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HomeMy WebLinkAbout1981-11-03; City Council; Resolution 6717RESOLUTION NO. 6717 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND THE BUENA SANITATION DISTRICT FOR LEASE OF CAPACITY IN THE ENCINA OUTFALL The City Council of the City of Carlsbad, California, does hereby resolve follows : 1. That an agreement between the City of Carlsbad and the Buena Sanitation strict for lease of capacity in the Encina Outfall, a copy of which is attached reto and made a part hereof, is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and .rected to execute said agreement for and on behalf of the City of Carlsbad. PASSED, APPWIED AND ADOPTED at a regular meeting of the Carlsbad City )unci1 held on the 37d day of November , 1981, by the following vote, I wit: AYES : NOES: None ABSENT: None Council Mahers Packard, CAsler, Anear, Ms and Kulchln. XTEST: AGREEMENT BETWEEN THE BUENA SANITATION DISTRICT AND CITY OF CARLSBAD FOR THE LEASE OF CAPACITY IN THE ENCINA OUTFALL This Agreement, made and entered into this day of , 1981, by and between BUENA SANITATION DISTRICT, a county sanitation district, formed and existing under the County Sanitation District Act .(Section 4700, et seq., Health and Safety Code) hereinafter referred to as "Buena" and the City of Carlsbad, a municipal corporation hereinafter referred to as "Carlsbad." WITNESSETH: 1. The City of Carlsbad and Ruena Sanitation District entered into an Agreement for the lease of capacity in a land sewage'outfall on June 30, 1966. 2. Now Ruena and Carlsbad desire to rescind that Agreement and replace it by a new Agreement. NOW THEREFORE, the parties hereto agree as follows: Section 1. EFFECTIVE DATE: This Agreement shall take effect Section 2. LEASE OF CAPACITY: Ruena agrees to lease to Carlsbad the following listed percentages of capacity in the Fnci.na Outfall: 0 0. STATION TO STATION* 0 + 00 20 + 81.43 33 + 36.43 42 + 28.18 67 + 42.43 87 + 57.43 190 + 93.29 204 + 08.65 20 + 81.43 33 + 36.43 42 + 28.18 67 + 42.43 87 + 57.43 190 + 93.29 204 + 08.65 209 + 56.94 x OF TOTAL LINE CAPACITY AM0 1JNT 34.88 31.71 28.21 28.21 21.13 18.84 17.65 $ 48,625 10,070 20,900 11,735 45,950 5,630 * 14,280 17.65 2i.410 Total $159,600 *Stations as shown on hereinafter mentioned plans. **Capacity is defined as the total amount of sewage conveyed by each section of the Encina Outfall, flowing full without surcharge or spillage. Said Encina Outfall is the outfall sewer line, shown on those certain plans entitled "Plans for the Project-Sheets 1 through 7 Inclusive" on file in the office of the Department of Public Works of the County of San Sari Die~o, 5555 Overland Avenue, Building 1, San Di.ego, California, a COPY of which has been furnished to Carlsbad. Section 3. TERMS OF LEASE 1. Ruena shall lease to Carlsbad for a period commencing the effective date of this agreement and ending on or before July 1, 1996, the 'percentages of capacity listed in Section 2 herein, said lease to be upon the following terms and conditions: (a) The total rental sum shall be $159,600 of which $85,120 shall be paid on or before the date of this Agreement. The remaining sum shall be payable as follows: 14 equal annual payments of $5,320 each, beginning July 1, 1982., and payable each July 1 thereafter until fully paid. (b) Options are hereby granted by Buena to Carlsbad to purchase the capacity which is the subject of this lease. These options may he exercised provided lesee is not in default 2 I of lease payments at the time lessee exercises the option to - - purchase. The opti-on purchase price shall be the sum of - -. $159,600 less the amount of rental already paid to Buena under the terms of this Agreement. 2. Carlsbad may exercise the option to purchase at any time by giving one month's notice in writing, sent by registered or certified mail to Buena. Title to the capacity shall vest in Carlsbad upon delivery to Ruena of payment in the full amount of said purchase price together with any rental payment due at the time of the exercise of said option. Until such time as Carlsbad title to the capacity which is the subject of this -exercises its option, Agreement will remain in Ruena. 3. Carlsba'd shall not lose its right to exercise said option upon termination of the lease period, unless Carlsbad fails to exercise the same within ten (10) days after receipt of written notice from Puena to do so and to make prom~t payment of any amount due or if no amount is due then one dollar. Section 4. CONNECTIONS: Carlsbad, at its sole expense, shall be responsible for the construction, replacement or reconstruction of any necessary transmission facilities from installation, maintenance, repair, 0 Section 5. ENGINEER'S APPROVAL: The location, installation, construction, repair (except emergency repairs) replacement and/or reconstruction of the connections to the Encina Outfall shall be according to plans and specifications first approved by Buena's engineer. Section 6. LIMITATIONS ON TYPE AND CONDITION OF SEWAGE: All sewage discharged by Carlsbad into Encina Outfall shall conform to the ordinances, resolutions, rules and regulations which Buena must adopt in accordance with Agreements of the Encina Joint Powers concerning the condition of sewage and waste permitted to be discharged to the Joint System or any part thereof. I Section 7. METERING: Carlshad shall provide a device to meter the flow of sewage i'n the Encina Outfall at a point below any lateral connection, but above the Encina Sewage Treatment Facility. The meter will be installed and operated solely at Carlsbad's expense. -Section 8. INFILTRATION: It is understood and agreed that there will be inflow of water into the Encina Outfall because of leakage between the ? i r Carlsbad connection and the Encina Treatment Plant. Buena shall estimate thestotal waters that infiltrate the Encina Outfall between said connection and treatment plant (sometimes referred to herein as "infiltration") and apportion the same among all of such users of the Encina Outfall in the < proportion that the amount of sewage discharged into the Encina Outfall by -each such user bears to the total amount of sewage discharged into the I 1 1 Encina Outfall by all of such users of said Outfall. The amount of , infiltration apportioned to each such user shall be deemed a part of the ! i sewage of such user for all purposes. t 4 < 3 0 0 Sect ion 9. MAINTENANCE CHARGE : 1.. During such period as Carlsbad is authorized to use a portion of k I i( f t the capacity of the Encina Outfall, whether as lessee or owner of such capacity, Carlsbad shall pay to Buena a share of the cost of the maintenance and operation of the Encina Outfall, said share of the cost to f h be in' proportion to the average flow of sewage discharged into the Encina g Outfall through Carlsbad's connections to said outfall as compared to the total average flow of sewage discharged into said Encina Outfall. 2. Buena shall bill Carlsbad for its share of the cost from time to time,. but at least annually, and Carlsbad shall pay its share of the cost to Buena within thirty (30) days after being so billed. 3. Buena shall keep accurate records of its cost of maintaining and operating the Encina Outfall and such records shall- be open to inspection by Carlsbad at all reasonable times. Section 10. CHARGE AGAINST CAPACITY RIGHTS IN ENCINA TREATMENT PLANT AND OCEAN OUTFALL: All sewage discharged into the Encina Outfall through Carlsbad's connection, under the terms of this Agreement and thereafter discharged into the Encina Treatment Plant, and all infiltration allocable to Carlsbad as determined by Section 8 of this Agreement, shall be charged against Carlsbad's capacity rights in and to the Encina Treatment Plant and Ocean Outfall. Section 11. REPAIRS: The Encina Outfall Sewer shall be maintained by i Ruena in good repair and working order in accordance with sound engineering practices. It shall be the duty of Buena to make repairs on said Encina Outfall required to keep such outfall sewer in good operating condition. Except as provided in Section 12, the cost of all repairs shall be part of the maintenance costs of the Encina Outfall. 5 e Section 12. WAJOR REPAIRS ANI) RECONSTRUCTION AND REPLACEMENT: Notwithstanding the provisions of Section 11 hereof, if it becomes necessary for Buena to undertake major repairs of said Encina Outfall or any portion thereof or to replace or reconstruct said Encina Outfall or any portion thereof, the parties hereto shall pay all costs of such major repair, replacement or reconstruction in the same proportion as the parties own or lease capacity in the Encina Outfall or portion thereof repaired, replaced or reconstructed. Section 13. INTERRUPTION OF SERVICE: In the event of an interruption .of services to Carlsbad in the Encina Outfall, as a result of disaster, operation of State or Federal law, discontinuance or intdrruption of service to Buena'by the Encina Treatment Plant or Ocean Outfall, or any other cause beyond the control of Buena, Ruena shall bear no liability and shall be held harmless by Carlsbad from anv claims and liabilities for any injury to or damage to any person or persons or property or for the death of any person or persons arising from or out of such interruption of service or for any other damages or costs incurred by Ruena as a result of such interruption of service. 6 Section 14. ARBITRATION: Except as otherwise provided herein, all controversies arising out of the interpretation or application of this apreement or the refusal of either party to perform the whole or any part thereof shall be settled by arbitration in accordance with the provisions of this section and where not provided by this section, in accordance with the statutory provisions of the State of California then in force. The controversy shall be submitted to a board of three (3) arbitrators which shall be appointed, one by Ruena, one by Carlsbad and the third by the first two. The party desiring arbitration shall notify the other party by .a written notice stating the following: (1) that it desires arbitration, (2) the controversy to be arbitrated, (3) that it has appointed its nominee, and (4)'that it requests the other party to appint its nominee. Within thirty (30) days from the receipt of said notice the other party shall appoint its nominee. Within fifteen (15) days after the last party has appointed its nominee the two nominees shall appoint the third. None of the arbitrators shall be a resident of, or taxpayer in, or own property in, or have a place of business in, or be employed in or by, or have any contract with, or be an officer or employee of, either party. The arbitration board shall hold at least one hearing and, at least ten (10) davs before said hearing, shall give each party written notice thereof. The arbitration shall be restricted to matters relative to that stated in the notice requesting arbitration. The arbitration board shall have no authority to add to or subtract from this agreement. Each party~shall be given an opportunity to be heard and to present evidence. Upon conclusion of the hearing or hearings the arbitration board shall reduce 7 P their findings of fact, conclusions of law and the award to writing, and $ L shall sign the same and deliver one signed copy thereof to each public agency. Such award shall be final and binding upon both parties. A 1 majority finding shall govern'if the arbitrators' determination is not unanimous. Each party shall pay its own expenses, including the expenses . of the arbitrator which it nominates. The expenses of the third arbitrator and the administrative costs of the arbitration proceedings shall be shared equally. Any controversy which can be determined by an engineer's findings and . which under this section could be submitted to arbitration may, if the parties thereto agree in writing to do so, be submitted to a named engineer who shill be the sole arbitrator. Such engineer shall be a member of the American.Society of Civil Y Engineers and shall be disinterested as hereinbefore in this section required of arbitrators on an arbitration board. Re shall proceed in the I same manner and shall make findings, conclusions and an award in the .- manner provided herein for an arbitration board. Section 15. NOTICE: Notices required or permitted under this agreement shall be sufficiently given if in writing and if either served Q pesonally upon or mailed by registered or certified mail to the clerk or secretary of the governing body of the affected party to this agreement. Section 16. LIABILITY: Nothing herein contained shall operate to relieve Carlsbad of any liability for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement or reconstruction of the aforesaid sewer connections and appurtenances or from any acti'on or inaction of Carlsbaqd or of its officers, agents or employees in connection therewith. 8 . m 0 And except as provided in Section 16 nothing herein contained shall i operate to relieve Ruena of any liability for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement and/or reconstruction of the aforesaid sewer connections and appurtenances or from any action or inaction of Buena.or of its officers, agents or employees in connection therewith. Section 17. INDEMNITY: To the extent it may legally do so, Carlsbad shall defend and save and hold free and hirmless Buena and its agents, officers and employees from any claims, liabilities, penalties or , .fines for injury to or damage to any person or property or for the death of any person arising from or out of any act or omission of Carlsbad, its agents, officers, employees or contractors, arising from or out of any defects in the installation, construction, operation, maintenance, repair, replacement or reconstruction of said sewer connections or appurtenances. Section 18. TIME OF ESSENCE: Time is of the essence of this areement . .. Section 19. SEVERABILITY: If any section, subsection, sentence, clause, phrase or word of this agreement, or the application thereof, to any party, or to any other person or circumstance is for any reason held invalid, it shall be deemed severable and the validity or the remainder of the agreement or the application of such provision to the other parties or to any other persons or circumstances shall not be affected thereby. Each party hereby declared that it would have entered into this agreement and each section, subsection, sentence, clause, phrase and work thereof irrespective of the fact that one or more sections, subsections, sentences, clauses, phrases or words, or the application thereof to any party or any other person or circumstance be held invalid. 9 0 Section 20. This agreement shall be binding upon the parties hereto and the successors and assigns of each of them. IN WITNESS WHEREOF, each party hereto has pursuant to resolution duly passed and adopted by its respective governing body caused this agreement to be executed the date first above written. BUENA SANITATION DISTRICT BY Chairman, Board of Directors CITY OF CARLSBAD 10