 36, 37, p 16:13 — 6 engineering practice also requires providing a 17: 28; para. 39 G,pp.20: 13-16. 7 safe overflow path for underground structures 26 lines----- 8 that are subject to clogging. 9 10 35. The Andrews/Conejo Storm Drain Garing Dec. para. 26, p. 12:20 — 13: 21, Ex. 11 project was an underground structure including J. 12 approximately 1170 lineal feel of double, 36 13 inch inside diameter storm drain 14 (approximately 2,300 lineal feet total), 15 underground portions of junction boxes and 16 underground portions of the inlet structure. 17 36. The inlet structure area of the Garing Dec. para 26,p. 12:20— 13: 21. 18 Andrew-Conejo Storm Drainage project does 19 not include an alternative surface area available 20 that will safely carry off storm waters without 21 damaging adjacent properties, including 22 Plaintiffs. 23 37. Final Tract 92 created a surface Garing Dec. para 9 (Ex. C) , 10, 11, 12, Ex. 24 drainage right which could be used as an E, pp. 5:14 — 7: 4; Romero Depo, City Ex. 25 alternative overflow surface area for the B. pp. 16-19 (depo numbering). 26 27 Andrews/Conejo Project. 38. Responding to Plaintiffs' concerns Garing Dec. para 25, p. 12:9-20, Ex. P; Jay 28 -40— SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I about future water damage, Michael Walter Dec., para. 6. 2 McClousky informs Plaintiffs that the inlet 3 structure was not built according to plans, but 4 instead was constructed 1.18 feet higher than 5 called for on the construction plans. 6 39. Before the Dec. 2004 event, metal Jay Walter Dec., para 6; Jay Walter Depo, 753:11-54:5. plates were added to the bottom of the Rock Ex. DD,pp. 8 catcher approximately 1.18 feet. 9 10 40. The 1998 raising of the Rock catcher Garing Dec. para. 39,A,pp. 18:21- 19:2. 11 was much higher than the escape rout at the 12 notch and was an unreasonable obstruction and 13 diversion of the channel, a substantial cause of 14 the Dec. 31, 2004 flooding of the Secrest 15 property, and caused drainage water which 16 would have otherwise flowed over the top of 17 the original Rock catcher and then to the 18 opening of the Hansen inlet. 19 41. The creation of the notch in the Garing Dec.,para 39 B,p. 19:3-15. 20 Rock catcher/weir was unreasonable because it 21 created a diversion path directing water and 22 debris toward the Plaintiff's property. 23 42. The placement of the inlet to the Garing Dec. para. 39 B, p. 19:3-15. 24 Andrews Bypass created an unreasonable 25 obstruction in the middle of Andrews Creek 26 channel just upstream of the Rock Catcher. 27 28 43. The construction of the Inlet Garing Dec.,para 39 B,p. 19:3-15. -41 — SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I structure over a foot higher than specified in 2 the plans precluded drainage water from 3 entering the top of the structure before 4 overflowing. 5 44. The higher placement of the Inlet Garing Dec., para 39 B,p. 19: 3-15. 6 structure exacerbated the obstructive character 7 of the inlet because the obstruction occupied 8 more of the available channel area than the 9 inlet would have had it been constructed 10 according to plans. 11 12 13 45. The construction of the Inlet Rands Depo., Ex.HH,pp. 21:6-10 14 opening higher than originally designed would 15 have exacerbated the problem. 16 46. The Inlet opening was too small and Rands Depo., Ex. HH pp. 21:17—22:7 17 the metal bars were so close together that they 18 were easily clogged so that when filed with 19 debris if constricted the opening. 20 47. The placement of the Inlet structure Rands Depo, Ex HH,pp. 22:21 —23:7. 21 right in the channel would displace the 22 capacity of the channel to carry water. 23 48. The "notch" in the Trash rack Rands Depo, Ex HH,pp. 24:23—25:12. 24 structure during the 2005 flood event resulted 25 in water escaping when the Trash rack became 26 clogged and ended up flooding homes on the 27 28 right side of the channel based upon forensic - 42— SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I engineering review. 2 49. The metal plates at the bottom of the Rands Depo, Ex. HH pp.—25:16-26:10. 3 Rash rack obstructed the flow towards the 4 notch when the Trash rack became blocked. 5 50. The velocity of the water passing the Garing Dec. para. 39, C,p. 19:16-20. 6 Inlet was increased because the channel area 7 was greatly reduced at the inlet, causing the 8 water to escape the channel. 9 10 51. The bar spacing on the Trash Rack Garing Dec. para 39 D,pp.19:21-20:2. 11 to the inlet to the Andrews/Conejo project is 12 one third to one fourth of the Federal Highway 13 Administration standard, a widely recognized 14 standard of reasonable design and 15 maintenance, which recommended spacing of 16 18 to 24 inches. 17 52. The vertical bars of the Trash rack to Garing Dec.,para 39 D,pp.19:21-20:2. 18 the inlet are so high that water is unlikely to 19 enter through the top. The narrowly-spaced 20 vertical bars cause rapid accumulation of trash 21 and debris, preventing water from entering the 22 bypass system. 23 53. According to FHWA standards, Garing Dec., para 39 D, pp. -19:21-20:2. 24 surface area of a trash rack should be ten times 25 the surface area of the inlet it is protecting. 26 27 The area of the existing Trash rack is only about 5 times the area of the inlet. 28 -43 — SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION 1 54. The abutments are lower than the Garing Dec. para 39 E, p 20: 3-7; Wallace 2 top of the Rock catcher. When the Rock Group Deficiency Study, Ex., S p. 12, para 3, 3 catcher is filled with debris, an event which 4. 4 should be anticipated, flowing water flows out 5 a new path at the lowest point in the abutment. 6 In the 2004 event, that point was the right 7 abutment which is 8 inches lower than the top 8 of the Rock catcher. 9 55. The placement of steel plates across Garing Dec.,para 39 F,p. 20: 8-12. 10 the bottom of the Rock catcher sometime 11 12 before the 2004 event, in an unsuccessful and 13 unreasonable effort to address the higher than 14 designed entrance to the new Inlet structure, 15 completely blocked the flow of water and 16 debris through the lower 1.3 feet of the Rock 17 cater, which also caused water and debris to be 18 diverted from the downstream Ear channel 19 which would have flowed toward the Hansen 20 inlet. 21 56, The City unreasonably failed to Garing Dec.,p. 20:13-16; para. 39 G. 22 provide an alternate surface area that would 23 safely cant' off storm water should the 24 structure become blocked, which was a 25 standard in effect during the time that the 26 Andrews Bypass structures was constructed, 27 and the City was aware that the watershed 28 -44— SEPARATE 4— SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I I routinely produces large amounts of debris. 2 57. According to David Romero, Jim Romero Depo, Ex. II,p. 32:15-18. . 3 Garing is a longtime engineer that he has 4 respect for. 5 58. David Romero agreed with the Romero Depo, Ex. II, p. 52:12-53:21, Ex. J 6 statement of Public Works Director Michael to Romero Depo. 7 McCluskey, in an email dated Oct. 21, 2003, to 8 the City Manager, that "Mr. Secrest is 9 10 scared....In truth they all have reason to worry. 11 The system was never well designed. The inlet 12 to the pipe is in a hard-to-get location. Any 13 plugs cause an overflow and the only overflow 14 is through homes downstream." 15 16 59. The City's Flood Insurance Maps Romero Depo, Ex. II, pp. 45:25 —49: 49 (Ex. 17 were prepared under the supervision H to depo.) 18 of David Romero and updated by the 19 City, and show that the Plaintiffs' 20 property is in Zone B, which means 21 that there is a probability that 22 Plaintiffs' property would flood with 23 one foot of water every 100 to 500 24 years. 25 26 60. It is David Romero's opinion that Romero Depo, City Ex. A, 84:21-24. the City did not do an adequate job 27 28 protecting the properties along - 45— SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION I Conejo from flooding. 2 61. The Andrews Conejo project had no Jay Walter Depo., Ex.DD,p. 76:18-77:6. 3 explicit design information or 4 drainage calculations, which is 5 unusual for a City drainage project. 6 7 8 Respectfully submitted, 9 10 DATED: April 4,2011 WILLIAM S. WALTER A PROF7K7 ON 11 12 13 By. ' William S. Walter 14 Attorney _ laintiffs,Stephen and Jeanne Secrest 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -46— SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION 1 PROOF OF SERVICE BY PERSONAL DELIVERY 2 3 STATE OF CALIFORNIA,COUNTY OF SAN LUIS OBISPO: 4 I declare as follows: 5 I am over 18 years of age and not a party to the within action; my business address is 67 6 7 Monterey Stmt, San Luis Obispo, California 93401; I am employed in San Luis Obispo County 8 California. 9 On April 6, 20119 I served the following: SEPARATE STATEMENT O 10 UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN I 1 LUIS OBISPO'S MOTION FOR SUMMARY JUDGMENT OR IN THE ATLERNATIVE 12 13 FOR SUMMARY ADJUDICATION on the interested parties in Superior Court of San Luh 14 Obispo County Case No. CV 060225 by personally delivering a copy of said document (s) to: th 15 following address(es): 16 Jay Hieatt,Esq. 17 Molly E.Thurmond Hall,Hieatt&Connely, LLP 18 1319 Marsh Street,Second Floor San Luis Obispo,CA 93401 19 Facsimile:(805)5445329 20 Counsel for Defendant City 21 22 I declare under penalty of pequry under the laws of the State of California,that the foregoing i 23 true and correct and that this declaration was executed on 24 25 April 6,2011,at San Luis Obispo,California. 26 .. 27 Marsha G.Forrest 28 Proof of service I PROOF OF SERVICE 2 I am a resident of the State of California,over the age of eighteen years, and not a party 3 to the within action. My business address is 679 Monterey Street, San Luis Obispo, CA 93401. On April 6. 20111 I served the fallowing document(s) by the method indicated below- 4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF SAN LUIS OBISPO'S MOTION FOR SUMMARY 5 JUDGMENT OR IN THE ATLERNATIVE FOR SUMMARY ADJUDICATION 6 r- (VIA FACSIMILE)by transmitting via facsimile on this date from fax number(805) `—� 541-6640 the documents)listed above to the fax number(s)set forth below. The 7 transmission was completed before 5:00 p.m. and was reported complete and without error. The transmission report,which is attached to this proof of service,was properly 8 issued by the transmitting fax machine. Service by fax was made by agreement of the 9 parties,confirmed in writing. The transmitting fax machine complies with Ca1.R.Ct 2003(3). 10 I 1 (MAIL)by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid,in the United States mail at San Luis Obispo,California addressed 12 as set forth below. I am readily familiar with the firm's practice of collection and processing of correspondence for mailing. Under that practice, it would be deposited with 13 the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served,service is 14 presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in this declaration. 15 16 ® (CALIFORNIA OVERNIGHT)by placing the document(s) listed above in a sealed envelope(s)and consigning it to an express mail service for guaranteed delivery on the 17 next business day following the date of consignment to the address(es)set forth below. 18 Daniel E. Henderson,III Dean OLsen,Esq. Russell Ruiz,Esq. Moms,Polich&Purdy 19 Henderson&Borgeson 1055 West 7th Street,24th Floor 201 N.Calle Cesar Chavez,Suite 105 Los Angeles,CA 90017 20 Pos Office Box 4460 Facsimile: (213)488-1178 21 Santa Barbara,CA 93140 Facsimile: (805)962-7223 22 23 24 I declare under penalty of perjury under the laws of the State of California that the 25 above is true and correct. Executed on April 6,.2011, at San Luis Obispo, California. 26 17 27 Marsha G. Forrest 28 __ Proof of bervice SECREST CHRONOLOGY BASED UPON REVIEW OF SECREST FILES AND RECORDS 4-14-95. (Garing File) Memorandum from Wayne Peterson, City Engineer to Mike McCluskey concerning meeting with neighborhood residents (Parker, Hanson, Oliver, Schroeder, Moore, and Secrest) who indicated that after the flooding on March 10`x', they wanted the rock catcher modified to encourage the water to stay in the natural drainage path when it becomes blocked with rocks and debris and to avoid diverting water to the right side of the channel and into their homes when it became full; they wanted a diversion wall along their back property lines to contain the water when the drain is over taxed or blocked; they wanted existing pipe capacity increased. The memorandum also references an evaluation of the system 15 years earlier, indicating the existing system can handle about 70 CFS. The design storm (10 year) for the drainage shed is 220 CFS. Bringing it to capacity would require adding a 42 inch and 48 inch pipe paralleling the existing drain system, and would have cost$102,000. 9/28/95. Correspondence from John Wallace and Associates, suggesting that the existing capacity of the City Culvert was insufficient, that the houses had flooded under prior occasions, and that there are opportunities to provide for better drainage solutions. A copy of that correspondence is produced concurrently herewith. 12-3-95 (Garing File) Memo from Steve Secrest to Jim Garing including 8/95 Wallace & Associates drainage calculations. 1 2/17/99 Correspondence to Garing Taylor and Associates including the proposed design for the Andrews/Conejo project, received by Garing Taylor and Associates on February 18, 1999. 4-12-99 (Garing File) City Uniform Design Standards, indicating that new development shall not cause an increase in runoff to the drainage system below the development unless the area of the development is part of an area master plan that has addressed increases in runoff and the water plan has been implement. Plaintiffs do not believe that the City complied with this standard in approving new upstream development. Also requires an alternative surface area and prohibits obstructions. 4-21-99 (Garing File). City correspondence indicating design modifications and representing that it"will significantly reduce the possibility of future flooding problems." 5-4-99 (Garing File) Staff Report Engineering department memorandum, noting the calculations done in 1982 showed that the existing drainage system was not up to current standards; and recognizing the a rock catcher in March of 1995 was overwhelmed by rock and debris causing water to flow around the structure and through the below properties causing significant damage to homes located a 1717 and 1739 Conejo. Garing File photographs showing survey markers and fill. 2 5-12-99 (Garing File) Memo from Dave Romero to John Dunn indicating that Andrews project design does not meet the City own criteria and suggested solutions which would be adequate. 5-18-99. (Garing File) Communication from Jeff van den Ekholf indicating a design that the inlet structure would be parallel with the current creek flows; that top of structure would be left open and approximately 300 mm below the existing rock catcher; which Plaintiffs' do not believe was constructed. 6/24/99. Correspondence from Plaintiffs' counsel hoping that the construction of the project will mitigate the risk of future damage to the Plaintiffs' properties, noting that piecemeal or inadequate solutions make little sense in light of the size of the investment and the risk of potential future damages, and supporting the suggestions made by council member Dave Romero. The city staff is also urged to listen to the concerns of Jim Garing. 7/20/99. Notice To All Contractors Submitting Bids concerning the Andrews/Conejo Stone project and including copies of the U.S. Corps of Engineers permit and California Regional Water Quality Control Board Conditional Waiver for the Project. 7/16/99. Corps of Engineer permit for the Andrews/Conejo project. At p. 2, Army Corps of Engineers expressly stated that the nationwide permit does not grant any property rights or exclusive privileges, and that it does not authorize any injury to the property 3 rights of others. The subsequent flooding of Plaintiffs' property violated this provision of the Corps of Engineers approval and expressly violated the rights of the plaintiffs when their property was flooded. Corps of Engineers provided a certification of compliance with Department of the Army Nationwide Permit, which plaintiffs believe was violated in the subsequent flooding events in that the project engaged in by the city injured their private property rights when their property was subsequently flooded: The nationwide permit general condition par. 2(A)2 require proper maintenance so that any structures or fill authorized shall be properly maintained, including maintenance to insure public safety. Paragraph 3 provided that appropriate erosion and siltation controls must be used and maintained an effective operating condition and that all exposed soils and other fills as well as any work must be permanently stabilize at the earliest practicable date. Plaintiffs do not believe that this condition was complied with. The nationwide permit from Army Corps of Engineers required a statement that the authorized work was done in accordance with Army of Corps Engineer's authorization including any general or specific conditions. Plaintiffs do not believe that such a statement was truthfully provided to the Corps of Engineers. Condition 14 also requires that the City provide a statement that any required mitigation was completed in accordance with permit conditions. Plaintiffs do not believe that such a statement was truthfully provided to the Corps of Engineers. The nationwide permit from the Corps of Engineers, condition B-6, require the discharges must not permanently restrict or impede the passage of normal or expected 4 high water flows or cause the relocation of water, which did not occur when Plaintiffs' property was subsequently flooded. The nationwide permit repeated in the conditions under paragraph 4(B) 1 and 3 that the permit does not grant any property rights or exclusive privileges and does not authorize any injury to the property rights of others. Plaintiffs' property rights for subsequent damage is in violation of these permit conditions. The nationwide permit under paragraph E requires a revaluation of the Corps of Engineers permit decision requiring the city to pay for any corrective measures. Plaintiffs do not believe that the City complied with this condition and informed the City of subsequent damage to Plaintiffs'property or agreed to pay for corrective measures as a condition of said permit. 5/10/99. This is the date of the California Regional Water Quality Control Board approval for the industry project. Plaintiffs do not believe that the City complied with condition 8, that all disturbed areas will be revegetated and enhanced with local native species, including enhancements from the losses resulting from the installation of the structures. The Andrews/Conejo Storm Drainage Improvements Specification No. 99704 certified by Wayne A. Peterson based upon an eligible date on his engineering seal, are not complied with in various regards during the construction of the project. The specifications in paragraph 1 provided that all work must be done in accordance with the special provisions and data standards of the city. Plaintiffs do not believe that the work 5 was done in compliance with those provisions paragraph 3 provides that the work was involved with the construction of an inlet structure, piping, manholes and outlet structure to divert storm water overflow to San Luis Creek. The contractor was required to comply with all permits under paragraph 5-1 and, if found negligent, the contractor would be held liable for fines assessed for permit violations. Plaintiffs do not believe that the violations which occurred from the construction of the project were ever submitted to the contractor for remediation, and in the work, such acts have been suppressed from plaintiffs' knowledge. Paragraph 7-2.01, page 4, provided that the site should be regarded after completion of the drainage pipe instillation. The reinstallation did not comply with the project standards and that it was elevated so as to create an obstruction within the flow area and divert water towards Plaintiffs' property. Paragraph 7-5.01 requires compliance with slope protection under the standard specifications. In this case, the slopes were not protected and in effect directed water towards plaintiffs' property. Plaintiffs do not believe that the provisions of 7-6.01 regarding storm drains were complied with in that if they had been complied with, flooding may not have occurred at Plaintiffs' property, subject to the testimony of retained experts. The special provisions regarding landscape establishment and maintenance. At p. 22,were not, to the plaintiffs knowledge complied with. 2/16/99. The city notified the Department of Fish and Game that it intended to substantially divert or obstruct the natural flow or substantially change the bed, channel or bank of, or use material from the streambed of an unnamed tributary to San Luis 6 Obispo Creek. This admission recognizes that the city was altering stream flows within an unnamed tributary of San Luis Obispo Creek. 7/2/99 Correspondence from the United States Department of Interior, Fish and Wildlife Service, noted that the proposed drainage system would include an inlet approximately 4 meters upstream from an existing debris rack. The bottom of the inlet structures would be located above the streambed to allow uninterrupted seasonal flows. In fact, the outlet structure was located even higher,. as explained and admitted to in memorandum from McCluskey referenced in other answers to interrogatories. The correspondence noted that the Creek bank is presently stabilized and that the invert of the proposed outlet would be located 1.5 meters above normal Creek water level. In fact, it was higher, and created a diversion which in turn, resulted in the misrepresentation of the project syntax to the U.S. Fish and Wildlife Service. Said correspondence also indicates a possible misrepresentation from the city on June 30, 1999, see page 3 of said correspondence, representing that "all mitigation measures have been incorporated into the project design", which is not, to Plaintiffs'knowledge, correct. 5/6/99. The biological opinion submitted in connection with the project noted that the city, at p. 10,paragraph 2D &2E,require the city to revegetate the area during spring and fall for the purposes of qualitatively assessing growth of the plantings are seedlings and the presence of exposed soil. Plaintiffs do not believe that that condition was complied with. 7 The bid submittal forms produced concun-ently herewith, concerning the Conejo project, indicated various items of work, which changed the patterns of drainage within the area and required revegetation of disturbed areas, and other actions which contributed to Plaintiffs' damages, and Plaintiffs believe, are subject to ongoing discovery. 5/12/99. Memorandum from Dave Romero to John Dunn questioning whether the city had met all the conditions of the settlement agreement and council direction thereby satisfying the concerns of the neighbors concerning future flooding. Romero questions whether or not the City Council had agreed to not to consider an overflow protection wall. Romero indicates that the testimony from Dr. Hanson, Steve Secrest, Walter Schroeder, and David Moore all indicated a primary concern regarding rocks which blocked the entrance to the culvert. Romero's motion at the February 1997 meeting of the City Council requested staff to investigate the possibility of a second culvert entrance, which he doubts the staff ever investigated. Romero also indicates that Jim Garing had not indicated that he was satisfied with the design of the city system. He suggested that the city follow-up on these issues, which, plaintiffs information indicates, that they did not follow-up on. 2003 Plaintiffs prepared a 2 page chronology regarding events from 9/8/03 through 11/17/03, a copy of which is produced concurrently herewith in the document production. 2-03. (Garing File). SLO Waterway Management Plan, p. 86; requiring a 10 year deign capacity; prohibiting design surcharge in pipe system it would cause flooding in portions 8 of a habitable structure; 10 year design supplemented with an overland conveyance component demonstrating how a 100-year event will be accommodated, and this overland component shall not be allowed to flow through or inundate an existing building. A natural drainage must leave the improved area at its original location and with approximately the same discharge velocity as existing prior to development unless there is a special indemnity agreement; downstream waterway must be shown to be stable and consistent with these guidelines and criteria. Undated Municipal Code provision (Garing File) Section 8.12.080. Prohibiting structures, fence, wall tree, or other material which obstructs or is a hazard to the free flow of water through a stream, drainage channel or watercourse; declaring the same to be a public nuisance, subject to abatement by the director of public works. Title 8, page 19. 9/8/03. Wilson's removed two to three 25 foot mature trees along back lot line and removed existing fence between Wilson and Secrest properties. Wilson indicated plans to raise a lot line slope by three feet in order to level yard and build an eight foot fence, and a three foot retaining wall and five foot fence on top of that. Wilson indicated that they had no permits or intention of getting any and planed to allegedly improve drainage by adding French drain and drop-inlets, but had not consulted an engineer. Secrest explained flooding concerns from culvert overflow, suggesting engineer review project, and expressed concern that eight foot fence would create an uneven line across the back lot. 9 9/9/03. Steve Secrest called Tim Girvin at the City and expressed concern about Wilson fence work. Girvin said Inspector would come to look at the project. 9/12/03. Steve Secrest called City because work on fence continued. Steve Secrest spoke with Rob Livick, Tyler Corey, Tim Girvin. A Stop work order was issued and fence height exception was posted for neighborhood. 9/15/03. Steve Secrest e-mail to Whisenand listing objections to Wilson project. He requested phone call or return e-mail. Neither of which were provided. Again, Secrest called Whisenand for approximately one week, without a return call. Secrest e-mail to Ron Whisenand with a copy to Livick, a copy of which is produced concurrently herewith, expressed 10 concerns, which are incorporated herein by this reference, and included information that this partially constructed retaining wall is on the 12 foot drainage easement, the retaining wall would redirect normal drainage, storm drainage, creek overflow and flooding onto Secrest property and downhill neighbor's properties; that the retaining wall with the fence is approximately nine feet in height from the lowest point; that the construction began to 9/8/03 with no permit an no notice; that soil in the hillside neighborhood is clay; that the downhill slope creates load increases and surcharge issues. Secrest expressed concern that any retaining wall structure on the public drainage easement cannot be allowed for safety reasons as it would redirect storm drainage onto several downhill properties, which been severely flooded in the past. Produced concurrently herewith is an undated request for field investigation, on a standard City form. 10 9/17/03. Date of notice of fence height exception noting a five foot high fence on a three foot high retaining wall and advising that concerns or objections must be filed within five days of the date of the letter. 10/2/03. City correspondence to Mike Wilson indicating that an objection had been received to the fence height exception, a copy of which is produced concurrently herewith. Undated City of San Luis Obispo Agenda regarding a public hearing on Oct. 17, 2003, regarding fence height exception. 10/16/03. Correspondence produced concurrently herewith dated October 16, 2003, addressed to Steve Secrest from civil engineer Thomas E. Baumberger, stating their concern over the construction taking place, some of which is encroaching over the property lines established by Record of Survey 6801; Concerns were expressed about grades that are being altered both near site of the line as well as considerable shifting of earth of"your neighbors property." The letter further advised "it appears an excavation is being made to tap into a large diameter reinforced concrete storm drain." 10/16/03. Jim Garing correspondence to Mike Wilson, with copies to Dave Romero, Mayor San Luis Obispo, Mike McCluskey, Public Works Director, and Ron Whisenand, Deputy Director Community Development Department, and others, the contents of which are incorporated herein by this reference, and advises of existing public drainage 11 easement, prior flooding and overflowing occurring in March 1995, advising of the City of San Luis Obispo policy that storm drains which are not designed carry 100- year flows must have safe overland escape routes for excess flow; that none of the drains in the area are designed or constructed to cant' more than a ten-year flow; advising that the construction is unreasonable because it will divert drainage water from its natural course, down to the easement Cazadero Street and instead will divert waters through the Secrest and Nuckols properties; that the construction of the wood retaining wall and approximately three foot of fill over the existing 36 inch diameter reinforced concrete pipe storm drain making maintenance more difficult in the future; that the area in which the construction is occurring is in a flood zone and the storms, in the month of March 1995, had flows up to depths of one foot, even though the storm type was only a seven to eight year storm. Garing also advised of the encroachment and that City standards for this type of wall indicates it cannot be constructed in heavy clay soil types which is the type on the site. 10/10/03. Steve Secrest reached Whisenand who was unsympathetic to Secrest's concerns and offered Wilson's permits, retaining wall footings, and did not address flooding issues. 10/11/03. Steve Secrest met with engineer Jim Garing at Secrest property and walked the property and inspected the project. Garing expressed concerns regarding Secrest vulnerability to flooding; the project went forward. 12 10/17/03. Steve Secrest hand delivered Gating letter to Mike Wilson, Mike Cannon, Ron Whisenand, and Rob Livick. Copy of letter produced concurrently herewith. 10/17/03. Public Hearing regarding fence height exception. Wilson presented a project plan. Mike Cannon testified that only a minuscule amount of water teaches the Wilson, Hanson, Secrest comer. Matt Wall said the Andrews project fixed the flooding problems, that the hill would never slide again, and water follows the slope from Andrews to Cazadero Street. Steve Secrest used City's topo map to explain to Whisenand how water overflows the 36 inch culvert and floods downhill properties. Whisenand ruled for the fence height exception with retaining structure on the drainage easement. There is virtually no input from Public Works other than to require a grading and drainage permit before work resumed on the project. Whisenand did not address the issues of upstream City culvert and subsequent flooding. He said drainage/flooding was not his expertise as he dealt with fence height and view shed issues. Secrest informed they could appeal his decision to the Planning Commission. Notes of Secrest presentation are produced concurrently herewith. Photographs attached to correspondence dated October 17, 2003, prepared by Matt R. Wall, which show the retaining wall and change of grade within the area of the Public drainage easement. 10/20/03. Steve Secrest called Mike McCluskey and expressed concern regarding Wilson project. Discussed the retaining wall and earth fill occurring in the City drainage easement Steve Secrest informed McCluskey of Mike Cannon's comments re: flooding concerns was "it's a joke" and McCluskey stated, "Obviously he has never flooded". 13 10/21/03. Memorandum from Michael McCloskey, Public Works Director, to City Manager Ken Hampian, a copy of which is produced concurrently herewith and incorporated herein by this reference. Among other things, the memorandum notes the storm drain easement, noting that the easement is there; that the slope of the land is such that if the existing inlet plugs up the storm water would flow downhill onto the Secrest property, noting that the City might want the Wilson yard to contain the slope back to natural grade; that Secrest is scared and that in truth they all have reason to wont'; "the system was never well designed-the inlet to the pipe is in a hard to get location, any plug causes an overflow and the only overflow is through homes downstream." Copies were provided to Tim Bochum,Rob Livick, and J. Walter. 10/27/03. Secrest appeal with City Planning Department, The appeal stated clearly that this is a flooding and drainage issue and not a fence height issue. 10/27/03. Steve Secrest memorandum to Jim Garing regarding concerns concerning scope of the easement and enclosing June 24, 1999 correspondence from the Walter to John Dunn noting that the City did not fulfill its promise to provide a completed permanent solution for future drainage problems; that City Councilman Dave Romero disputed the solution, and other matter set forth therein. 11-3-03. (Garing File) Letter from civil engineer Thomas Baumberger indicating that the intent of both Tract 30 and Tract 92 was to confine the creek flow within the 12 foot 14 drainage easement and direct the discharge back into the channel; the drainage creek water must be maintained within the boundaries of the present easement and every effort must be made by the governing body to insure and enforce an adequate and safe facility for owners abutting the easement. He indicates that with flows from steep hillsides, "This facility is an accident waiting to happen and when it does, the owners of Lots 1 through 5 in Block A, Tract 30 will be in deep trouble." He Supported Dave Romero's memo to John Dunn, which would "relieve the City of San Luis Obispo of a huge liability." 11/13/03. Secrest called Tyler Corey at the City regarding when the staff report would be available. He was told a report would probably be out late the afternoon of 11/14/03 or 11/17/03. Tyler Corey had already faxed a Staff Report to neighbor, Tom Nuckols. 11/17/03 Steve Secrest called Tyler Corey regarding whether a VCR would be available and was told one would be available. 11/17/03. Planning Commission meeting. Secrest gave a three-minute presentation, not having been told that he would have six minutes as the appellant. He showed the video of prior flooding to the Planning Commission. All commissioners expressed frustration that they were unable to address flooding issue which they felt was cause for concern and should be brought before the City Council. Ron Whisenand spoke as the Administrative Hearing Officer and said his decision only addressed the Alisal-Conejo drainage, and that he did not understand the more serious drainage issue. The Planning Commission 15 granted the fence height exception. During the break, Commissioners Osborne and Loh both urged the neighborhood to bring this to the attention of the City Council, as it was a serious issue that needed to be address. Ron Whisenand had ample time to educate himself before the Administrative Hearing since Steve Secrest had e-mailed him a list of the drainage concerns on Sept. 15, 2003. The concerns were ignored at the Administrative Hearing. 11/26/03. Memorandum prepared by Stephen Secrest regarding telephone discussions with assistant city attorney on that date. This memorandum outlines various outstanding issues and problems with the City's approach, as well as reasonable solutions. The recommended meetings with McCluskey and Garing and various city officials all but outlines resistance on the part of the City to address any of the property owner concerns. 12/1/03. Appeal to City Council form filed by plaintiffs challenging the decision to allow fill to encroach in the drainage easement; the decision to allow fill as part of a fence height exception as this is a neighborhood flooding issue. 12/4/03. Correspondence from Michael McCluskey to neighbor David Moore, indicating that the City was confident that the new rock catcher would be able to keep a recurrence of past flooding offense from occurring. This representation proved to be incorrect. 12/8/03. Memorandum from David Moore, to Mike McCluskey indicating various problems with the City's approach to solving the flooding problems, and advising the 16 plan of City maintenance would be inadequate to prevent future flooding offense, which proved to be correct. 12/11/03. Correspondence from Michael McCluskey representing that the city staff person who designed the project stated that a 100 year event would be protected against. This, in light of subsequent events,proved to be incorrect. 12/17/03. Correspondence to Plaintiffs from the City Clerk indicating that the appeal would not be considered and suggesting the plaintiffs present their concerns at public comment. The city unreasonably, in Plaintiffs'view, refused to consider those issues. 12/24/03. Memorandum prepared by Steve Secrest regarding conversation with Gating which advised telling the City to fix the Drainage easement, to clear obstructions, and put a headwall along the entire 300 ft. downhill slope of the easement to ensure all water and debris stays in the Drainage easement and carries downhill to Cazadero Street. Garing also advised that the Drainage easement is a general drainage easement for any and all overflow. 12/28/03. E-mail from Dave Romero suggesting an approach to direct the City Council by writing a letter outlining Plaintiffs concerns prior to the Jan. 6, 2004 meeting. This represents Plaintiffs' ongoing efforts to assure that an adequate solution would be implemented. 17 1/03 Additions of City Uniform Design Criteria. The standards, at p. 3, require the new development shall accept historic flows from upstream, and convey them in a non- erosive, non-damaging manner to a safe point of disposal which is either: a. A street, storm drain, or improved drainage channel which must have adequate capacity; or b. A natural creek. The Drainage improvements pursuant to B. 1. Shall be capable of handling the design storm based on ultimate development upstream, and comply with various other standards. Plaintiffs did not believe that the standard was complied with. The design requirements under paragraph 4. C. requires that all underground structures shall be provided with an alternative service area that will safely carry off storm waters should the structure become blocked. The service area shall not be obstructed in such a way as to divert or block stone water endangering adjacent development. The standard requires that editions or extensions to existing culverts shall be sized in relation to the practical quantity of water to reach the location and which can be safely carried. The standard requires that due to the tendency for plugging and higher maintenance factor, that drop inlets utilizing grated openings may only be allowed by special permission of the City Engineer. Paragraph G. provides that new projects shall be designed to include improvements necessary to assure no increase in flood flows downstream. Plaintiffs did not believe that any of the standards were complied with by the City. 1/20/04. Notes regarding Ken Hampian meeting of that date. The notes indicate that Plaintiffs were forced to revisit the 1995 flooding issue and advised that it looks like it could be even worse than it was then. The meeting included Ken Hampian, Jim Garing, George Clucas, and Plaintiffs. Plaintiffs recommended clearing obstructions including 18 the Wilson's fill, re-graded, and placing a headwall along the entire 300 ft. downhill side of easement to ensure all water and debris stays in Drainage easement and is carried downhill to Cazadero St. 12/20/04. Correspondence to Plaintiffs from Ken Hamp'ian, providing an interim response, which did not substantively address Plaintiffs concerns. 2/2/04. Correspondence from Tim Girvin to Ken Hampion and Michael McCluskey erroneously indicating a minor amount of grading of the Wilson property, and failing to address the placement of fill existing in City easement or the requirement for any encroachment permit. 2/3/04. Correspondence from. Ken Hampian addressed to Plaintiffs acknowledging the placement of fill, although based upon incorrect facts, and failing to address any encroachment permit issue requirements. 2/29/04. Correspondence from Plaintiffs to Ken Hampian advising him of the true set of facts, and advising of ongoing damage potential to Plaintiffs' property. The correspondence is detailed and incorporated herein by this reference. The City was fully advised of the facts and circumstances which would subsequently cause damage to Plaintiffs'property. 19 3/11/04. Correspondence to Stephen Secrest, from Mike McCluskey admitting that the City drain system was mis-constructed and recommending alterations, which Plaintiffs are informed never occurred. The correspondence erroneously stated that the new storm drain "will be fully capable of handling the 100 year event without assistance from the downstream existing 36 inch culvert." Subsequent events proved that this was untrue, and Plaintiffs are not aware that the alterations to the drain inlet were completed prior to the flooding event on December 31, 2004. 3/16/04. Correspondence from Plaintiff Stephen Secrest, questioning the 100 year capacity; demanding lowering the top of the inlet structure down to the design elevation or lower; advising that the next rainy season is in October 2004, not October 2005; advising of the need to take into account the debris load; and questioning the reference to the 1983 Pink Book, which Plaintiffs now believe would not be applicable due to the prior existence of the Andrews creek. Plaintiffs reminded McCluskey that all underground structures under City standards shall be provided with an alternate service area that will "safely carry off storm waters.should the structures become blocked. The surface area shall not be obstructed in such a way as to stop, or cause to be endangered by storm water, adjacent development." The City failed to act upon or comply with these requirements even though they were advised of the necessity of doing so well in advance of the event occurring on December 31, 2004. 20 3/23/04. E-mail from Dave Romero indicating that McCluskey's representations made no sense to him "since the surface drainage won't be needed unless the entrance to the pipe of the Hansen property is blocked "the spring up pipe capacity". Ken acknowledged viewing the video of drainage flowing down the drainage easement behind Wilson property. 3/31/04. Plaintiffs receive what they considered to be an inadequate and unresponsive letter from Mike McCluskey to them. The City represented the property was then a FEMA Flood Insurance Rate Map Area to be within the limits of a 100 year flood and 500 year flood. All Plaintiffs' damages have occurred during minor storm events well below a 100 to 500 year flood events. McCluskey erroneously represented that the improvements already made "reasonably reduce that potential to you and your neighbors." 8/16/04. Plaintiffs contact council member Christine Mulholland regarding the issues, who suggests providing additional information to the City Council regarding potential flooding problems. 8/27/04. E-mail from Plaintiffs to City council member John Ewan advising of potential flooding damages, indicating that the drainage easement was obstructed, so that there's no safe overland surface area to carry off storm waters should the structures become blocked in violation of City Engineering Standards; and that the new Andrews Street structure is 21 not a 100 year design and makes no provision for storm overflow when it becomes clogged with debris. 9/28/04. Correspondence from Plaintiffs to the City Council to request help to prevent the obstruction of a public drainage easement. The letter fully informs the City of the potential consequences which may occur as a result of the City's in actions as outlined in that correspondence, among other things. 9/30/04. E-mail from Dave Romero to Plaintiffs advising concerning speaking during City Council meetings to address ongoing drainage issues, and suggesting that perhaps Mike McCluskey in his position was being defensive, and suggesting starting with the review of the entire situation with J. Walter and the City Attorney's office. 11/05/04. Stephen Secrest notes concerning meeting with City Attorney and J. Walter, suggesting that staff has never addressed their concerns: drainage easement obstructed with knowledge and approval of city staff - Public Works Department and Director McCluskey. City staff has acquiesced to the demands of uphill property owners who do not and never will flood, and in doing so have jeopardized downhill property owners that have a long history of flooding. Advised city officials that during the 1995 storm water flowed through the easement and came out on Cazadero approximately 10 feet below the easement. Water worked its way through to Cazadero despite fences, trees, log piles, yard debris in the easement. Plaintiffs asked that the City take a look at the situation. 22 12/31/04. Plaintiffs prepared a one-page memorandum summarizing the damage which occurred as result of the flooding on December 31, 2004. Fees estimates were preliminary in nature and would be determined more completely through the preparation of further expert discovery. Garage water damage: First moisture damage to drywall, studs, etc. Potential dry rot, possible mold, moisture damage to electrical sockets. Eighteen inches of water against the back garage wall; twelve inches of water along south side of garage. Extent of damage and cost to repair to be determined. Floodwater damaged or destroyed the following: Christmas decorations, $150; large box of hard back in paperback books, $200; box of 25-30 records, $100 plus; box of clothing, $100; guilt picture frame, repair costs be determined; mud damage to 5 Italian cane dining room chairs, repair costs be determined; Small wood antique chair, $75; tall wooden kitchen swivel stool, $55; 20 lb. bag of dry cat food, $11; two wooden bookcases, costs be determined. Hours spent cleanup garage: removal of all items from garage, clean dry; hose and sweep garage floor; return items to garage; hose mud and silt from driveway. Two people at 9-10 hours each. Stonewall; undermined where floodwater forced its way under the wall; repair costs to be determined. Wooden fence and footings undermined where water dug under fence. Repair costs to be determined. Floodwater washed away rich topsoil recently placed in upper back stone planter; planter subsequently has rocks and weeds from hillside; undetermined number of hours and cost to clear planter and replace soil washed away. 23 Upper back lawns: covered with silt and debris, severely damaged lawn and brought weeds from hills. Undetermined cost to spray, clear and re-sod. Lawn behind garage: covered with water, mud, rocks, and weeds. Undetermined cost to spray, clear and re-sod. Mud in sprinkler heads, four hours to remove mud from sprinklers. North planter along driveway covered with silt and debris. Killed mature Pyracantha tree and severely damaged two azaleas and one camellia. About 15 hours removing weeds from planter bed, fertilizing plants, loosening ground and aerating around plants. 20-25 hours removing tree that died. $60 for stump removal. $170 to replace tree, $15 planted tree. 20 to 30 hours spent filling and arranging sand bags and removing sand bags and disposing of sand. 1/2/05. Plaintiffs' memorandum. Flooding on December 31st: the new inlets on Andrews Street became blocked and the culvert behind our property either became blocked or was overwhelmed. Water, silt and debris flowed to the comer of the Secrest, Hansen, Wilson properties where it became dammed by the Wilson's fences and regrading within the drainage easement. Eventually the water worked its way under Plaintiffs' fence in several spots and also under Plaintiffs' stone wall in one spot. There was at least one foot of water in our yard behind garage and along south side. Water and silt came into the garage and left a couple of inches of mud on the floor. J. Walter came out on the morning of the 31st and walked drainage easement. He viewed the path of the 24 overflow water and where it became dammed when it could no longer flow along the easement and out onto Cazadero Street. 1/4/05. E-mail from Jay Walter indicating that Dave Moore provided good insight into the problem and asking for copy of the video from prior years flooding. 1/5/05. E-mail to Jay Walter expressing concern about approaching storm possibility of eight inches of rain in a short period of time. Requested removal of obstructions on the Wilson property to prevent a repeat of the flooding that occurred on December 31, 2004. 1/7/05. E-mail to Jay Walter from plaintiffs in response to their request to remove obstructions from the general drainage easement behind their property. Asked whether or not the City had initiated dialogues with adjacent owners within the prior 12 to 15 months. J. Walter advised them to protect themselves in any way possible. Plaintiffs indicate that they have sandbagged extensively and strengthened their fence as much as possible. They know there is little more they can do to protect themselves without intervention and assistance from the City. Indicates that as Jay Walter observed, the water runs up against obstructions in the easement, and with no place to go, forces its way under the Secrests' fence and stonewall and into their garage. Secrest advised that in a more severe storm, Plantiffs are certain to experience more expensive damage. 1/10/05. Plaintiffs prepared notes on meeting with J. Walter. Met with J. Walter in early November, 2004. Plaintiffs requested him to take a fresh look at the drainage easement 25 through the property line. The January 10, 2005 meeting was arranged to discuss his findings. Both J. Walter and Dave Romero confirmed to Plaintiffs that it was not major event that the caused failure of the City's new "100 year structure". At the meeting, J. Walter indicated that he did not agree with McCluskey that "everything has been done to fix the problem." Mr. Walter indicated that he felt that something is wrong with the system and it needs to be repaired. He identified possible solutions as physical improvements to the property line and/ a reconfiguring of the inlet structure. He stated that the new inlets on Andrews Street, when functioning properly, take away the water but when they become plugged, problems arise. He indicated that the easement is an overflow channel that could be utilized. He indicated that a solution can be designed that will,quite easily alleviate the Cazadero concerns. He indicated that there is currently a problem with fences crossing the easement, and possibly replace fences with gates. He indicated that the Wilson's trees can remain in the easement for the time being. Regarding a retaining wall, J. Walter indicated that there needs to be an area to maintain water flow, a hard surface near the wall to keep water flowing and prevent water from washing away soil and forcing its way under the walls and out of the easement. He stated that he plans to sit down with Ken Hampian, City Administrator and to provide him with a full rundown on the issues and ideas for improvements. He indicated that he hopes to create a project for the City Council to consider and approve financing. He indicated that this is the time to pursue the issue with the City Council by speaking at this City's Community Forum Financial Planning session Wednesday, Jan. 12, 2005; speak during public comment time at upcoming City Council meeting; request that the City spend resources and effort on flood management to protect Conejo properties; and suggested do 26 not state that the current problems are the result of City inefficiency. He suggested talking to the Wilson's, since he is confident that an uphill neighbor would never knowingly create a situation where water would flow onto the downhill property and cause damage. 1/12/05. Copy of agenda for Community Forum. 1/28/05. Correspondence from Steve Secrest to Jay Walter. The letter memorializes that during the meeting, Mr. Walter stated that he did not agree with Mr. McCluskey's position that "everything has been done to fix the problem". He felt something is wrong with the system and it needs to be repaired. He offered solutions including physical improvement to the property line and reconfiguring inlet structure. He indicated that the City needs to consider reasons for the easement and it uses; that the easement is an overflow channel that could be utilized; that a solution can be designed that will quite easily alleviate the Cazadero concerns; that there is currently a problem with fences crossing the easement and other obstructions within the easement; that a retaining wall with a hard surface near the wall (swale) to keep water flowing and prevent it from washing away soil and forcing its way under the wall and out of the easement. Plaintiffs indicated that they followed his suggestion and attended the city's Community Forum on Jan. 12'h and urged the Council to support his efforts in the funding for this project in the `05-`07 budget. 27 i 3 /1/05. Client notes for meeting with Mayor Dave Romero. Among other things, the memorandum summarizes plaintiffs various efforts to avoid damage to their property. They note that Whisenand ruling allowing three feet of earth fill in the easement. Memorializes that Livick told plaintiffs that they cannot construct a retaining wall on their property. Hampian letter to Secrest 1/20/04 promised a reply from the City Attorney which was never received. Hampian letter to Secrest 2/3/04 incorrectly stating that the items placed in the drainage easement does not obstruct. Girvin incorrectly found no substantial regrading in easement. Lowell would not authorize removal of Wilson's obstructions in the easement after 12/30/04 flooding. Summarizes efforts to avoid damage. Recited Mike Canon statement that potential flooding of the property was %joke". 6/29/05. Secrest file Claim Pursuant to California Government Code section 910. 6/10/05. . Plaintiffs contact Stanley Weaber regarding repairs to property. 6/19/05. Correspondence from Marcia Guthrie indicating comparable values of properties in the neighborhood. 9/26/05. Denial of claim by City. 28 7/17/06. Garing transmittal including City Resolution No. 5138 establishing various City policies. Includes copies of October 16, 2003 correspondence to Mike Wilson, with copies to various City officials,regarding risk of damage to Plaintiffs property. 12/17/07. Jeanne Secrest meets with Council member Allen Settle who was very surprised that the drainage problems are still an issue: it should have been resolved long ago; the downhill properties must be protected; that city staff feels no sense of urgency; that city staff does not feel accountable; that someone on city staff doesn't want problem fixed, is dragging their feet. He stated that "there is no judge in this county who wouldn't be sympathetic your position". He was surprised that Jonathan Lowell did not open the public drainage easement in January 2005 and that the easement is still blocked. He suggested providing written statements to the Council in January at public comment periods. If there is no action from City Staff, the Council would agendize the issues and publicly expose Staff for ignoring a very serious issue. He felt Cazadero homes could be easily protected. He stated that the public drainage easement needs to be opened "NOW!" He was pleased that they had consulted with Dave Romero. He stated that, "City has been put on notice". 1/4/08. Jeanne Secrest e-mail to J. Walter thanking him for numbers in case of emergency. She indicated that he did not address her primary question concerning whether the public drainage easement has been cleared of obstructions and if not why not. She advises this is the fifth rainy season the public drainage easement has been 29 A blocked, endangering downhill properties. She advises this "situation is unreasonable an unacceptable." 1/6/08. Plaintiffs met with council member Christine Mulholland at their home. She was informed of the history, and she expressed concern the city staff knowingly allow the drainage easement to become blocked. She offered that the City Council would try to come up with unacceptable solution. 1/8/08. Steve /Jeanne Secrest notes concerning presentations during public comment period at City Council meeting, advising the Council of continued problems. Plaintiffs prepared a chronology of various meetings from 9/8/03 through 3/1/05 in an effort to address the issues. It 1/7/08. Memorandum from David Moore, resident at 1759 Conejo Avenue, to the City Council members expressed concerns about the creek overflow waters coming from runoff from the mountain valley above Andrew Street. He was concerned that the stream easement behind his property has been ignored and blocked. He indicated that the people who bought those properties well aware that the easement was there. He indicated that properties below the easement should not be forced carry water during extra heavy rains. He advised that the March 1995 storm caused water to run around his house for 20 hours. He was there when the creek started jamming up the 36 in. culvert at 3:30 in the afternoon and he almost was washed away trying to remove debris. He advised water 30 continued to run for 20 hours and finally stopped at 1130 the next morning. During most of that time he couldn't walk around the side of their home because the force of the water was so great. He indicates that the corrective work done by the city on the Wolf property is inadequate. The debris shields around the two new 36 in. culverts jam up right away, and the water they were expected to carry doesn't begin to go into them. Instead, after short while it heads right down behind the Conejo Avenue property lines and into the properties wherever an opening allows it ago. He indicated that the project was totally inadequate in design He believes that corrective work and wall to contain the waters in the easement definitely need to be built with a drop into a large culvert where the waters reach Cazadero. He advised that is where all the water ends up after flooding to their properties. 1/18/08. Plaintiffs memorandum of telephone conversation with Mayor Romero. He indicated that he spoke with Linda Wilson at a recent Rotary Club meeting and she said that she is resigned to the drainage easement but is concerned with her trees. He advised that the City Attorney is at least negotiating with a Wilson's again. 3/4/08. Memorandum of telephone call with Mayor Romero. Mayor Romero advised that when he found out that the City Attorney was still not clear that the public drainage easement was for above ground as well as underground purposes he told the City Attorney that this public drainage easement was meant for water flow anywhere it occurs - that is above ground as well as below. He stated that the City Attorney has checked some of these easement interpretations when they were put in place for above ground 31 I water runoff. The Mayor mentioned that he had asked staff if they had contacted the Army Corps of Engineers in the last five years. He advised that they had not as of this date. The Mayor indicated that he was very unhappy with this amazed. They discussed that they have known that is a poor design offering little or no protection to downhill neighbors at least since plaintiffs flooded again in December, 2004. He indicated that he did not agree with staff concerns each about two houses on Cazadero street if the trash rack becomes blocked, and the two Andrews St, culverts become blocked, and the old covert becomes blocked, and the new (proposed) drop inlet on Cazadero becomes blocked. He stated that water is not trapped and wall flow down Cazadero. 3/26/08. Counsel for plaintiffs proposes solutions and the settlement agreement. 4/25/08. City staff advises neighbors of alternative analysis for Andrews creek bypass. 5/20/08. Notes of presentation to city council regarding concerns and request that city take action to solve problems. 6/23/08. Plaintiffs Counsel communicates with attorney Clay Hall requesting response in order to avoid litigation expenses to plaintiffs prior settlement agreement. 6/27/08. Attorney Clay Hall advises that the settlement proposal was not presented to the City Council for a response. 32 Y 7/14/08. David Moore again writes memorandum to the City Council advising of prior flooding problems and requesting solutions. He knows corrective work done on the Wolf property is inadequate. He advised that the project design was totally inadequate. 7/29/08. Plaintiffs Counsel demands of the Wilson's remove their obstructions. 8/08 Wallace group prepares "Andrews Creek Bypass Deficiency Study". This study demonstrates both construction and design deficiencies in the existing drainage system. In describing the site at page 3, the Study notes that "Several properties are at risk of flooding during major storm events due to the deficiencies in the drainage system in this area." At page 4, the Study notes that, "A common factor in all of these flood events is the significant deposition of sediment and debris in the channel, obstructing the path to the underground storm drain system and forcing storm water to retrace its historic flow path, which is now through residential property. Flooding has continued to be a problem in spite of the improvements constructed in 2000 as described above." At page 6, the Study notes that, "Any improvements to the existing drainage system must take into account the certainty that sediment and debris are major components of flood flows in Andrews Creek." However, the capacity analysis is based upon clear water flows (p. 8). The Study notes, at p. 10, that "the Andrews Creek drainage system does not currently have a suitable overland flow path." At page 11, the Study notes that, "The watershed produces significant amounts of sediment and debris during storm events. Most of the debris is generated from natural causes, though human activity is also a factor. The 33 primary source of debris is from down cutting and erosion,in the main channel. Debris slides on the face of the hillsides have also contributed to the problem. Both of these activities can set loose large quantities of rocks and soil to be mixed and carried downstream with storm water." Woody material from trees and other vegetation also make a contribution." The report notes that one factor was a crossing on the Mott property which was washed out in a 20005 storm event and has not been reconstructed." A second crossing "is a complete barrier to flow, subject to overtopping and erosion. The material used in the crossing is a mixture of soil, wood and chunks of concrete, all of which could easily be displaced in the next major storm." At page 11, "In the 2005 storm, most of the debris accumulated at the trash racks near the bypass. Then,because a notch in the concrete abutment left the right bank vulnerable to overflow, floodwaters took that path, eventually finding their way to the backyards of properties on Conejo Avenue." At pages 12-13, the Study identifies the following deficiencies, arranged from upstream to downstream. "1. Inadequate debris management: With a watershed that is susceptible to landslide, debris flows, and channel erosion, the current level of debris management is particularly inadequate. There are no sediment or debris control structures in the natural watershed, nor have there apparently been any efforts to halt erosion of the stream channel. The debris control structures (trash rack and rock catcher) at the bypass inlet could also be greatly improved and are discussed separately. 34 112. Inefficient bypass structure: under the best of conditions, the current bypass orifice inlet is designed to intercept approximately 70% of the capacity of the underground pipe. When debris accumulates on the trash rack, that efficiency drops even further. The orifice should be enlarged and streamlined to take full advantage of the capacity of the underground portion of the system. Also, the efficiency of the RCB inlet can be improved 113. Trash rack inadequacy: According to FHWA, the surface area of a trash rack should be ten times the surface areas of the inlet it is protecting. The area of the existing trash rack protecting the orifice is approximately 5 times the area of the inlet. In addition, the vertical bars of the trash rack are so high that water is unlikely to enter through the top. Finally, the narrowly-spaced vertical bars cause rapid accumulation of trash and debris, preventing water from entering the bypass system. The 6" bar spacing is one-third to one-fourth the FHWA recommending spacing of 18" to 24". Trash racks designed to pass small-sized debris and deflect larger debris will stay open longer. 114. Rock catcher vulnerability. The rock catcher also employs vertical bars, but in this case the vertical bars are designed to accumulate debris to prevent it from continuing downstream. Its weak point, however, is that the abutments are lower than the top of the rock catcher. When the rock catcher is filled with debris, flowing water carves out a new path at the lowest point it can find. In the 2005 flood, that low point was the 35 j right abutment, which is 8" lower than the top of the rock catcher, as shown in the photo below. Note that the gap has been temporarily filled with sandbags. 115. Lack of a safe overflow path: "Because of the high potential for debris flows and obstruction to the primary drainage paths and inlets, the lack of an unobstructed overflow path is critical. The current situation with fencing across all possible overflow paths has made the problem even worse. Floodwaters will find a weak spot in one of those fences and force a collapse, possible[sic] sending a cascade of water into someone's property." The study notes that due to the nature of the deficiencies, it is difficult to quantify the level of flood protection that the existing system now provides. Utilizing clear flow assumption, the study notes at page 13 that the system provides protection for no more than the 10-year storm event. "This would mean that in any given year, there is a 10% chance for flooding to occur." 10/19/08. Plaintiffs' memorandum reviewing city plans and questions concerning its adequacy. 10/08. Petition signed by various neighbors expressing disagreement with the City/Wallace study regarding Overflow Path Improvements. Petition was signed by the property owners and delivered to City Council members. 36 11/5/08. Correspondence of that date prepared by Garing indicates deficiencies in the Wallace Report and indicates a variety of additional technical deficiencies in both the design,maintenance and construction of the drainage system. These matters are technical and consist of 4 pages which will not be repeated at length here. Reference to that correspondence and the facts. 8/12/09. Correspondence of that date prepared by Garing responding to correspondence of June 20, 2009 from Wallace Group. It demonstrates the continuing deficiencies in the design and maintenance of the system. Plaintiffs have also produced copies of various photographs showing the site conditions. 4/25/08. City advises owners of an alternative analysis for the Andrews Creek Bypass. 37