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HomeMy WebLinkAboutBuena Sanitation District; 1966-06-20;41-7. AommEmy: BETWEEV TI-11E BUENA SANITAr.E1707-17 D.:CS-7MT CT AND CITY OF CARLSBAD FOR THE LEASE BY CAALSE3AD OF CAPACITY IN THE ENCINA CUTFALL OF ':;:FEii; 7-:MENA SANITATION DTOrRICT This agreement, made and entered into this to2oday , j of .by and beteseen BUENA SANIT,TION DISTRICT, a county sanitation dietrict, formed and existing under the County Sanitation District Act tSeetior. 4700, et seq., Health and Safety Code) hereinafter sometimes referred to as "Buena" and the City of Carlsbad, a municipal corporation sometimes hereinafter referred toes "Carlsbad". W ITNESSET H STATEMENT OF PURPOSE 1 The City of Carlsbad and the Vista Sanitation District have entered into an agreement for the construction and owner- ship of a Joint Sewer System including a treatment plant and ocean outfall, said agreement being entitled "Basic Agreement Between Vista Sanitation District and the City of Carlsbad for the Acquisition and Construction of a Jotnt Sewer System", dated July 13, 1961, which bears County of San Diego Contract No. 1858-2129E. This agreement has been amended and supple- mented by several agreements including the agreement entitled "Second Supplement to Bate Agreement Between Vista Sanitation District and the City- of Carlsbad for the Acquisition and Construction of the Joint Sewer System", dated January 6 1964, by which Buena became a party to said Basic Agreement, said Basic Agreement as so amended and supplemented being herein- after sometimes referred to as "Basic Agreement", 2. Pursuant to Section 6 of the Sscond Supplement to the "Basic Agreement", Buena agrf,.ed to sell to Carlsbad capacity in the Buena Sewer designed to serve the population In "Area A" and "Area B" as delineay;ed or Exhibit E attached to said agreement, The portion of said Buena Sewer, desIg- nated Encina Outfall Sewer on said ';,thibit E, is designed to have a capacity to serve Area A an0 Area 3 in addition to a population of 3,000 persons in the Buena Service Area,, 3 In accordance with the tems and provisions of said Section 6, Carlsbad desires to lese capaeity in said Encina Outfall Sewer (hereinafter referrd to as Encina Outtalk and Buena desires to lease such capacity to Carlsbad as hereinafter set forth. NOW THEREFORE, the parties hereto agree as follows: Section 1. EFFECTIVE DATE. This agreement shall take effect Section 2, LEASE OF CAPACITY. Buena agrees to lease to Carlsbad the following listeA percentages of capacity in the Encina Outfall: Station to Station* o ± 00 20 + 81,43 33 + 36,43 42 a- 28.18 67 -4- 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 4- 56 94- _ Carl bad I�y is c; 76-fa ; MGD'" Capacity Amount 2 , 6 2,2 2,2 1,5 1,3 1. 1,2 34,88 31,71 28,21 28,21. 22.13 18.84 1.7,65 3 „65 $ 48,625 141.280 10,070 20,900 11,735 45,950 5,630 214410 Total $159,600 * Stations as shown on hereinafter mentioned plans * Million gallons per day., Slid Encina Outfal:l is the outfall sewer line shown on those certain plans entitled tled "Plans for the Project -Sheets 1 throurih 7 inclusive" on file In the office of the Department of Special District Services of the County of San Diego, 5555 Overland Avenue, Building 2, San Diego, California, a copy of which has been furnished to Carlsbad. Section 3. TERMS OF LEASE 1. Buena shall lease to Carlsbad for a period com- % mencing on or before July 1, 1966, 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 payable as follows: 30 equal annual payments of $5,320 each, beginning July 1, 1966, 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 are granted and shall be exercisable provided lessee is not in -3- default at the time lessee exercises the option to purchase, at least one month prior to the expiration of each year of the term of the lease. The purchase price shall be the sum of $159,600 less the amount of rental already paid to Buena under the terms of this agreement, 20 Carlsbades exercise of this option to purchase shall be by one months prior notice thereof, in writing, sent by registered or certified mail to Buena, and shall be effected by delivering into Buenas hands, Carlsbad°s check in the full amount of said purchase price together with any rental payment due at the time of the exercise of said option, at which time title to said capacity shall vest in Carlsbad, it being understood that until such time as Carlsbad exercises its option title to the capacity which is the subject of this agreement will remain in Buena. 3. Carlsbad shall not lose its last right to exercise said option although Carlsbad may not have given timely notice of its exercise, unless Carlsbad shall fall to exercise the same within ten (10) days after receipt of written notice from Buena to do so and to make prompt payment thereafter. Section 4, CAPACITY ® AVERAGE FLOW, The average flow of sewage from Carlsbad discharged through any portion of the Encina Outfall shall not exceed the amounts of capacity stated In terms of MGD for such portion as shown in Section 2 as the capacity being purchased by Carlsbad, "Average flow" shall mean the discharge of sewage expressed at a rate of flow in million gallons a day (MGD) and shall be computed by dividing the total gallons discharged during the fiscal year (July 1 to June 30) by the number of days within said year. Section 5. CONNECTIONS. Carlsbad, at its sole expense, shall construct, install, maintain, repair, replace and/or reconstruct any necessary transmission facilities from the Carlsbad Service Area to the Encina Outfall and the connec- tions of such transmission facilities to the Encina Outfall together with any necessary appurtenances. Section 6. ENGINEER'S APPROVAL, lation, construction, repair (except replacement and/or reconstruction of Encina Outfall shall be according to first approved by Buena's engineer. Section 7. AREAS TO BE SERVED. The location, instal- emergency repairs) the connections to the plans and specifications The capacity in the Encina Outfall to be acquired by Carlsbad under the terms of this agreement shall be used by Carlsbad only to serve that area which is within the Carlsbad Service Area, as designated on Exhibit E of the Second Supplement to the Basic Agreement, provided, however, that territory outside such areas as above described may be served by Carlsbad on a temporary basis with the written consent of Buena's engineer, which written consent shall specify such territory and the duration of such temporary service. Section 8. LIMITATIONS ON TYPE AND CONDITION OF SEWAGE. A. All sewage discharged by Carlsbad into Encina Outfall shall conform to the ordinances, resolutions, rules and regulations which Buena must adopt in accordance with Section 27 of the Basic Agreement concerning the condition of sewage and waste permitted to be discharged into the sewers under its control in order to prevent -5- the discharge into such sewers any sewage or waste which would be detrimental to the Joint System or any part thereof. B. Carlsbad shall not allow excessive infiltration or any surface or storm waters to be discharged into any sewer system or facilities served by the Encina Outfall. Carlsbad shall not allow cooling waters or other unpolluted :industrial waste to be discharged into such sewer system or facilities without the written consent of Buena thereto. Section 9. METERING. When it becomes necessary to meter the flow of sewage and upon demand by Buena after a show- ing of such necessity; or in the event that Carlsbad ys dis- satisfied with the cost of maintenance and operation oi' the Encina Outfall being charged to Carlsbad; and in any ev€c-it, the prior stated conditions notwithstanding, at a time prior to the expiration of five years from the date of this agreement, Carlsbad, shall, at its sole expense, install a meter at a lo- cation within the Encina Treatment Plant site specified by 3aena and such meter shall, be of a type and installed in a manner approved by Buena's engineer so as to measure the entire floc of sewage from the Encina Outfall into the Encina Treatment; Plant. Buena shall, at no expense to Carlsbad, install or cause to be installed such meters as may be necessary to meter the sewage discharged into the Encina Outfall by Buena or any other party authorized by Buena to discharge sewage into sale' Encina Outfall. The meters shall be operated and maintained by Buena in good working condition for the duration of this agree- ment, and Buena shall render reports of the metered flow to Carlsbad quarterly. The cost of operating said meters shall be considered a part of the cost of maintenance and operation of the Encina Outfall -6- Section I.O., INFILTRATION. It is understood and agreed that there will be inflow of water into the Encina Outfall be- cause of leakage between the Carlsbad connection and the Encina Treatment Plant. Buena shall estimate the total waters that infiltrate the Encina Outfall between said connection and treat- ment 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 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 sewage of such user for all purposes. Section 11. MAINTENANCE CHARGE. (a) During such period as Carlsbad is authorized to use a portion of 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 be in proportion to the average flow of sewage discharged into the Encina Outfall through Carlsbad's con- nections to said outfall as compared to the total average flow of sewage discharged into said Encina Outfall. (b) 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. (c) Buena shall keep accurate records of its cost of -7- maintaining and operating the Encina Outfall. and such r. aeorc.s shall be open to inspection by Carlsbad at all reasonable times. Section 12. CHARGE AGAINST CAPACITY Y RIGHTS IN ENCINA TREAT- MENT PLANT AND OCEAN OUTFA.LL., All sewage discharged into the Encina Outfall through Carlsbad' s connection, under the terms of this agreement and thereafter discharged into the Encina Treat- ment Plant, and all infiltration allocable to Carlsbad as deter- mined by Section 10 of this agreement, shall be charged against Carlsbad's capacity rights in and to the Encina Treatment Plant and Ocean Outfall as such rights have been determined by that certain agreement between the City of Carlsbad and Vista Sanita- tion District, entitled "Basic Agreement Between Vista Sanitation District and the City of Carlsbad for the Acquisition and Con- struction of a Joint Sewer Systems" dated July 13, 1961, together with all amendments and supplements thereto, including the Second Supplement to Basic Agreement Between Vista Sanitation District and the City of Carlsbad for the Acquisition and Construction of The Joint Sewer System, dated January 6,'1964, and shall be charged to Carlsbad for the purpose of computing the proportionate shares of the parties to the Basic Agreement In the cost of maintaining and operating the Encina Treatment Plant and Ocean Outfall. Section 13. TRANSFER OF TERRITORY If, because of annexa- tion, transfers, consolidation or other cause, any territory with- in the Carlsbad Service Area and served by the Encina Outfall is transferred to another jurisdiction,, Carlsbad shall remain re- sponsible and be charged for the sewage and infiltrated waters from such territory discharged into the Encina Outfall as provided in 8- this agreement until the parties hereto exeute an appropriate amendment to this agreement transferring such responsibility and the obligation to make payments pursuant to this agreement to such other jurisdiction, Section 14. REPAIRS, The Encina Outfall Sewer shall be maintained by Buena 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 out - fall sewer in good operating condition, Except as provided in Section 15, the cost of all repairs shall be part of the mainte- nance costs of the Encina Outfall, Section 15. MAJOR REPAIRS AND RECONSTRUCTION AND REPLACE- MENT. Notwithstanding the provisions of Section 14 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 repairs or replacethent or re- construction in the same proportion as the parties own or lease capacity In the Encina Outfall or -portion thereof repaired, re- placed or reconstructed. Section 16. INTERRUPTION OF SERVICE. In the event of an Interruption of service to Carlsbad by the Encina Outfall sewer, as.a result of disaster, operation of State or Federal law, dis- continuance or interruption of service to Buena by the Encina Treatment Plant or Ocean Outfall, or any other cause beyond the control of Buena, Buena shall bear no liability and shall be held free and harmless by Carlsbad from any claims and liabilities for anyiniurvto or damage to any person or persons or property or -9- 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 Buena as a result of such interruption of service. Section 17. ARBITRATION. Except as otherwise provided here- in, all controversies arising out of the interpretation or applica- tion of this agreement 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 sub- mitted to a board of three (3) arbitrators which shall be appointed, one by Buena, 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 arbi- tration, (2) the controversy to be arbitrated, (3) that it has appointed its nominees, and (4) that it requests the other party to appoint 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 ofo 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) days before said hearing, shall give each party written notice thereof. The arbitration shall be restricted to matters rel- ative 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 .hall be given an opportunity to be heard and to present evidence, Upon conclusion of the hearing or hearing the arbitration board shall reduce their findings of fact, conclusions of law and the award to writing, and shall sign the same and deliver one signed copy thereef to each public agency, Such award shall be final and binding upon both partlea. A majority finding shall govern If the arbitratorsdetermination is not unan- imous. 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 proceed- ings shall be shared equally. Any controversy which can be determined by an engineer's find- ings and which under this section could be submitted to arbitration may, if the parties thereto agree in writing to do $0, be submitted to a named engineer who shall be the sole arbitrator. Such engineer shall be a member of the American Society of Civil Engineers and shall be disinterested as hereinbefore in this section required of arbitrators on an arbitration board. He shall proceed in the same manner and shall make findings, conclusions and an award in the manner provided herein for an arbitration board. Section 18. NOTICE. Notices required or permitted under this agreement shall be sufficiently given if in writing and If either served personally upon or mailed by registered or certified mall to the clerk or secretary of the governing body of the affected party to this agreement. Section 19, LIABILITY. Nothing herein contained shall operate to relieve Carlsbad of any liability for damages to persons or property arising from or out of the instalHatlon, constuctlon, operation, maintenance, repair, replacement and/or reconatruction of the aforesaid sewer connections and appurtenances or from any action or inaction of Carlsbad or of ite officers, agent e or employees in connection therewith. And except as provided in Section 16 nothing herein. contained shall operate to relieve ]3uena of any liability for damages to persons or property arising from or out of the installation, con- struction, operation, maintenance, repair, replacement and/or reconstruction of the aforesaid sewer connections and appurte- nances or from any action or inaction of Buena or of its officers, agents or employees in connection therewith. Section 20. INDEMNITY - INSURANCE. To the extent It may legally do so, Carlsbad shall defend and save and hold free and harmless 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 and/or reconstruction of said sewer connections and/Or appurtenances. Pursuant thereto Carlsbad shall take out and maintain public liability insurance with an insurance carrier authorized to do business in the State of California to protect against loss from liability Imposed by law for damages on. account of bodily injury, including death resulting therefrom suffered or alleged to be suffered by any person or persons whatsoever result- ing directly or indirectly from any act or activities of Carlsbad -12- cr any person acting for Carlsbad cr under Carlsbades control or direction, and also to protect against any loss from liability imposed by law for damages to any directly or indirectly by or from or any person acting for Carlsbad direction. Such public liability shall be maintained in full force term of this lease in the amounts property of any person caused acto or activities of Carlsbad or under Carlsbadls control or and property damage insurance and effect during the entire of not less than $500,000 for one person injured in one accident and not less than $1,000,000 for more than one person injured in one accident and in the amount of not less than $250,000 with respect to any property damage aforesaid. Said insurance shall be County Counsel of San Diego County. have a non -cancellation -without -ten in form satisfactory to the The Insurance policies shall (10)-day-notioe-to-Buena clause and shall provide that copies of all cancellation notices shall be sent to Buena. If Carlsbad does not keep such insurance in full force and effect, Buena may take out the necessary in- surance and pay the premium, and such amounts so paid by Buena shall become a charge against Carlsbad. Section 21. TIME OF ESSENCE. Time is of the essence of this agreement. Section 22. SEVERABILITY. If any section, subsection, sen- tence, clause, phrase or word of this agreement, or the applica- tion 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 -13- circumstance shall not be affected thereby, Each party hereby declares that it would have entered into this agreement and each section, subsection, sentence, clause, phrase and work thereof ir- respective 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 Section 23. USE OF ENCINA OUTFALL BY OTHERS. Nothing in this agreement shall prevent Buena from leasing or permitting the use of excess capacity in the Encina Outfall by any other person or public agency upon such terms and conditions as Buena may spec- ify provided that Buena shall not impair the rights of Carlsbad under the terms of this agreement. Section 24. The provisions of the Basic Agreement and all supplements and amendments thereto shall also apply to this agree- ment between Carlsbad and Buena insofar as applicable and not in- consistent with the provisions of this agreement. Section 25. 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 reso- lution duly passed and adopted by its respective governing body caused this agreement to be executed the date first above written. LF:ECGzCL BUENA SANITATION DISTRICT Chairman, CITY OF CARLSBAD o rectors 5 D DFEPARTMK1-4,NT OF SPECIAL DISTRICT SERVICES COUNTY OF SAN DIEGO 5555 OVERLAND AVENUE, BLDG. 2 SAN DIEGO, CALIFORNIA 92123 TELEPHONE 278-9200 WARREN A. BARNEY, DIRECTOR City of Carlsbad 2960 Pio Pico Carlsbad, California 92008 Gentlemen: June 29, 1966 AGREEMENT BETWEEN THE BUENA SANITATION DISTKICT AND CITY OF CARLSBAD FOR THE LEASE Y CARLSB D OF CAPACITY IN THE ENCINA OUTFALL OF THE BUENA SANITATION DISTRICT Enclosed is a fully executed copy of the subject agreement for your files. Very truly yours, WARREN A. BARNEY, D rector Department of Speci 1 District Services Sm Enclosure COUNTY OF SAN DIEGO 1 ' CONTRACT Na, 3405-2103-R Reference above number In each eommunkaUon regarding this centred. AGREEMENT BETWEEN THE BUENA SANITATION DISTRICT AND CITY OF CARLSBAD FOR THE LEASE BY CARLSBAD OF CAPACITY IN THE ENCINA OUTFALL OF THE BUENA SANITATION DISTRICT This agreement, made and entered into this o20 - day of , 2 by and between BUENA SANITA ON DISTRICT, a county sanitation district, formed and existing under the County Sanitation District Act (Section 4700, et seq., Health and Safety Code) hereinafter sometimes referred to as "Buena" and the City of Carlsbad, a municipal corporation sometimes hereinafter referred to a s "Carlsbad". W ITNESSET H: STATEMENT OF PURPOSE 1, The City of Carlsbad and the Vista Sanitation District have entered into an agreement for the construction and owner- ship of a Joint Sewer System including a treatment plant and ocean outfall) said agreement being entitled "Basic Agreement Between Vista Sanitation District and the City of Carlsbad for the Acquisition and Construction of a Joint Sewer System", dated July 13, 1961, which bears County of San Diego Contract No, 1858-2129E, This agreement has been amended and supple- mented by several agreements including the agreement entitled "Second Supplement to Basic Agreement Between Vista Sanitation District and the City of Carlsbad for the Acquisition and Construction of the Joint Sewer System", dated January 6, 1964, by which Buena became a party to said Basic Agreement, said Basic Agreement as so amended and supplemented being herein- after sometimes referred to as "Basic Agreement" 2. Pursuant to Section 6 of the S :cond Supplement to the "Basic Agreement", Buena agreed to sell to Carlsbad capacity in the Buena Sewer designed to serve the population In "Area A" and "Area B" as delineated on Exhibit E attached to said agreement. The portion of said Buena Sewer, desig- nated Encina Outfali Sewer on said '' chibit E, is designed to have a capacity to serve Area A and Area B in addition to a population of 39,000 persons in :.he Buena Service Area. 3. In accordance with the terms and provisions of said Section 6, Carlsbad desires to Leese capacity in said Encina Outfall Sewer (hereinafter referred to as Encina Out.f all) and Buena desires to lease such capac Aty to Carlsbad as hereinafter set forth. NOW THEREFORE, the parties hereto agree as follows: Section 1. EFFECTIVE DATE. This agreement shall take effect JUN 2 0 1966 Section 2, LEASE OF CAPACITY. Buena agrees to lease to Carlsbad the following i.isteC percentages of capacity in the Encina outfall 2 -- Station to Station* 0-+-00 20 4 81,43 33 4 36,43 42 + 28.18 67 4. 42.43 87 4 57.43 190 + 93,29 204408.65 20 -+- 81,43 33 -+- 36.43 42 4 28.1.8 67 42,43 87 -� 57.43 190 + 93.29 204 o8,65 209 -s- 56.94 Carlsbad Hofca.- Capacity Amount $ 48,625 3.0 31.78 114,280 2,2 28,21 10,070 2,2 28,21 20,900 1,5 21.13 11,735 .3 18,84 )+5s950 1.2 17,65 5,630 1,2 17,65 2,410 MGD* Total $159,600 * Stations as shown on hereinafter mentioned plans. * Million gallons per day, Said Encina outfall is the outfall sewer line shown on those certain plans entitled "Plans .for the Project -Sheets 1 throumh 7 Inclusive" on file in the office of the Department of Special District Services of the County of Snn Diego, 5555 Overland Avenue, Building 2, San Diego, California, a copy of which has been furnished to Carlsbad. Section 3. TERMS OF LEASE 1. Buena shall lease to Carlsbad for a period com- mencing on or before July 1, 1966, 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 payable as follows: 30 equal annual payments of $5,320 each, beginning July 1, 1966, 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 are granted and shall be exercisable provided lessee is not in -3- default at the time lessee exercises the option to purchase, at least one month prior to the expiration of each year of the term of the lease. The purchase price shall be the sum of $159,600 leas the amount of rental already paid to Buena under the terms of this agreement, 20 Carlsbad°s exercise of this option to purchase shall be by one month"s prior notice thereof, in writing, sent by registered or certified mail to Buena, and shall be effected by delivering into Buena's hands, Carlsbad's check In the full amount of said purchase price together with any rental payment due at the time of the exercise of said option, at which time title to said capacity shall vest in Carlsbad, it being understood that until such time as Carlsbad exercises its option title to the capacity which is the subject of this agreement will remain in Buena 3. Carlsbad shall not lose its last right to exercise said option although Carlsbad may not have given timely notice of its exercise, unless Carlsbad shall fail to exercise the same within ten (10) days after receipt of written notice from Buena to do so and to make prompt payment thereafter. Section 4, CAPACITY - AVERAGE FLOW. The average flow of sewage from Carlsbad discharged through any portion of the Encina Outfall shall not exceed the amounts of capacity stated In terms of MGD for such portion as shown in Section 2 as the capacity being purchased by Carlsbad, "Average flow" shall mean the discharge of sewage expressed at a rate of flow in million gallons a day (MGD) and shall be computed by dividing the total gallons discharged during the fiscal year (July 1 to June 30) by the number of days within said year. Section 5. CONNECTIONS. Carlsbad, at its sole expense, shall construct, install, maintain, repair, replace and/or reconstruct any necessary transmission facilities from the Carlsbad Service Area to the Encina Outfall and the connec- tions of such transmission facilities to the Encina Outfall together with any necessary appurtenances. Section 6. ENGINEER°S APPROVAL, The location, instal- lation, 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 Buenas engineer. Section 7. AREAS TO BE SERVED, The capacity in the Encina Outfall to be acquired by Carlsbad under the terms of this agreement shall be used by Carlsbad only to serve that area which is within the Carlsbad Service Area, as designated on Exhibit E of the Second Supplement to the Basic Agreement, provided, however, that territory outside such areas as above described may be served by Carlsbad on a temporary basis with the written consent of Buenas engineer, which written consent shall specify such territory and the duration of such temporary service. Section 8. LIMITATIONS ON Txrt: AND CONDITION OF SEWAGE. A. All sewage discharged by Carlsbad into Encina Outfall shall conform to the ordinances, resolutions, rules and regulations which Buena must adopt in accordance with Section 27 of the Basic Agreement concerning the condition of sewage and waste permitted to be discharged into the sewers under its control in order to prevent -5- the discharge into such sewers any sewage or waste which would be detrimental to the Joint System or any part thereof. B. Carlsbad shall not allow excessive infiltration or any surface or storm waters to be discharged into any sewer system or facilities served by the Encina Outfall. Carlsbad shall not allow cooling waters or other unpolluted :industrial waste to be discharged into such sewer system or £aellities without the written consent of Buena thereto. Section 9., METERING. When it becomes necessary to meter the flow of sewage and upon demand by Buena after a show- ing of such necessity; or in the event that Carlsbad _,s dis- satisfied with the cost of maintenance and operation of the Encina Outfall being charged to Carlsbad; and In any event, the prior stated conditions notwithstanding, at a time prior no the expiration of five years from the date of this agreement, Carlsbad, shall, at its sole expense, install a meter at a lo- cation within the Encina Treatment Plant site specified by luena and such meter shall be of a type and installed in a manner approved by Buena's engineer so as to measure the entire floe of sewage from the Encina Outfall Into the Encina Treatment Planto Buena shall, at no expense to Carlsbad, install or cause to be installed such meters as may be necessary to meter the sewage discharged into the Encina Outfall by Buena or any other party authorized by Buena to discharge sewage into said Encina Outfall. The meters shall be operated and maintained ty Buena in good working condition for the duration of this agree- ment, and Buena shall render reports of the metered flow to Carlsbad quarterly. The cost of operating said meters shall be considered a part of the coy=t, of maintenance and operation of the Encina Outfall. -6- Section 10, INFILTRATION„ It Is understood and agreed that there will be inflo4 of water into the Encina Outfall be- cause of leakage between the Carlsbad connection and the Encina Treatment Plant. Buena shall estimate the total waters that infiltrate the Encina Outfall between said connection and treat- ment 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 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 sewage of such user for all purposes. Section 11, MAINTENANCE CHARGE. (a) During such period as Carlsbad is authorized to use a portion of 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 be in proportion to the average flow of sewage discharged into the Encina Outfall through Carlsbad's con- nections to said outfall as compared to the total average flow of sewage discharged into said Encina Outfall. (b) 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. (c) Buena shall keep accurate records of its cost of -7- maintaining and operating the Enciria Outfall and such records shall be open to inspection by Carlsbad at all reasonable times. Section 12. CHARGE AGAINST CAPACITY RIGHTS IN ENCINA TREAT- MENT 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 Treat- ment Plant, and all infiltration allocable to Carlsbad as deter- mined by Section 10 of this agreement,, shall be charged against Carlsbad®s capacity rights in and to the Encina Treatment Plant and Ocean Outfall as such rights have been determined by that certain agreement between the City of Carlsbad and Vista Sanita- tion District, entitled "Basic Agreement Between Vista Sanitation District and the City of Carlsbad for the Acquisition and Con- struction of a Joint Sewer System" dated July 13, 1961, together with all amendments and supplements thereto, including the Second Supplement to Basic Agreement Between Vista Sanitation District and the City of Carlsbad for the Acquisition and Construction of The Joint Sewer System, dated January 6, 1964, and shall be charged to Carlsbad for the purpose of computing the proportionate shares of the parties to the Basic Agreement in the cost of maintaining and operating the Encina Treatment Plant and Ocean Outfall. Section 13, TRANSFER OF TERRITORY, If, because of annexa- tion, transfers, consolidation or other cause, any territory with- in the Carlsbad Service Area and served by the Encina Outfall is transferred to another jurisdiction, Carlsbad shall remain re- sponsible and be charged for the sewage and infiltrated waters from such territory discharged into the Encina Outfall as provided in -8- this agreement until the parties hereto execute an appropriate amendment to this agreement transferring such responsibility and the obligation to make payments pursuant to this agreement to such other jurisdictions Section 14. REPAIRS. The Encina {pitfall Sewer shall be maintained by Buena in good repair and working order in accordance with sound engineering practices It shall be the duty or Buena to make repairs on said Encina Outfall required to keep such out - fall sewer in good operating condition„ Except as provided in Section 15, the cost of all repairs shall be part of the mainte- nance costs of the Encino. Outfall. Section 15. MAJOR REPAIRS AND RECONSTRUCTION AND REPLACE- MENT. Notwithstanding the provisions of Section 14 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 repairs or replacement or re- construction in the same proportion as the parties own or lease capacity in the Encina Outfall, or portion thereof repaired, re- placed or reconstructed. Section 16. INTERRu}-.CION OF SERVICE. In the event of an interruption of service to Carlsbad by the Encina Outfall sewer, as a result of disaster, operation of State or Federal law, dis- continuance or interruption of service to Buena by the Encina Treatment Plant or Ocean Outfall, or any other cause beyond the control of Buena, Buena shall bear no liability and shall be held free and harmless by Carlsbad from .any claims and liabilities for any in jury to or damage to any person o:' persons or property or -9- 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 Buena as a result of such Interruption of service. Section 17. ARBT1EATION Except as otherwise provided here- in, all controversies arising out of the interpretation or applica- tion of this agreement 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 sub- mitted to a board of three (3) arbitrators which shall be appointed, one by Buena, 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 arbi- tration, (2) the controversy to be arbitrated, (3) that it has appointed its nominees, and (4) that It requests the other party to appoint 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) days before said hearing, shall give each party written notice thereof. The arbitration shall be restricted to matters rel- ative 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 concluzion of the hearing or hearings the arbitration board shall reduce their findings of fact, conclusions of law and the award to writing, and 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 majority finding shall govern if the arbitratorsdetermination is not unan- imous. 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 proceed- ings shall be shared equally. Any controversy which can be determined by an engineers find- ings 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 shall be the sole arbitrator. Such engineer shall be a member of the American Society of Civil Engineers and shall be disinterested as hereinbefore in this section required of arbitrators on an arbitration board. He shall proceed in the same manner and shall make findings, conclusions and an award in the manner provided herein for an arbitration board. Section 18. NOTICE. Notices required or permitted under this agreement shall be sufficiently given if in writing and if either served personally 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 19. LIABILITY. Nothing herein contained shall operate to relieve Carlsbad of any liability for damages to persons or -11- property arising from or out of the inatallation, construction, operation, maintenance, repair, replacement and/or reconetruction of the aforesaid sewer connections and appurtenances or from any • action or inaction of Carlsbad or of its officers, agents or employees in connection therewith. And except as provided in Section 16 nothing herein contained shall operate to relieve Buena of any liability for damages to persons or property arising from or out of the installation, con- struction, operation, maintenance, repair, replacement and/or reconstruction of the aforesaid sewer connections and appurte- nances or from any action or inaction of Buena or of its officers, agents or employees in conneotion therewith Section 20. INDEMNITY -. INSURANCE. To the extent it may legally do so, Carlsbad shall defend and save and hold free and harmless 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 and/or reconstruction of said sewer connections and/Or appurtenances. Pursuant thereto Carlsbad shall take out and maintain public liability insurance with an insurance carrier authorized to do business in the State of California to protect against loss from liability imposed by law for damages on account of bodily injury, including death resulting therefrom suffered or alleged to be suffered by any person or persons whatsoever result- ing directly or indirectly from any act or activities of Carlsbad -12- or any person acting for Carlsbad or under direction, and also to protect against any imposed by law for damages to any directly or indirectly by or from or any person acting for Carlsbad direction, Such public J iab:7.lity shall be maintained in full force term of this lease in the amounts Carl: ba.d e s control or loss from liability property of any person caused acts or activities of Carlsbad or under Carlsbad ° s control or and property damage insurance and effect during the entire of not less than $500,000 for one person injured in one accident and not less than $1,000,000 for more than one person Injured in one accident and in the amount of not less than $250,000 with respect to any property damage aforesaid. Said insurance shall be in form satisfactory to the County Counsel of San Diego County. The insurance policies shall have a non -cancellation -without -ten (10)-day-notice-to-Buena clause and shall provide that copies of all cancellation notices shall be sent to Buena. If Carlsbad does not keep such insurance in full force and effect, Buena may take out the necessary in- surance and pay the premium, and such amounts so paid by Buena shall become a charge against Carlsbad. Section 21. TIME OF ESSENCE. Time is of the essence of this agreement. Section 22, SEVERABILITY, If any sections subsection, sen- tence, clause, phrase or word of this agreement, or the applica- tion 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 -13- circumstance shall not be affected thereby Each party hereby declares that It would have entered into this agreement and each section, subsection, sentence, clause, phrase and work thereof ir- respective 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. Section 23. USE OF ENCINA OUTFALL BY OTHERS Nothing in this agreement shall prevent Buena from leasing or permitting the use of excess capacity in the Ercina Outfall by any other person or public agency upon such terms and conditions as Buena may spec- ify provided that Buena shall not impair the rights of Carlsbad under the terms of this agreement. Section 24. The provisions of the Basic Agreement and all supplements and amendments thereto shall also apply to this agree- ment between Carlsbad and Buena insofar as applicable and not in- consistent with the provisions of this agreement. Section 25. 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 reso- lution duly passed and adopted by its respective governing body caused this agreement to be executed the date first above written. BUENA SANITATION DISTRICT, By "51. �_��""'Tt'Y d of Directors CITY OF CARLS By LF:ECG*CI APPROVED BY THE DISTRICT BOARD OF DIRECTORS JUN2 G 196G #ra CLERK OF TMF r,' »• 1