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HomeMy WebLinkAbout1983-10-11; City Council; Resolution 7371"1 , 1 2 z 4 F E 7 E 9 1C 11 12 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 7371 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT BETWEEN THE CITY OF CARLSBAD, THE VISTA SANITATION DISTRICT, THE BUEMA SANITATION DISTRICT, AND THE SAN MARCOS COUNTY WATER DISTRICT, KNOWN AS PALOMAR JOINT LAND OUTFALL INTERCEPTOR INTERAGENCY AGREEMENT FOR THE CONSTRUCTION AND MAINTENANCE OF A JOINT SEWER LINE AND FACILITIES. The City Council of thle City of Carlsbad, California, does hereby resolve as follows: 1. That certain agreement between the City of Carlsbad, the Vista Sanitation District, the Buena Santitation District, and the San Marcos County Water District, known as Palomar Joint Land Outfall Interceptor Interagency Agreement, for the construction and maintenance of a joint-use sewer line and facilities, and Amendment One to said agreement, copies of which are attached hereto and incorporated herein by reference, are hereby approved. 2. The Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement and Amendment One thereto for and on behalf of the City of Carlsbad. conditioned upon acceptance of Amendment One by all other agencies which are party to said agreement. // // // // // // // // This approval is 1 2 3 4 5 6 7 8 9 10 11 dj urn& PASSED, APPROVED AND ADOPTED at a Aguyar meeting of the City Council of the City of Carlsbad held the 11th day of October 1983, by the following vote, to wit: AYES: NOES: None ABSENT: None Council &4kmkrs Casler, Lewis, Kulchin, chick and Prescott YLJL MARY H. VSLER, Mayor ATTEST: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALETHA L . (SEAL) 5- PALOMAR JOINT LAND OUTFALL INTERCEPTOR I NT E MGE NC Y AG RE E MEN T THIS AGREEMENT is made and of (CAKLSBAD 1 ? the SAN iLIARCOS COUNTY SANITATION DISTRICT (VISTA), and collectively referred to as PARTIES. - entered into this d aY by and between the CITY OF CARLSBAD lJATER DISTRICT (SAN MARCOS), the VISTA the BUENA SANITATION DISTRICT (BUENA)? REC I TALS : WHEREAS, SNJ tdARCOS and BUENA entered into an agreement dated June 19, 1967, for lease of capacity by SAN IfL4RCOS in BUENA SANITATION DISTRICT'S ENCINA OUTFALL SENER LINE (BUENA LINE) , this agreement expired July 1 , 1978; and WHEREAS, SAN MARCOS and BUENA entered into a second agreement for lease of capacity by SAN MARCOS in the BUENA LINE for the period of July 1, 1978, through July 1, i981; and NHEREAS, this second lease agreement was subsequently amended to extend ail additional year to July 1, 1952; and !{HEREAS, SAN MARCOS, the DAOPJ CORPORATION, and 5UENA entered into a third agreement for lease of capacity b.y SAN PlARCOS in the BUENA LINE for the period of July 1, 1982 through January 1, 1984, (the estimated operational date for the then proposed San Marcos Outfall Sewer Line to the Encina Treatment Plant or the Meadowlark Water Reclamation Facility for use by SAN MARCOS); and NHEREAS, on June 20, 1966, BUENA and CARLSBAD entered into an agreement for lease of capacity in the BUENA LINE; and IJHEREAS, on December 15, 1981, BUENA and CARLSSAD rescinded the aforementioned agreement and entered into a new agreement entitled "AGREEMENT BETNEEN THE BUENA SANITATION DISTRICT AND THE CITY OF CARLSBAD OF CAPACITY IM THE ENCItlA OUTFALL, the BIJEI?JA LINE, the period extends to July 7, 1996; and W,~~KL~~, Decztuse of fhcsi lgases cf cqacity to SAN MARCOS and because of contintled increase in sewaga from SAN MARCOS, BUEtM, the DUENA LINE has almost reached its capacity; and , '~'"'.P FOR THE LEASE of this lease and CARLSBAD , CARLSBAD, and MEREAS, VISTA desi res to obtain sewage transmission capacity to the Encina Water Pollution Control Facilities to serve the developinent in VISTA'S service area, known as Raceway Basin area; and -I- . WHEREAS, CARLSBAD desires to obtain additional sewage transmission capacity to the Encina Water Pollution Control Facilities to serve in the developments in the south and central CARLSBAD service area; and WHEREAS, BUENA desi res to obtain additional sewage transmission capacity to the Encina Water Pollution Control Facilities to serve developments in the BUENA service area; and WHEREAS, in 1979 SAN MARCOS initiated a project entitled "SAN MARCOS COUE4TY CJATER DISTRICT LAND OUTFALL, INTERCEPTOR" (State Water Resources Control Board Project No. C-06-1571-010) which extended from SAN MARCOS to the Encina Plant. Plans, specifications, and an environmental impact report were prepared. The design criteria for the lower reach from El Camino Real to the Encina Plant was 12.1 millions of gallons per day maximum flow capacity; and WHEREAS, PARTIES to this Agreement have expressed a desire to cooperate in the construction, operation, and maintenance of the Palomar Joint Land Outfall Interceptor, as shown on Plans and Specifications prepared by Neste, Brudin and Stone, Civil Engineers, dated August 23, 1983, on a reach-by-reach basis as shown in Exhibit "A" and as set forth in this Agreement and hereinafter caf I ed "IXERCEPTOR"; and WHEREAS, PARTIES are entering into this Agreement in order to establish their respective rights and duties with respect to the ownership of capacity in each reach of the facilities and for the operation and maintenance of the facil i ties; COVENANTS NO\d THEREFORE, incorporating recital s of facts above, the PARTIES hereto agree as follows: Article 1. OWNER: SAN MARCOS shall be the owner and shall be responsible for the preparation of the contract documents, the envi ronnental impact report for SAN MARCOS, the Coastal Comniission permits, all other permi ts , property acqui si ti on and easements , supervi si on of construction, cpratfon and maintenance of the INTERCEPTOR, and for the fiscal management of the INTERCEPTOR. Assistance from other agencies shall be provided to facilitate the process upon request by SAN MARCOS. Article 2. OIJNER 'S RESPONSIBILITIES: SAN MARCOS shall di 1 i gently and faithfully pursue all the foregoing responsibilities knowing -2- ,* '* that time is of the essence for construction of the INTERCEPTOR to relieve the surcharging in the BUENA LINE. ARTICLE 3. CAPAC I TY OWN ERSH I P : The ownership of capacity in each reach of the INTERCEPTOR is shown in the calculations in Exhibit "B" and summarized in Table 1. TABLE I CAPACITY OWlJERSHIP PERCENTAGES Reac h1 Carl sbad Vista Buena San Marcos No. MGD - % MGF x MG D x - - -- MGD x - 1 2 3 4 5 6 7 8 10 20.35 45.13 19.79 44.44 17.66 41.65 14.08 36.27 13.95 36.06 13.90 35.97 8.05 24.55 7.40 23.02 4.18 18.85 3.74 8.29 3.00 6.65 18.00 39.93 3.74 8.40 3.00 6.74 18.00 40.42 3.74 8.82 3.00 7.07 18.00 42.46 3.74 9.63 3.00 7.73 18.00 46.37 3.74 9.67 3.00 7.75 18.00 46.52 3.74 9.68. 3.00 7.76 18.00 46.59 3.74 11.44 3.00 9.15 18.00 54.86 3.74 11.64 3.00 9.33 18.00 56.01 3.74 - 3 .OO - 18.00 81.15 'See Exhibit A for location and definition of each reach. The final maximum peak flow capacity for each agency will be determined by applying these percentages to the particular reach running full as finally constructed. For purposes of di stri buti ng costs, other than direct costs for the reaches, the costs shall be shared by all four agencies in accordance with their capacity ownership, for each reach and for the construction cost of each reach. These computations are shown in Exhibit "8" and are summarized as foll ows: CARLSBAD 35.90 percent VISTA 9.70 percent B'JENA 7.77 percer,t SAN MARCOS 46.63 percent Fi nal adjustments to these percentages wi 11 be made after the INTEXEPTOR i s finally constructed and all costs are known. -3- .. Article 4. compl eted shall PRE-CONSTRUCTION: - The pre-construc ti on work to be include, but not be limited to, the following tasks: 1. Preparation of an Environmental Impact Report (EIR) the project. 2. Revisions to the construction documents prepared by NESTE, 3. Acquisition of permits. 4. 5. Admini stration, miscell aneous engineeri rig, and legal tasks. BRUDIM & STONE, INC. for Reaches 1 through 8 and 10. Acquisition of easements and rights-of-way. Since SAN MARCOS has already prepared an EIR and conpleted construction docurnents for Reaches 1 through 8 and Reach 10 for their original "Land - Outfall Interceptor" Project, SAM MARCOS will not share in any additional costs for tasks 1 and 2. Costs for tasks 1 and 2 shall be shared between the other three agencies in accordance with their capacity ownership percentages (oni tti ng SAN MARCOS) for each reach so weighted and averaged to account for the construction cost of each reach. These computations are shown in Exhibit C and summarized as follows: CARLSi3A.D 67.27 percent VISTA 18.1G percent BUENA 14.55 percent Final adjustments to these percentages will be made after the project is final ly constructed and a1 1 costs are known. Pre-construction costs shall be shared among the agencies in accordance with their capacity ownership as set forth in Article 3. With the assistance of BUENA, CARLSBAD and VISTA, SAN MARCOS shall take any and all steps necessary to acquire easements of right-of-way for the project. In the event eminent domain proceedings are necessary, all PARTIES agree to take any necessary legal proceedings required. All PARTIES agree to adopt any necessary resolutions connected wi th said 1 egal proceedings. The cost of all such legal proceedings shall be borne in accordance with Article 3. Article 5. CONSTRUCTION: SAN MARCOS shall be the contracting agency, sha'l! adininister the construction contract, in accordance with Division 12, \.later Code, State of California, and shall take any and all steps necessary to ensure the INTERCEPTOR is completed in accordance with the plans and specifications. Change orders or amendncnts to the approved plans and specifications affecting the costs to be paid by other PARTIES hereto may be -4- authorized by SAN MARCOS on individual to an aggregate of five (5%) perc:ent change orders of $25,000.00 or less, up of the INTERCEPTOR construction costs, without approval from the other affected PARTIES. Article 6. COST ACCOUNT1 NG (Pre-Construction and Construction) : SAN MARCOS shall keep and maintain proper books of account and records in which complete and current entries !;hall be made of all transactions. For the construction contract of the project SAN MARCOS shall prepare or cause to be prepared a cash flow table. The cash flow tables shall be updated quarterly to reflect any changes in the schedules or in anticipated costs, and shall reflect the capacity ownerships shown in Articles 3. Upon execution of "Notice to Proceed'' of contract, all1 of the PARTIES hereto shall deposit in a trust fund to be held by SAN MARCOS fifteen (15%) percent of each PARTY'S share of the estimated total construction costs as shown in initial cash flow table. SAtJ MARCOS shall then bill each of the PARTIES quarterly, in advance to insure that SAN MARCOS always has sufficient funds on hand to make timely disbursements in the Administration of the project. VISTA, BUENA, and CARUBAD shall pay such statements within a reasonable period thereafter. SAN MARCOS shall subinit with each quarterly billing a copy of the updated cash flow table snowing how each PARTY'S aniicipatsd costs were established. In the event that SAN MARCOS borrows any monies in order to pay such costs as they become due because of delay in required payments by any of the parties hereto, the costs of such borrowing shall be paid by the PARTY or PARTIES causing such delay in proportion to the amount of their respective obligations and the period of delay caused by each such PARTY. SAN MARCOS shall invest all deposits made with it pursuant to this Agreement until needed for payment of the costs and all earnings thereon shall inure to the PARTIES hereto in proportion to tbe respective amounts credited to them. SAN MARCOS shall be strictly accountable to all PARTIES hereto for all funds received by it pursuant to this Agreement, and shall maintain and make available to the PARTIES hereto adequate records of all receipts and di sbwsesents pursuant thereto. ROUTINE MAINTENANCE AND OPERATION OF T'rlE PROJECT: On completion of the INTERCEPTOR, each PARTY shall enjoy the capacity ownerships set forth in Article 3. However, SA14 MARCOS shall provide routine maintenance and operation functions for the INTERCE?TOR in accordance with this Agreement. -5- Article 7. Costs of maintenance and operation shall be shared by the PARTIES hereto in proportion to their capacity ownerships, as set forth in Article 3. Costs of expendables for all PARTIES, such as, but not limited to, power, chemicals, etc., will be borne and paid by each of the PARTIES in a ratio of their flow to the total flow of wastewater transported through the INTERCEPTOR for each of the PARTIES for the preceding calendar year. Until such tine as a preceding calendar year is available, the period of time shall be the cumulative preceding months of operation. Costs of expendables benefitting less than all PARTIES shall be borne by the PARTY or PARTIES concerned. SAN MARCOS shall bill VISTA, BUENA, and CARLSBAD periodical 7y (but not less than annually) for that PARTY'S share of such costs and maintenance; VISTA, BUENA, and CARLSBAD shall pay such statement within a reasonable period of time thereafter. SAN MARCOS shall keep and maintain proper books of account and records in which complete and current entries shall be made of all transactions, including all receipts and disbursements, relating to the administration, maintenance, operation, and repair of the INTERCEPTOR; VISTA, BUENA, and CMLSBAD shall have thrt right, at reasonable tines, from tine to time, during regular business hocrs to inspect all sirch books ar;d records to verify afiy statement rendered by SAN MARCOS to VISTA, BUENA, or CARLSBAD for charges payable by those PARTIES to SAN MARCOS. SAN MARCOS shall utilize the "Uniform Accounting Program'' of the State Controller's office for this purpose. It is acknowledged and agreed by the PARTIES that it is difficult to establish in advance a detailed plan for accounting and allocation of operation and maintenance costs. Maintenance and operating costs shall mean the necessary costs of maintaining and operating the INTERCEPTOR based on general ly accepted accounti ng pri nci p'l es, i ncl udi ng, but not 1 imi ted to, expenses necessary to maintain and preserve the INTERCEPTOR in good repair and working order, as well as insurance, taxes, administration, and any costs attributable to maintenance and operation. Article 8. REPAIRS OR REPLACEMENT: Except in cases of err,ergency repairs, prior to making my repairs to any part of the INTERCEPTOR in which VISTA, BUENA, or CARLSBAD have capacity rights which are estimated to cost in excess of Ten Thousand Dollars, !;AN HARCOS shall obtain prior approval of VISTA, BUENA, and CARLSBAD for any such expenditures. The expenses of repair shall be charged to each PARTY on the basis of capacity ownership in the reach involved, and shall be substantiated by -6- // customary accounting procedures; and shall be paid by VISTA, BUENA, and CAKLSBAD within a reasonable period of time provided, however, such costs benefitting less than all PARTIES shall be bcrrne by the PARTY or PARTIES concerned. The cost of replacing any portion of the INTERCEPTOR shall be alJocated on the basis of the capacity of ownership as set forth herein for the respective reach of the INTERCEPTOR being repl aced. SAN MARCOS shall undertake any necessary repairs or replacement at the earl i est possi bl e date. Article 9. METERS: VISTA, BUENA and SAN MARCOS shall maintain meters to measure the flow of wastewater into the INTERCEPTOR. CARLSBAD'S flow shall be determined by subtracting the sum of the flows from VISTA, BUENA, and SAN MARCOS from the total flows measured by the Palomar Parshall flume meter at the headworks of the Encina Water Pollution Control Facilities. Each PARTY shall bear the full cost of the meter and appurtenances installed for the use of that PARTY in measuring the amount of wastewater discharge into the INTERCEPTOR. Article 10. PR.OHIBlTION OF TOXIC bL4TERIALS: Each PARTY agrees to adopt and enforce on a conti nui ng basi s resul ations prohibiting the di scharge of toxic materials to the Encina Water Pollution Control Facilities. Each PARTY agrees to enforce rules and regulations relative to the discharge of sewage and wastewater to the INTERCEPTOR to insure that anything i ntroduced into the INTERCEPTOR i s consi stent wi th tbe Enci na NPDES di scharge permi t. Any PARTY failing to comply w.ith the provisions of this Article shall pay any costs directly or indirectly resulting therefrom, including the cost of ascertaining and establishing that; such violation did occur as well as any fines, penal ties, engineering, accounting, administrative and legal costs, as well as any resul ti ng increased operating, maintenance and repl acenent or repair costs that are incurred. Article 11. INDEMNITY OF VISTA, BUENA, AND CARLSBAD: SAN MARCOS sh~ti'l indemnify, assme the defense of, and hold free and harmless, VISTA, BUENA, and CARLSBAD, their officers, directors, agents and employees from any and all obligations, liabilities, 'liens, claims, demands, losses, damages and expenses, of whatever type or nature, including, but not limited to, attorney's fees and all litigation costs arising out of SAN MARCOS'S operation or maintenance of the INTERCEPTOR or any other act or omission to act by SAN ,- MARCOS, its agents , servants , empl oyees, i nvi tees, or independent contractors relating to the operation and maintenance of the INTERCEPTOR. Notwithstanding , the foregoing, the i ndemni ty agreement created by thi s Article shall not indemnify VISTA, BUENA, or CARLSBAD, their directors, agents or employees against any liability arising from the negligence or willful misconduct of VISTA, BUENA, or CRRLSBAD, their officers, directors, agents, empl oyees or independent contractors. Article 12. SAN MARCOS TO MAINTAIN INSURANCE: SAN MARCOS shall maintain in force, beginning with the completion of the construction and extending through the full period of this Agreement, a full comprehensive public liability and property damage insurance policy insuring against any and all claims for injuries or death of persons or damage to property occurring in, upon, or about the property sub,ject to this Agreement. The insurance contract shall have limits of not less than $1,000,000.00 single-1 imit coverage; VISTA, BUENA, and CARLSBAD, their officers, directors, agents and employees, shall be listed as named insureds, and it shall provide for at least forty-five (45) days notice of cancellation or modification of ctjverage or limits. Said insurance shall be included as an operating and naintsnance expense as provided in Articfs 7. Article 13. NOTICES: Notices which any PARTY is required to give or desires to give hereunder may be served upon another PARTY by personally delivering a copy thereof, or by mailing any such notice by certified nail, return receipt requested, postage prepaid, addressed as follows: CITY OF CARLSBAD 1200 Elm Avenue Carl sbad, Cal i fornia VISTA SANITATION DISTRICT P.O. Box 1988 Vista, California 92083 BUENA SANITATION DISTRICT c/o Department of Public k'orks (0384) County of San Diego County Operations Center 5555 Over1 and Avenue San Diego, Cal ifornia 921 23 SAN MARCOS COUNTY WATER DISTRICT 788 blest San Marcos Boulevard San Marcos, Cal i f orni a 92069 -8- .. Any PARTY may from time to time designate a different address for notice by notifying the other PARTIES; any notice mailed by regular nail shall be deemed received by the PARTY to whom such notice is addressed on the date of the return receipt. Article 14. AMENDMENTS TO THIS AGREEMENT: This Agreement may not be altered in whole or in part except by modification in writing, executed by all PARTIES to this Agreement. Article 15. ATTORNEY'S FEES: In the event any litigation in law or in equity, including action for declaratory relief, is brought to enforce or interpret the provisions or performance of thi s Agreement, the prevai 1 i ng - PARTY shall be entitled to the award of a reasonable attorney's fee and the costs of the proceeding, which shall be determined by the Court or the presiding officer having authority to make this determination. If any PARTY to this Agreement becomes a party to any litigation, concerning the enforcement or i nterpretation of the provi si ons of thi s Agreement or the performance of this Agreement by reason of any act or omission of the other PARTY or authorized representatives of another PARTY to this Agreement and not by any act or omission of its authorized representatives, the PAiiTY that catlsits the other PARTY to become involved in the proceeding shall be liable to that PARTY for reasonable attorney's fees and costs of the proceeding incurred by that PARTY in the proceeding. The award of reasonable attorney's fees and costs shall be determined as provided above . In the event opposing PARTIES have each prevailed on one or more causes of action actually contested or admitted by pleadings or pre-heari ng documents on file, the presiding officer shall make an award of attorney's fees and costs, but the presiding officer may prorate such fees and costs between prevailing PARTIES based on the necessity of the proceeding and the importance of the issue upon which each PARTY has prevailed. Article 16. ENTIRE AGREEMENT: - This Agreement, together with the Exhi bi ts hereto, contains a1 1 representations and the entire understanding bet'deen the PARTIES with respect to the subject matter of this Agreement. Any prior correspondence, memoranda or agreements are rep1 aced in total by this Agreement and Exhibits hereto. Article 17. ASSIGNMENT: No PARTY to this Agreement shall be entitled to assign all or any portion of their rights or obligations contained in this Agreement without obtaining the prior written consent of the other -9- .. PARTIES. This shall not apply to successor agencies which are also PARTIES to this Agreement. Article 18. BINDING EFFECT: This Agreement shall inure to the benefit of and be binding upon PARTIES hereto and their respective successors, heirs, and assigns. Article 19. APPLICABLE LA!4: This Agreement and any disputes relating to this Agreement shall be construed under the laws of the State of Cal i f orni a. Article 20. U NEMFORCEABLE PROV I S I OElS : The terms, conditions, and covenants of thi s Agreement should be construed, wherever possible, consi stent with applicable laws and regulations. To the extent that any provision of the Agreement violates any applicable 1 aw or regul ati on, the renai ni ng provi si ons shall neverthel ess be carried i nto full force and effect and remain enforceable. Articl e 27 . VENUE: For the purpose of litigation or arbitration, venue shall lie in the North County Judicial Dl'strict, County of San Diego, State of California, or, if such venue cannot be exercised, in the Federal or State Court nea.rest to the North Coiirtiy Judicial District, County of San Diego. Article 22. TERM: This Agrsenent is executed and is to Si3 performed in the North County Judicial District, County of San Diego, State of &a7 i forni a, and consi sts of 23 pages (i ncl udi ng Exhibits) , and shall continue in effect until terminated by mutual agreement of the PARTIES. SIGNATURE AND SEALS: This Agreement shall be effective on and from the day and year first above written. - Article 23. IN IiITMESS WHEREOF, we have hereunto set our hands and seals. ATTEST: ATTEST: ATTEST : - Secretary CITY OF CARLSBAD ; SAN MARCOS COUIiTY WATAR DISTRICT & r, President v I STA SANI ~ATI ON DISTRICT Chairman BUENA SANITATION DISTRICT -1 0- Clerk of the Board of Directors e . EXHIBIT "A" , FRASER & ASSOCIATES, Consulting Engineers i . I t 7 0 a T d h ! t i ! t ..: FRASER & ASSOCIATES, Consulting Engineers RE+w+/ 10 Corpir,ic‘trr-D .. ~. . .. - - . ._ ... ., ‘... - - .. . .. . -. .. .. .I . .- I. , -. . .. . .. -. . .. .'i . . .. . , . . . . . . .. ,. , .- .. -. .- ._-..-. .- . I. .. .. . .- .. . -. .. . .,.. ,. .. : . . . . ..__ - -_ - ._ -.a . .- a EXHIBIT "C" FRASER & ASSOCIATES, Consult!ng Engineers ... _- __^I_. -_-- . - - - EXH 16 1.7 "C \ i .. .. - .. .. .. ...... ..... .- . - .. I .. .. .. ... .. ...... .- ... - -. .. .*,. . ...... .. ... ..... ....... . _. .... .. .. .. __ ..... ...... .... .. - ........ ..... - .. .... -. .... .. ._ ... .. .. ...... - .. .. ... . .. .. _, ._ ... .......... ... I, ,-: ......... ci' J6 .- .. ..... 2.- ..... .. .. I AMENDMENT ONE TO PALOMAR JOINT LAND OUTFALL INTERCEPTOR INTERAGENCY AGREEMENT This agreement is made and entered into this day of , 1983 by and between the City of Carlsbad (CARLSBAD), the San Marcos County Water District (SAN MARCOS), the City of Vista (VISTA), and the Buena Sanitation District (BUENA) [hereinafter collectively referred to as PARTIES] . RECITALS 1. The PARTIES have entered into an agreement entitled Palomar Joint Land Outfall Interceptor Interagency Agreement. 2. At the time the agreement was approved by the PARTIES it did not reflect the understanding of the PARTIES concerning the allocation of cost for the INTERCEPTOR. 3. The intent of the PARTIES is to share the operation and maintenance cost in proportion to the capacity ownership of each party, and to allocate the cost of construction based on an oversizing concept. This amendment implements that intent of the PARTIES. NOW, THEREFORE in consideration of the recitals the PARTIES hereto agree that Articles 3, 4, and 5 of the Palomar Joint Outfall Interceptor Interagency Agreement are amended to read as follows: /// /// /// /// L ARTICLE 3. CAPACITY OWNERSHIP AND OPERATION AND MAINTENANCE a) The ownership of capacity in each reach of the INTERCEPTOR is shown in the calculations in Exhibit "B" and summarized in Table I. TABLE I CAPACITY OWNERSHIP PERCENTAGES Reach ' Carlsbad Vista Buena San Marcos No . MGD* 8 MGD* % MGD* % MGD* %- - 1 2 3 4 5 6 7 8 (9 10 20.35 45.13 3.74 8.29 3-00 6.65 19.79 44.44 3.74 8.40 3.00 6.74 17.66 41.65 3.74 8.82 3.00 7.07 14.08 36.27 3-74 9.63 3.00 7.73 13.95 36.06 3.74 9.67 3.00 7.75 13.90 35.97 3.74 9.68 3.00 7.76 8.05 24.55 3-74 11.44 3.00 9.15 7.40 23.02 3.74 11.64 3.00 9.33 4.18 18.85 - - Intentionally Omitted) - - 18.00 39.93 18.00 40.42 18.00 42.46 18.00 46.37 18.00 46.52 18.00 46.59 18.00 54.86 18.00 56.01 18.00 81.15 See Exhibit "A" for location and definition of each reach. I * Estimated Peak Flow in million gallons per day. The final maximum peak flow capacity for each agency will be determined by applying these percentages to the particular reach running full as finally constructed. b) SAN MARCOS shall be responsible for operation and maintenance. For purposes of distributing costs of operation and maintenance of each reach, the costs shall be shared by all four agencies in accordance with their capacity ownership as shown on Table I. Those costs that cannot be assigned to individual reaches shall be shared by all agencies in the proportions shown in Exhibit "B" and are summarized as follows: CARLSBAD 35.90 percent VISTA 9.70 percent BUENA 7.77 percent SAN MARCOS 46 . 63 percent Final adjustments to the percentages shown on Exhibit "B" and summarized in this section will be made after the INTERCEPTOR is finally constructed and all costs are known. ARTICLE 4. PRECONSTRUCTION The pre-construction work to be completed shall include, but not be limited to, the following tasks: 1. Preparation of an Environmental Impact Report (EIR) for the project. 2. Revisions to the construction documents prepared by NESTE, BRUDIN & STONE, INC. for Reaches 1 through 8 and 10. 3. Acquisition of permits. 4. Acquisition of easements and rights-of-way. 5. Administration, miscellaneous engineering, and legal tasks. Since SAN MARCOS has ready prepared in EIR and completed construction documents for Reaches 1 through 8 and Reach 10 for their original "Land Outfall Interceptor" Project, SAN MARCOS will not share in any additional costs for tasks 1 and 2. I 3. I. Costs for tasks 1 and 2 shall be shared between the other three agencies in accordance with their capacity ownership percentages (omitting SAN MARCOS) for each reach so weighted and averaged to account for the construction cost of each reach. These computations are shown in Exhibit "C" and summarized as follows: CARLSBAD 67.27 percent VISTA 18.18 percent BUENA 14.55 percent Final adjustments to these percentages will be made after the project is finally constructed and all costs are known. Pre-construction costs for tasks 3, 4, and 5 shall be shared among the agencies in accordance with their capacity ownership as set forth in Article 3. With the assistance of BUENA, CARLSBAD and VISTA, SAN MARCOS shall take any and all steps necessary to acquire easements of right- of-way for the project. In the event eminent domain proceedings are necessary, all PARTIES agree to take any necessary legal proceedings required. All PARTIES agree to adopt any necessary resolutions connected with said legal proceedings. The cost of all such legal proceedings shall be borne in accordance with Article 3. ARTICLE 5. CONSTRUCTION a) SAN MARCOS shall be the contracting agency, shall administer the construction contract , in accordance with Division 12, Water Code, State of California, and shall take any and all steps necessary to ensure the INTERCEPTOR is completed in accordance with the plans and specifications. Change orders or amendments to the 4. approved plans and specifications affecting the costs to be paid by other PARTIES hereto may be authorized by SAN MARCOS on individual change orders of $25,000.00 or less, up to an aggregate of five (5%) percent of the INTERCEPTOR construction costs, without approval from the other affected PARTIES. b) Cost of construction for Reaches 1 through 10 inclusive [Palomar Joint Land Outfall Interceptor] shall be borne as follows: SAN MARCOS shall bear the total cost of construction for the Reaches of the Palomar Joint Land Outfall Interceptor which are included within the Land Outfall Interceptor for State Water Resources Control Board Project No. C-06-1571-100 [Project No. C-06-1571-1001. For the cost of oversizing, each party shall bear the cost of construction for the difference between the cost of Project No. C-06-1571-100 and the cost as actually constructed for each reach in proportion to the capacity ownership established by Article 3.a. IN WITNESS WHEREOF, we have hereunto set our hands and seals. ATTEST: CITY OF CARLSBAD ATTEST : SAN MARCOS COUNTY WATER DISTRICT - James F. McKay, Secretary Stanley A. Mahr, President 5. . 9’ ? ATTEST: CITY OF VISTA - City Clerk Mayor BUENA SANITATION DISTRICT Clerk of the Board of Directors 6.