HomeMy WebLinkAbout2020-11-03; Municipal Water District; Resolution 1646RESOLUTION NO. 1646
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD
MUNICIPAL WATER DISTRICT OF THE CITY OF CARLSBAD, CALIFORNIA,
AUTHORIZING EXECUTION OF A MEMORANDUM OF UNDERSTANDING
WITH ENCINA WASTEWATER AUTHORITY FOR REMEDIATION OF SOIL
SETTLEMENT ADJACENT TO THE FLOW EQUALIZATION BASINS EAST OF THE
CARLSBAD WATER RECYCLING FACILITY
WHEREAS, the Carlsbad Municipal Water District (CMWD) Board of Directors of the City of
Carlsbad, California, has determined it necessary and in the public interest to execute a Memorandum
of Understanding (MOU) between CMWD and Encina Wastewater Authority (EWA) for soil settlement
remediation adjacent to the flow equalization basins; and
WHEREAS, the City of Carlsbad, the City of Vista, the Leucadia County Water District, the
Vallecitos Water District, the City of Encinitas, and the Buena Sanitation District (collectively the
"Member Agencies"), are signatories to the joint exercise of powers agreement known as the Revised
Basic Agreement ("RBA") for Ownership, Operation and Maintenance of the EWA Joint Sewerage
System; and
WHEREAS, the Member Agencies executed an agreement, dated June 28, 1995, authorizing
EWA to acquire land on behalf of the Member Agencies (the "1995 Agreement") under which EWA
purchased approximately thirty-seven (37) acres of land adjacent to the Encina Water Pollution Control
Facility's ("EWPCF") southerly boundary (the "South Parcel"); and
WHEREAS, in 2001, the Member Agencies entered into an agreement (the "Transfer
Agreement") whereby each Member Agency quitclaimed its equitable interest and legal title in the
South Parcel to EWA, and the City of Carlsbad, using CMWD transferred funds, purchased from EWA a
portion of the South Parcel (the "Recycled Water Project Site" or "CWRF") to construct and operate a
recycled water treatment project; and
WHEREAS, in 2002, EWA and the City of Carlsbad executed the Flow Equalization Project Joint
Use Facilities Agreement (the "Facilities Agreement") whereby the Parties cooperated in the design
and construction of the flow equalization basins; and
WHEREAS, since construction, CMWD regularly uses the flow equalization facilities, and the
"Add-On" facilities connecting the CWRF to the east flow equalization basin consistent with the
Facilities Agreement and the RBA; and
WHEREAS, CMWD entered into a MOU with EWA for operation and maintenance of the CWRF,
owned by CMWD; and Nov. 3, 2020 Item #3 Page 5 of 23
WHEREAS, EWA's use of the flow equalization facilities is to divert wastewater into the flow
equalization facilities during high flows to prevent spills and CMWD's use of the flow equalization
facilities is at different times and provides for customers' increased irrigation demands; and
WHEREAS, in response to the continuing soil settlement adjacent to the flow equalization
facilities, the Parties agree that certain remediation work must be performed; and
WHEREAS, given EWA's and the City of Carlsbad's joint use of the flow equalization facilities and
based on the principles of joint participation described in the RBA, each Party (EWA and CMWD) desires
to pay 50% of consultant and contractor costs associated with the remediation work as described in
this MOU; and
WHEREAS, on Feb. 27, 2020, EWA engaged Carollo Engineers, Inc. to design and develop plans,
specifications and oversee bidding and construction activities necessary to remediate the settling soils
around the east flow equalization basin; and
WHEREAS, plans and specifications have since been completed; and
WHEREAS, EWA and CMWD agree that remediating the settling soils around the flow
equalization basins is essential for the ongoing operations of the CWRF, and therefore enter into this
MOU in furtherance of the Flow Equalization Basin Remediation; and
WHEREAS, execution of the MOU will allow EWA to release the project for public bidding and
subsequently award a construction contract to the lowest responsive and responsible bidder; and
WHEREAS, sufficient funding is available for the project in CMWD's Capital Improvement
Program Budget.
NOW, THEREFORE, BE IT RESOLVED by the CWMD Board of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the President of the CMWD Board of Directors of the City of Carlsbad is hereby
authorized and directed to execute the MOU between CMWD and EWA, attached hereto as
Attachment A.
3. That CMWD staff is authorized and directed to monitor construction progress and
authorize progress payments, as described under the terms of the MOU, attached hereto as
Attachment A.
Nov. 3, 2020 Item #3 Page 6 of 23
PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad Municipal Water
District Board of Directors of the City of Carlsbad on the 3rd day of November, 2020, by the following
vote, to wit:
AYES: Hall, Blackburn, Bhat-Patel, Schumacher.
NAYS: None.
ABSENT: None.
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MATT HALL, President
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BARBARA ENGLESON, Secretary
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ATTACHMENT A
MEMORANDUM OF UNDERSTANDING FOR
FLOW EQUALIZATION BASIN REMEDIATION
This Memorandum of Understanding for Flow Equalization Basin Remediation (MOU) is
entered into as of , 2020 by and between the Carlsbad Municipal Water
District, a Public Agency organized under the Municipal Water District Law of 1911, and a
Subsidiary District of the City of Carlsbad, hereinafter referred to as "CMWD" and the Encina
Wastewater Authority, a joint powers authority organized pursuant to Government Code §§
6500 et seq., hereinafter referred to as "EWA". Each shall be referred to in this MOU as a
"Party" and collectively as the "Parties".
RECITALS
A. The City of Carlsbad (the "City"), the City of Vista, the Leucadia County Water
District, the Vallecitos Water District, the City of Encinitas, and the Buena Sanitation District
(collectively the "Member Agencies"), are signatories to the joint exercise of powers agreement
known as the Revised Basic Agreement ("RBA") for Ownership, Operation and Maintenance of
the EWA Joint Sewerage System.
B. The Member Agencies executed an agreement, dated June 28, 1995, authorizing
EWA to acquire land on behalf of the Member Agencies (the "1995 Agreement") under which
EWA purchased approximately thirty-seven (37) acres of land adjacent to the Encina Water
Pollution Control Facility's southerly boundary (the "South Parcel").
C. In 2001, the Member Agencies entered into an agreement (the "Transfer
Agreement") whereby each Member Agency quitclaimed its equitable interest and legal title in
the South Parcel to EWA, and the City, using transferred CMWD funds, purchased from EWA a
portion of the South Parcel (the "Carlsbad Water Recycling Facility" or "CWRF") to construct
and operate a recycled water treatment project.
D. In 2002, EWA and the City executed the Facilities Agreement whereby the Parties
cooperated in the design and construction of the CWRF. Since construction, CMWD regularly
uses the Flow Equalization Facilities, and the "Add-On" facilities connecting the CWRF to the East
Flow Equalization Basin consistent with the Facilities Agreement and the RBA.
E. In 2005, EWA and CMWD executed a Memorandum of Understanding for the
operation and maintenance of the CWRF. To the extent the stabilization and remediation work
described in this MOU allows for the continued operation of CWRF, CMWD desires to enter into
this MOU with EWA.
F. When EWA uses the Flow Equalization Facilities it diverts water into the Flow
Equalization Facilities during high flows to prevent spills. Conversely, CMWD uses the Flow
Equalization Facilities to address increased customer irrigation demands.
G. In response to the recent subsidence or settling of soils around the Flow
Equalization Basis, the Parties agree that certain remediation work, described below, must be
performed.
H. Based on the principals of joint participation described in the RBA, each Party
agrees to pay 50% of consultant and contractor costs associated with the remediation work as
described in this MOU.
Nov. 3, 2020 Item #3 Page 8 of 23
On February 27, 2020, EWA engaged Carollo Engineers, Inc. (Consultant) to
design and develop plans, specifications and oversee bidding and construction activities
necessary to remediate the settling soils around the Flow Equalization Basins.
J. The Parties agree that remediating the settling soils around the Flow Equalization
Basins (as shown in Exhibit A) is essential for the ongoing operations of the CWRF, and therefore
enter into this MOU in furtherance of the Flow Equalization Basin Remediation.
NOW, THEREFORE, in consideration of the mutual promises, obligations and covenants
set forth herein, CMWD and EWA agree to the following terms:
Section I. EWA'S RESPONSIBILITIES
1.1 EWA shall be responsible for oversight and management of the above-referenced
agreement with Consultant for design, planning, bidding and oversight of the remediation work
covering the subsidence of soil around the Flow Equalization Basins as shown in Exhibit A. The
remediation work includes paving, grading, curb and gutter repair, slope stabilization, and
installation of a flap gate on the recycled water pipeline feeding the East Flow Equalization Basin.
(i) EWA shall approve the final design of the remediation plans and
specifications, subject to section 2.1 of this MOU, and shall provide reasonable notice to CMWD
before approving the final design.
(ii) EWA shall provide to CMWD, through CMWD's Project Manager, copies of
the monthly statements from Consultant within 10 business days of receipt by EWA. CMWD shall
notify EWA of any errors concerning statements of amounts due within ten (10) business days of
receipt by CMWD's Project Manager.
1.2 EWA shall conduct the bidding process and shall contract for the remediation work
described in Section 1.1 above (the "Construction Contract") in accordance with EWA's policies
and applicable law. EWA's purchasing policies shall apply to implementation and performance
of the Construction Contract, and any other activity under this MOU. EWA shall oversee the
performance of the Construction Contract and be responsible for accepting the remediation work
upon completion.
1.3 EWA shall itemize and bill, on a quarterly basis, 50% of actual costs related to the
Consultant's contract and the Construction Contract in accordance with the RBA; EWA shall be
responsible for 50% of such costs.
Section II. CMWD'S RESPONSIBILITIES
2.1 CMWD shall be given a reasonable opportunity to review and comment upon the
plans and specifications provided by Consultant.
2.2 CMWD shall pay 50% of all costs related to the Consultants' Contract and the
Construction Contract.
2.3 CMWD waives all claims and releases EWA from all liability for damages that
occur due to Construction Contract work stoppages or delays beyond the control of EWA,
including but not limited to Acts of God, acts of a public enemy, acts of a government agency
other than EWA, acts of CMWD, acts of a contractor in the performance of a contract with CMWD,
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DOCS 4220761.3 Nov. 3, 2020 Item #3 Page 9 of 23
fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and weather, or delays
of subcontractors due to such causes, or delays caused by failure of CMWD, or the owner of a
utility, to provide for removal or relocation of existing utility facilities.
Section III. COST ALLOCATION
3.1 It is the intent of the Parties that each Party bear one-half of all costs incurred for
completion of the Consultant's contract and the Construction Contract described in this MOU.
3.2 EWA's share of costs shall be allocated among the Member Agencies in
accordance with each agency's percentage of ownership of Unit I, as set forth in the RBA.
Section IV. OWNERSHIP
4.1 EWA is the owner of the Flow Equalization Facilities, as described in Exhibit A on
behalf of the Member Agencies, excluding the Add-On Facilities. The Member Agencies share
beneficial ownership of the Flow Equalization Facilities according to each Member Agency's
percentage ownership in Unit I, as set forth in the RBA.
4.2 CMWD is the owner of its Water Recycling Project and the Add-On Facilities, as
described in Exhibit A.
Section V. ACCOUNTING AND AUDITS
5.1 EWA shall maintain financial records showing all expenses associated with or
related to the Flow Equalization Facilities Settlement Project. These records shall conform to
generally accepted accounting principles and shall be examined by a certified public accountant
as a part of EWA's annual audit.
Section VI. LIABILITY
6.1 CMWD shall indemnify, defend and hold EWA and the other Member Agencies,
their officers, agents and employees, harmless from any and all claims, demands, liens, actions,
liabilities, costs, and expenses, including reasonable attorneys' fees, based upon or arising out of
or claimed to have arisen out of any act or omission by CMWD, its officers, agents or employees
arising out of this MOU, except for those claims and costs determined to be due to the negligent
or willful misconduct of EWA and the other Member Agencies, their officers, agents, or
employees.
6.2 EWA and the other Member Agencies shall indemnify, defend and hold harmless
CMWD and its officers, agents and employees, from any and all claims, demands, liens, actions,
liabilities, costs, and expenses, including reasonable attorneys' fees, based upon or arising out of
or claimed to have arisen out of any act or omission by EWA, the other Member Agencies, their
officers, agents or employees arising out of this MOU, except for those claims and costs
determined to be due to the negligent or willful misconduct of CMWD, its officers, agents, or
employees.
Section VII. INSURANCE
7.1 CMWD shall maintain general liability coverage in connection with, or related to,
the work to be performed by CMWD under this MOU and the Transfer Agreement. The aforesaid
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DOCS 4220761.3 Nov. 3, 2020 Item #3 Page 10 of 23
coverage shall in no manner limit CMWD's indemnity provisions of the MOU. In addition, CMWD
shall obtain such property insurance as CMWD may deem necessary to safeguard the CWRF.
EWA and the other Member Agencies shall be named as additional insureds on the general
liability coverage obtained by CMWD. The aforesaid coverage shall in no manner limit the
indemnity provisions of this MOU.
7.2 EWA shall maintain general liability coverage in connection with, or related to, the
work to be performed by EWA under this MOU. The aforesaid coverage shall in no manner limit
EWA's indemnity provisions of the MOU. EWA shall take reasonable steps to require that the
Consultant, and Contractors engaged through Consultant, procure and maintain such insurance
as EWA may deem prudent and reasonably available during the life of the contracts, including
coverage for worker's compensation, builder's all-risk, fire, professional liability and/or errors and
omissions, and property damage, in accordance with EWA's policies and procedures.
Section VIII. NOTICES
8.1 For CMWD, all notices, statements, demands, requests, consents, approvals,
authorizations, agreements, appointments or designations hereunder shall be given in writing and
addressed to:
Executive Manager
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Assistant Executive Manager
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
General Manager
Carlsbad Municipal Water District
5950 El Camino Real
Carlsbad, CA 92008-8802
With a copy to:
City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Deputy City Manager
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
8.2 For EWA, all notices, statements, demands, requests, consents, approvals,
authorizations, agreements, appointments or designations hereunder shall be given in writing and
addressed to: General Manager, ENCINA WASTEWATER AUTHORITY, 6200 Avenida Encinas,
Carlsbad, CA 92011.
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Section IX. DISPUTE RESOLUTION
9.1 Maintenance of a cooperative and mutually beneficial relationship between the
Parties is an important aspect of this MOU. Therefore, the means of resolution for any disputes,
claims, or controversies that may arise during the course of this MOU shall follow those
procedures described in Section 18 of the RBA.
9.2 Nothing in this MOU prohibits the Parties from seeking remedies available to them
at law.
Section X. SEVERABILITY
10.1 If any one or more of the terms, provisions, promises, covenants or conditions
hereof shall be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a
court of competent jurisdiction, each and all of the remaining terms, provisions, promises,
covenants and conditions hereof shall not be affected thereby and shall be valid and enforceable
to the fullest extent permitted by law.
Section XI. MODIFICATIONS
11.1 This MOU shall not be altered except by written amendment executed by both
Parties.
Section XII. GOVERNING LAW
12.1 This MOU is to be governed by and construed in accordance with the laws of the
State of California. The Parties agree and stipulate that the proper venue and jurisdiction for
resolution of any disputes between the Parties arising out of this MOU is San Diego County,
California.
IN WITNESS WHEREOF, the Parties agree to the terms set forth in this MOU and hereby
execute this MOU as of the day and year first above written.
CARLSBAD MUNICIPAL WATER DISTRICT By:
Its:
ENCINA WASTEWATER AUTHORITY By:
Its:
APPROVED AS TO FORM By:
Counsel for
Carlsbad Municipal Water District
APPROVED AS TO FORM By:
Counsel for
Encina Wastewater Authority
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