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HomeMy WebLinkAboutBuena Sanitation District; 1987-12-15;KATHRYN A. NELSON CLERK (819) 631-6600 CLERK OF THE BOARD OF SUPERVISORS ROOM 402. 1600 PACIFIC HIGHWAY, SAN DIEGO, CALIFORNIA 92101-2471 April 8, 1988 Ms. Karen R. Kundtz Deputy City Clerk City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 Subject: Revised Agreement with Buena Sanitation District for Lease of Capacity in the Encina Outfall Re: 12-15-87 (Buena 3) Dear Ms. Kundtz: Enclosed is one fully executed copy of AGREEMENT BETWEEN THE BUENA SANITATION DISTRICT AND CITY OF CARLSBAO FOR THE LEASE OF ADDITIONAL CAPACITY IN THE ENCINA OUTFALL, dated December 15, 1987. Yours truly, KATHRYN A. NELSON Clerk of the Board of Supervisors (-I-“-..\ Deputy cc: Department of Public Works (0384) Attention: Mark Weston AGREEMENT BETWEEN THE BUENA SANITATION DISTRICT AND CITY OF CARLSBAD FOR THE LEASE OF ADDITIONAL CAPACITY IN THE ENCINA OUTFALL This Agreement, made and entered into this day of December 15th 1987, by and between BUENA SANITATION DISTRICT, a county sanitation district, formed and existing under the County Sanitation District Act (Section 4700, et seq., Health and Safety Code) hereinafter referred to as "Buena" and the CITY OF CARLSBAD, a municipal corporation hereinafter referred to as "Carlsbad." WITNESSETH: 1. Carlsbad and Buena Sanitation District entered into an Agreement for the lease of capacity in a land sewage outfall on June 20, 1966. 2. The City of Carlsbad and Buena Sanitation District rescinded the 1966 Agreement and replaced it with a new agreement in 1981. 3. Now the City of Carlsbad desires to temporarily lease additional capacity in the land sewage outfall from Buena. NOW THEREFORE, the parties hereto agree as follows: Section 1. EFFECTIVE DATE: This agreement shall take effect July 1, 1988. Section 2. LEASE OF CAPACITY: Buena agrees to lease to Carlsbad on a temporary basis .8 peak mgd until a replacement sewer is constructed in accordance with Section 3 of this Agreement. Section 3. NEW CONSTRUCTION: When peak flows in the interceptor reach 75% of the depth of the pipe in any reach of the Encina Outfall, as determined by the Buena Sanitation District, Carlsbad shall construct a replacement outfall to eliminate the need for this lease. When the construction is completed this lease shall terminate. when flows reach 75% of the depth of fiow of the pipe aii payments required in Section 4 of this agreement shall double and they will double again each year until the flows are removed from the line. If other unanticipated capacity problems arise relating to this lease, Carlsbad, at Buena's request, will be required to pay their share to correct the problem. Section 4. TERMS OF LEASE: Carlsbad shall pay to Buena $7,500 per year for the term of this lease. If permanent capacity should become available for acquisition Carlsbad shall retain the option to acquire said capacity and apply previous lease payments towards the acquisition price. Section 5. CONNECTIONS: Carlsbad, at its sole expense, shall be responsible for the construction, installation, maintenance, repair, replacement or reconstruction of any necessary transmission facilities from the Carlsbad Service Area to the Encina Outfall and for the connection of such transmission facilities together with any necessary appurtences to the Encinas Outfall. 1 Section 6. ENGINEER'S APPROVAL: The location, installation, construction, repair (except emergency repairs) replacement and/or reconstruction of the connections to the Encinas Outfall shall be according to plans and specifications first approved by Buena's engineer. Section 7. LIMITATIONS ON TYPE AND CONDITION OF SEWAGE: A 1 1 sewage discharged by Carlsbad into Encina Outfall shall conform to the ordinances, resolution, rules and regulations which Buena must adopt in accordance with Agreements of the Encina Joint Powers concerning the condition of sewage and waste permitted to be discharged to the Joint System or any part thereof. Section 8. METERING: Carlsbad shall, upon request of Buena, provide a device to meter the flow of sewage in the Encina Outfall at a point below any lateral connection, but above the Encina Sewage Treatment Facility. The meter will be installed and operated solely at Carlsbad's expense. Section 9. INFILTRATION: It is understood and agreed that there will be inflow of water into the Encina Outfall because 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 treatment plant (sometimes referred to herein as "infiltration") and apportion the same among all of such users of the Encina Outfall in the proportion that the amount of sewage discharged into the Encina Outfall by each such user bears to the total amount of sewage discharged into the 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 IO. MAINTENANCE CHARGE: 1. 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 connections to said outfall as compared to the total average flow of sewage discharged into said Encina Outfall. 2. Buena shall bill Carlsbad for its share of the cost from time to time, but at least annually, and Carlsbad shall pay its share of the cost to Buena within thirty (30) days after being so billed. 3. Buena shall keep accurate records of this cost of maintaining and operating the Encina Outfall and such records shall be open to inspection by Carlsbad at all reasonable times. Section 11. CHARGE AGAINST CAPACITY RIGHTS IN ENCINA TREATMENT PLANT AND OCEAN OUTFALL: All sewage discharged into the Encina Outfall through Carlsbad's connection, under the terms of this Agreement and thereafter discharged into the Encina Treatment Plant, and all infiltration allocable to Carlsbad as determined by Section 9 of this Agreement, shall be charged against Carlsbad's capacity rights in and to the Encina Treatment Plant and Ocean Outfall. Section 12. 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 outfall sewer in good operating condition. Except as provided in Section 13, the cost of all repairs shall be part of the maintenance cost of the Encina Outfall. 2 Section 13. INTERRUPTION OF SERVICE: In the event of an interruption of services to Carlsbad in the Encina Outfall, as a result of disaster, operation of State or Federal law, discontinuance or 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 harmless by Carlsbad from any claims and liabilities for any injury to or damage to any person or persons or property or for the death of any person or persons arising from or out of such interruption of service or for any other damages or costs incurred by Buena as a result of such interruption of service. Section 14. ARBITRATION: Except as otherwise provided herein, all controversies raising out of the interpretation or application 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 statutory provisions of the State of California then in force. The controversy shall be submitted to a board of three (3) arbitrators which shall be appointed, one by 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 arbitration, (2) the controversy to be arbitrated, (3) that it has appointed its nominee, and (4) that it request 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 relative to that stated in the notice requesting arbitration. The arbitration board shall have no authority to add to or subtract from this agreement. Each party shall be given an opportunity to be heard and to present evidence. Upon conclusion of the hearing or hearings,the arbitration board shall reduce 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 arbitrators' determination is not unanimous. Each party shall pay its own expenses, including the expenses of the arbitrator which it nominates. The expenses of the third arbitrator and the administrative costs of the arbitration proceedings shall be shared equally. Any Controversy which can be determined by an engineer's findings and which under this section could be submitted to arbitration may, if the parties thereto agree in writing to do so, be submitted to a named engineer who 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, conclusion and an award in the manner provided herein for an arbitration board. Section 15. NOTICE: Notice 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. L ’ Section 16. LIABILITY: Nothing herein contained shall operate to relieve Carlsbad of any liability for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement or reconstruction of the aforesaid sewer connections and appurtenances or from any action or inaction of Carlsbad or its officers, agents or employees in connection therewith. And except as provided in Section 17 nothing herein contained shall operate to relieve Buena of any liability for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement and/or reconstruction of the aforesaid sewer connections and appurtenances or from any action or inaction of Buena or of its officers, agents or employees in connection therewith. Section 17. INDEMNITY: To the extent it may legally do so, Carlsbad shall defend and save and hold free and 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 or reconstruction of said sewer connections or appurtenances. Section 18. TIME OF ESSENCE: Time is of the essence of this agreement. Section 19. SEVERABILITY: If any section, subsection, sentence, clause, phrase or word of this agreement, or the application thereof, to any party, or to any other person or circumstance is for any reason held invalid, it shall be deemed severable and the validity or the remainder of the agreement or the application of such provision to the other parties or to any other persons or circumstances shall not be affected thereby. Each party hereby declared that it would have entered into this agreement and each section, subsection, sentence, clauses, phrase and work thereof irrespective of the fact that one or more sections, subsections, sentences, clauses, phrases or words, or the application thereof to any party or any other person or circumstance be held invalid. Section 20. This agreement shall be binding upon the parties hereto and the successors and assigns of each of them. IN WITNESS WHEREOF, each party hereto has pursuant to resolution duly passed and adopted by its respective governing body caused this agreement to be executed the date first above written. Appffo&~ fjy 'fi$k &TRJCl BOARD OF DiaECTO~ BUENA SANITATION DISTRICT /~-,s-mq ” BY *& /q,u* &&H* Clerk of the Board of Directors ,>FRK OF TG 0~Xii3 EO4FtO OF MfECTO= BY - 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 Office of the City Clerk TELEPHONE (619) 434-2808 March 17, 1988 Clerk of the Board of Supervisors County of San Diego 1600 Pacific Highway San Diego, CA 92101 Re: Revised Agreement With Buena Sanitation District for Lease of Capacity in the Encina Outfall The City Council of the City of Carlsbad, in August, 1987, approved an agreement between the City and the Buena Sanitation District for lease of capacity in the Encina Outfall. The Buena Sanitation District Board, however, considered the matter at their meeting of December 15, 1987, and requested that changes be made in the agreement prior to their approval. Subsequent to that request, the revised agreement was returned to the Carlsbad City Council at its meeting of January 12, 1988 for consideration. The Council approved the agreement at that meeting by the adoption of Resolution No. 88-10. Per instructions from our Engineering Department, enclosed are three (3) original revised agreements which have been signed by Mayor Lewis on behalf of the City of Carlsbad. It is our understanding that upon execution of the documents by a represen- tative of your Board, you will return one fully executed agreement to the City Clerk's Office at 1200 Elm Avenue, Carlsbad, CA 92008. Thank you for your assistance in this matter, and if you have any questions, please don't hesitate to contact us. $iiiii%G Deputy City Clerk Encs. - AGREEMENT BETWEEN THE BUENA SANITATION DISTRICT AND CITY OF CARLSBAD FOR THE LEASE OF ADDITIONAL CAPACITY IN THE ENCINA OUTFALL This Agreement, made and entered into this day of 1988, by and between BUENA SANITATION DISTRICT, a county sanitation district, formed and existing under the County Sanitation District Act (Section 4700, et seq., Health and Safety Code) hereinafter referred to as "Buena" and the CITY OF CARLSBAD, a municipal corporation hereinafter referred to as "Carlsbad." WITNESSETH: 1. Carlsbad and Buena Sanitation District entered into an Agreement for the lease of capacity in a land sewage outfall on June 20, 1966. 2. The City of Carlsbad and Buena Sanitation District rescinded the 1966 Agreement and replaced it with a new agreement in 1981. 3. Now the City of Carlsbad desires to temporarily lease additional capacity in the land sewage outfall from Buena. NOW THEREFORE, the parties hereto agree as follows: Section 1. EFFECTIVE DATE: This agreement shall take effect July 1, 1988. Section 2. LEASE OF CAPACITY: Buena agrees to lease to Carlsbad on a temporary basis .8 peak mgd until a replacement sewer is constructed in accordance with Section 3 of this Agreement. Section 3. NEW CONSTRUCTION: When peak flows in the interceptor reach 75% of the depth of the pipe in any reach of the Encina Outfall, as determined by the Buena Sanitation District, Carlsbad shall construct a replacement outfall to eliminate the need for this lease. When the construction is completed this lease shall terminate. when flows reach 75% of the depth of flow of the pipe all payments required in Section 4 of this agreement shall double and they will double again each year until the flows are removed from the line. If other unanticipated capacity problems arise relating to this lease, Carlsbad, at Buena's request, will be required to pay their share to correct the problem. Section 4. TERMS OF LEASE: Carlsbad shall pay to Buena $7,500 per year for the term of this lease. If permanent capacity should become available for acquisition Carlsbad shall retain the option to acquire said capacity and apply previous lease payments towards the acquisition price. Section 5. CONNECTIONS: Carlsbad, at its sole expense, shall be responsible for the construction, installation, maintenance, repair, replacement or reconstruction of any necessary transmission facilities from the Carlsbad Service Area to the Encina Outfall and for the connection of such transmission facilities together with any necessary appurtences to the Encinas Outfall. 1 Section 6. ENGINEER'S APPROVAL: The location, installation, construction, repair (except emergency repairs) replacement and/or reconstruction of the connections to the Encinas Outfall shall be according to plans and specifications first approved by Buena's engineer. OF SEWAGE: A 1 1 sewage conform to the ordinances, in accordance with Agreements sewage and waste permitted to Section 7. LIMITATIONS ON TYPE AND CONDITION discharged by Carlsbad into Encina Outfall shall resolution, rules and regulations which Buena must adopt of the Encina Joint Powers concerning the condition of be discharged to the Joint System or any part thereof. Section 8. METERING: Carlsbad shall, upon request of Buena, provide a device to meter the flow of sewage in the Encina Outfall at a point below any lateral connection, but above the Encina Sewage Treatment Facility. The meter will be installed and operated solely at Carlsbad's expense. Section 9. INFILTRATION: It is understood and agreed that there will be inflow of water into the Encina Outfall because 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 treatment plant (sometimes referred to herein as "infiltration") and apportion the same among all of such users of the Encina Outfall in the proportion that the amount of sewage discharged into the Encina Outfall by each such user bears to the total amount of sewage discharged into the 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 10. MAINTENANCE CHARGE: 1. 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 connections to said outfall as compared to the total average flow of sewage discharged into said Encina Outfall. 2. Buena shall bill Carlsbad for its share of the cost from time to time, but at least annually, and Carlsbad shall pay its share of the cost to Buena within thirty (30) days after being so billed. 3. Buena shall keep accurate records of this cost of maintaining and operating the Encina Outfall and such records shall be open to inspection by Carlsbad at all reasonable times. Section 11. CHARGE AGAINST CAPACITY RIGHTS IN ENCINA TREATMENT PLANT AND OCEAN OUTFALL: All sewage discharged into the Encina Outfall through Carlsbad's connection, under the terms of this Agreement and thereafter discharged into the Encina Treatment Plant, and all infiltration allocable to Carlsbad as determined by Section 9 of this Agreement, shall be charged against Carlsbad's capacity rights in and to the Encina Treatment Plant and Ocean Outfall. Section 12. 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 outfall sewer in good operating condition. Except as provided in Section 13, the cost of all repairs shall be part of the maintenance cost of the Encina Outfall. 2 , Section 13. INTERRUPTION OF SERVICE: In the event 'of an interruption of services to Carlsbad in the Encina Outfall, as a result of disaster, operation of State or Federal law, discontinuance or 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 harmless by Carlsbad from any claims and liabilities for any injury to or damage to any person or persons or property or for the death of any person or persons arising from or out of such interruption of service or for any other damages or costs incurred by Buena as a result of such interruption of service. Section 14. ARBITRATION: Except as otherwise provided herein, all controversies raising out of the interpretation or application 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 statutory provisions of the State of California then in force. The controversy shall be submitted to a board of three (3) arbitrators which shall be appointed, one by 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 arbitration, (2) the controversy to be arbitrated, (3) that it has appointed its nominee, and (4) that it request 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 relative to that stated in the notice requesting arbitration. The arbitration board shall have no authority to add to or subtract from this agreement. Each party shall be given an opportunity to be heard and to present evidence. Upon conclusion of the hearing or hearings,the arbitration board shall reduce 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 arbitrators' determination is not unanimous. Each party shall pay its own expenses, including the expenses of the arbitrator which it nominates. The expenses of the third arbitrator and the administrative costs of the arbitration proceedings shall be shared equally. Any Controversy which can be determined by an engineer's findings and which under this section could be submitted to arbitration may, if the parties thereto agree 1 do so, be submitted to a named engineer who shall be the sole in writing ta arbitrator. engineer shall be a member of the American Society of Civil Engineers isinterested as hereinbefore in this section required of arbitrators on board. He shall proceed in the same manner and shall make findings, conclusion and an award in the manner provided herein for an arbitration board. Such and shall be d an arbitration Section 15. NOTICE: Notice 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. 3 Section 16. LIABILITY: Nothing herein contained shall operate to relieve Carlsbad of any liability for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement or reconstruction of the aforesaid sewer connections and appurtenances or from any action or inaction of Carlsbad or its officers, agents or employees in connection therewith. And except as provided in Section 17 nothing herein contained shall operate to relieve Buena of any liability for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement and/or reconstruction of ,the aforesaid sewer connections and appurtenances or from any action or inaction of Buena or of its officers, agents or employees in connection therewith. Section 17. INDEMNITY: To the extent it may legally do so, Carlsbad shall defend and save and hold free and 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 or reconstruction of said sewer connections or appurtenances. Section 18. TIME OF ESSENCE: Time is of the essence of this agreement. Section 19. SEVERABILITY: If any section, subsection, sentence, clause, phrase or word of this agreement, or the application thereof, to any party, or to any other person or circumstance is for any reason held invalid, it shall be deemed severable and the validity or the remainder of the agreement or the application of such provision to the other parties or to any other persons or circumstances shall not be affected thereby. Each party hereby declared that it would have entered into this agreement and each section, subsection, sentence, clauses, phrase and work thereof irrespective of the fact that one or more sections, subsections, sentences, clauses, phrases or words, or the application thereof to any party or any other person or circumstance be held invalid. Section 20. This agreement shall be binding upon the parties hereto and the successors and assigns of each of them. IN WITNESS WHEREOF, each party hereto has pursuant to resolution duly passed and adopted by its respective governing body caused this agreement to be executed the date first above written. BUENA SANITATION DISTRICT To From ML JTE IT - DON’T SAY I . : Date v 19 A K--K 0 Reply Wanted -GLhAL?~ - q No Reply Necessary AIGNER FORM NO. 55-032 PRlNTED IN us* V. IITE IT - DON’T SAY b _ ! Date 3110 19 88 To File 0 Reply Wanted From Karen q lNo Reply Necessary According to Frank Boensch, (Eng.) this date, the Agmt for Lease of Additional Capacity in Encina Outfall which was approved by Council on 814187 and sent to the County for approval, was not approved by the County. The County wanted changes in the agmt, which were subsequently approved ",;p;;:a~;u~si~e;; #dw /<, /y/f. However, at the time of Council ~&*~~~/~ ot provided with original agmts to process. Frank B. has now provided us with three (3) original agmts to process for signature and send to the County for approval. K. AIGNER FORM NO. ?6032 PRINTED IN USA 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 TELEPHONE: (819) 434-2808 ditp of QLarlSbab INiORMATlON SYSTEMS DEPARTMENT August 10, 1987 Department of Public Works Mark Weston, Director Liquid Waste Division 5454 Ruffin Road, Second Floor San Diego, CA 92121 RE: AGREEMENT FOR LEASE OF ADDITIONAL CAPACITY IN ENCINA OUTFALL Enclosed are three (3) original agreements for submittal to your Board of Directors. The Carlsbad City Council approved this agreement at their regular meeting on August 4, 1987 and our Mayor has signed all three original documents After your Board has approved and signed the agreements we would greatly appreciate it if you would return one signed original to us for our files. I have also enclosed a copy of a letter from Mr. A. H. Krier for your information. I understand that you have only recently taken on some of his work and I thought this copy might help clear up any confusion as a result of his departure from your department. If you have any questions regarding this matter please contact this office. ague . City Clerk's Office Enclosure: 3 Original Agreements AGREEMENT BETWEEN THE BUENA SANITATION DISTRICT AND CITY OF CARLSBAD FOR THE LEASE OF ADDITIONAL CAPACITY IN THE ENCINA OUTFALL This Agreement, made and entered into this day of 1987, by and between BUENA SANITATION DISTRICT, a county sakitation district, formed and existing under the County Sanitation District Act (Section 4700, et seq., Health and Safety Code) hereinafter referred to as "Buena" and the CITY OF CARLSBAD, .a municipal corporation hereinafter referred to as "Carlsbad." WITNESSETH: 1. Carlsbad and Buena Sanitation District entered into an Agreement for the lease of capacity in a land sewage outfall on June 20, 1966. 2. The City of Carlsbad and Buena Sanitation District rescinded the 1966 Agreement and replaced it with a new agreement in 1981. 3. Now the City of. Carlsbad desires to temporarily lease additional capacity in the land sewage outfall from Buena. 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 on a temporary basis .8 peak mgd until a replacement sewer is constructed in accordance with Section 3 of this Agreement. Section 3. NEW CONSTRUCTION: When peak flows in the interceptor reach 75X of the depth of the pipe in. any reach of the Encina Outfall, as determined by the Buena Sanitation District, Carlsbad shall construct a replacement outfall to eliminate the need for this lease. When the construction is completed this lease shall terminate. When flows reach 75% of the depth of flow of the pipe all payments required in Section 4 of this agreement shall double and they will double again each year to a maximum of $30,000 per year until the flows are removed from the line. If other unanticipated capacity problems arise relating to this lease, Carlsbad, at Buena's request, will be required to pay their share to correct the problem. Section 4. TERMS OF LEASE: ---- Carlsbad shall pay to Buena $7,500 per year for the term of this lease. If permanent capacity should become available for acquisition Carlsbad shall retain the option to acquire said capacity and apply previous lease payments towards the acquisition price. SectionA. CONNECTIONS: Carlsbad, at its sole expense, shall be responsible for the construction, installation, maintenance, repair, replacement or reconstruction of any necessary transmission facilities from the Carlsbad Service Area to the Encina Outfall and for the connection of such transmission facilities together with any necessary appurtenances to the Encinas Outfall. Section 6. ENGINEER'S APPROVAL: The location, installation, construction, repair (except emergency repairs) replacement and/or reconstruction of the connections to the Encinas Outfall shall be according to plans and specifications first approved by Buena's engineer. Section 7. LIMITATIONS ON TYPE AND CONDITION OF SEWAGE: All sewage discharged by Carlsbad into Encina Outfall shall conform to the ordinances, resolutions, rules and regulations which Buena must adopt in accordance with Agreements of the Encina Joint Powers concerning the condition of sewage and waste permitted to be discharged to the Joint System or any part thereof. Section 8. METERING: Carlsbad shall, upon request of Buena, provide a device to meter the flow of sewage in the Encina Outfall at a point below any lateral connection, but above the Encina Sewage Treatment Facility. The meter will be installed and operated solely at Carlsbad's expense. Section 9. INFILTRATION: It is understood and that there will be inflow agreed of water into the Encina Outfall because 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 treatment plant (sometimes referred to herein as "infiltration") and apportion the same among all of such users of the Encina Outfall in the proportion that the amount of sewage discharged into the Encina Outfall by each such user bears to the total amount of sewage discharged into the 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. -2- Section 10. MAINTENANCE CHARGE: 1. 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 connections to said outfall as compared to the total average flow of sewage discharged into said Encina Outfall. 2. Buena shall bill Carlsbad for its share of the cost from time to time, but at least annually, and Carlsbad shall pay its share of the cost to Buena within thirty (30) days after being so billed. 3. Buena shall keep accurate records of its cost of maintaining and operating the Encina Outfall and such records shall be open to inspection by Carlsbad at all reasonable times. Section 11. CHARGE AGAINST CAPACITY RIGHTS IN ENCINA TREATMENT PLANT AND OCEAN OUTFALL: All sewage discharged into the Encina Outfall through Carlsbad's connection, under the terms of this Agreement and thereafter discharged into the Encina Treatment Plant, and all infiltration allocable to Carlsbad as determined by Section 9 of this Agreement, shall be charged against Carlsbad's capacity rights in and to the Encina Treatment Plant and Ocean Outfall. Section 12. REPAIRS: The Encina Outfall Sewer shall be maintainedby 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 outfall sewer in good operating condition. Except as provided in Section 13, the cost of all repairs shall be part of the maintenance costs of the Encina Outfall. Section 13. INTERRUPTION OF SERVICE: In the event of - an interruption of services to Carlsbad in the Encina Outfall, as a result of disaster, operation of State or Federal law, discontinuance or 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 harmless by Carlsbad from any claims and liabilties for any injury to or damage to any person or persons or property or for the death of any person or persons arising from or out of such interruption of service or for any other damages or costs incurred by Buena as a result of such interruption of service. -3- Section 14. ARBITRATION: Except as otherwise provided herein, all controversies arising out of the interpretation or application 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 submitted 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 arbitration, (2) the controversy to be arbitrated, (3) that it has appointed its nominee, 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 relative to that stated in the notice requesting arbitration. The arbitration board shall have no authority to add to or ' subtract from this agreement. Each party shall be given an opportunity to be heard and to present evidence. Upon conclusion of the hearing or hearings, the arbitration board shall reduce their findings of fact, conclusions of law and the award to writing, and sh-all 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 arbitrators' determination is not unanimous. Each party shall pay its own expenses, including,the expenses of the arbitrator which it nominates. The expenses of the third arbitrator and the administrative costs of the arbitration proceedings shall be shared equally. Any Controversy which can be determined by an engineer's findings and which under this section could be submitted to arbitration may, if the parties thereto agree in writing to do so, be submitted to a named engineer who 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. -4- Section 15. 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 16. LIABILITY: Nothing herein contained shall operate to relieve Carlsbad of any liability for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement or reconstruction of the aforesaid sewer connections and appurtenances or from any action of inaction of Carlsbad or its officers, agents or employees in connection therewith. And except as provided in Section 18 nothing herein contained shall operate to relieve Buena of any liability for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement and/or reconstruction of the aforesaid sewer connections and appurtenances or from any action or inaction of Buena or of its officers, agents or employees in connection therewith. section 17. INDEMNITY: To the extent it may legally do so, Carlsbad shall defend and save and hold free and 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 or reconstruction of said sewer connections or appurtenances. Section 18. TIME OF ESSENCE: Time is of the essence of this agreement. Section 19. SEVERABILITY: If any section, subsection, sentence, clause, phrase or word of this agreement, or the application thereof, to any party, or to any other person or circumstance is for any reason held invalid, it shall be deemed severable and the validity or the remainder of the agreement or the application of such provision to the other parties or to any other persons or circumstances shall not be affected thereby. Each party hereby declared that it would have entered into this agreement and each section, subsection, sentence, clause, phrase and work thereof irrespective of the fact that one or more sections, subsections, sentences, clauses, phrases or words, or the application thereof to any party or any other person or circumstance be held invalid. -5- Section 20. This agreement shall be binding upon the parties hereto and the successors and assigns of each of them. -6- h IN WITNESS WHEREOF, each party hereto has pursuant to resolution duly passed and adopted by its respective governing body caused this agreement to be executed the date first above written. BUENA SANITATION DISTRICT BY CITY OF CARLSBAD CLAUDE A. LEWIS, Mayor -7- AGREEMENT BETWEEN THE BUENA SANITATION DISTRICT AND CITY OF CARLSBAD FOR THE LEASE OF CAPACITY IN THE ENCINA OUTFALL This Agreement, made and entered into this 15th day of December , 1981, by and between BUENA SANITATION DISTRICT, a county sanitation district, formed and existinp under the County Sanitation District Act . . (Section 4700, et seq., Health and Safety Code) hereinafter referred to as "Buena" and the City of Carlsbad, a municipal corporation hereinafter referred to as "Carlsbad." WITNESSETH: . 1. The City of Carlshad and Buena Sanitation District entered into an Agreement for the lease of capacity in a land sewage outfall on June 20, 1966. 2. Now Buena and Carlsbad desire to rescind that Agreement and replace it bv a new Agreement. . NOW THEREFORE, the parties hereto agree as follows: Section 1. EFFECTIVE DATE: This Agreement shall take effect December 15, 1981 . Section 2. LEASE OF CAPACITY: Buena agrees to lease to Carlsbad the following listed percentapes of capacitv in the Encina Outfall: . Contract No. 18200-R STATION TO STATION* % OF TOTAL LINE CAPACITY 0 + 00 20 + 81.43 33 + 36.43 42 + 28.18 67 + 42.43 87 + 57.43 190 + 93.29 204 + 08.65 20 + 81.43 33 + 36.43 42 + 28.18 67 + 42.43 87 + 57.43 190 + 93.29 204 + 08.65 209 + 56.94 34.88 $ 48,625 31.71 14,280 28.21 10,070 28.21 20,900 21.13 11,735 18.84 45,950 17.65 5,630 17.65 2,410 Total $159,600 AMOIJNT *Stations as shown on hereinafter mentioned plans. **Capacity is defined as the total amount of sewage conveyed by each section of the Encina Outfall, flowing full without surcharge or spillage. . Said Encina Outfall is the outfall sewer line, shown on those certain plans entitled "Plans for the Project-Sheets 1 through 7 Inclusive" on file in the office of the DeDartment of Public Works of the County of San San Diepo, 5555 Overland Avenue, Buildinn 1, San Diego, California, a copy of which has been furnished to Carlshad. Section 3. TERMS OF LEASE 1. Buena shall lease to Carlshad for a period commencing the effective date of this agreement and ending on or before July 1, 1996, the percentaRes of capacity listed in Section 2 herein, said lease to he upon the following terms and conditions: (a> The total rental sum shall be $159,600 of which $85,120 shall be paid on or before the date of this Agreement. The remaining sum shall be payable as follows: 14 equal annual payments of $5,320 each, beginninc! July 1, 19a2, and payable each July 1 thereafter until fully paid. (b) Options are hereby granted by Buena to Carlsbad to purchase the capacitv which is the subject of this lease. These options may be exercised provided lesee is not in default 2 of lease payments at the time lessee exercises the option to purchase. The option purchase price shall be the sum of $159,600 less the amount of rental already paid to Ruena under the terms of this Agreement. 2. Carlsbad may exercise the option to purchase at any time by giving one month’s notice in writing, sent by registered or certified mail to Ruena. Title to the capacity shall vest in Carlsbad upon delivery to Ruena of payment in the full amount of said purchase price together with any rental payment due . at the time of the exercise of said option. Until such’time as Carlsbad exercises its option, title to the capacity which is the subject of this Apreement will remain in Ruena. 3. Carlsbad shall not lose its right to exercise said option upon termination of the lease period, unless Carlsbad fails to exercise the same within ten (10) davs after receipt of written notice from Puena to do so and to make promot payment of any amount due or if no amount is due then one dollar. Section 4. CONNECTIONS: Carlsbad, at its sole expense, shall be responsible for the construction, installation; maintenance, repair, replacement or reconstruction of any necessary transmission facilities from the Carlsbad Service Area to the Encina Outfall and for the connection of such transmission facilities together with any necessary appurtenances to the Encina Outfall. I i . . Section 5. ENGINEER'S APPROVAL: The location, installation, construction, repair (except emergencv repairs) replacement and/or reconstruction of the connections to the Encina Outfall shall he according to plans -and specif'ications first approved by Buena's engineer. Section 6. LIMITATIONS ON TYPE AND CONDITION OF SEWAGE: All sewaRe discharged by Carlshad into Encina Outfall shall conform to the ordinances, resolutions, rules and regulations which Buena must adopt in accordance with Agreements of the Encina Joint Powers concerning the condition of sewage and waste permitted to be discharged to the Joint System or any part thereof. Section 7. METERING: Carlshad shall provide a device to meter the flow of sewage in the Encina Outfall at a point below any lateral connection, but above the Encina Sewape Treatment Facility. The meter will be installed and operated solely at Carlsbad's expense. Section 8. INFILTRATION: It is understood and agreed that there will be inflow of water into the Encina Outfall because of Leakage between the Carlsbad connection and the Encina Treatment Plant. Buena shall estimate the total waters that infiltrate the Encina Outfall between said connection and treatment plant (sometimes referred to herein as "infiltration") and apportion the same among all of such users of the Encina Outfall in the proportion that the amount of sewage discharged into the Encina Outfall by each such user bears to the total amount of sewape 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. 4 : Section 9. MAINTENANCE CHARGE: 1 . . 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 cauacitv, 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 connections to said outfall as compared to the total average flow of sewage discharged into said Encina Outfall. 2. Buena shall bill Carlsbad for its share of the cost from time to time, but at least annually, and Carlsbad shall pay its share of the cost to Ruena within thirtv (30) davs after heing so billed. 3. Buena shall keep accurate records of its cost of maintaininp and onerating the Encina Outfall and such records shall be open to inspection hv Carlsbad at all reasonable times. Section 10. CHARGE AGAINST CAPACITY RIGHTS IN ENCINA TREATMENT PLANT ANT, OCEAN OUTFALL: All sewage discharged into the Encina Outfall through Carlshad's connection, under the terms of this Agreement and thereafter discharged into the Encina Treatment Plant, and all infiltration allocable to Carlsbad as determined by Section 8 of this Agreement, shall be charged apainst Carlshad's capacity rights in and to the Encina Treatment Plant and Ocean Outfall. Section 11. REPAIRS: The Encina Outfall Sewer shall be maintained by Ruena in good repair and working order in accordance with sound eneineering practices. It shall be the dutv of Buena to make repairs on said Encina Outfall reouired to keep such outfall sewer in good operating condition. Except as provided in Section 12, the cost of all repairs shall be part of the maintenance costs of the Encina Outfall. 5 Section 12. MAJOR REPAIRS AND RECONSTRUCTION AND REPLACEMENT: Notwithstanding the provisions of Section 11 hereof, if it becomes necessary for Buena to undertake major repairs of said Encina Outfall or any portion thereof or to replace or reconstruct said Encina Outfall or any portion thereof, the parties hereto shall pav all costs of such major repair, replacement or reconstruction in the same proportion as the parties own or lease capacity in the Encina Outfall or portion thereof repaired, replaced or reconstructed. . Section 13. INTERRUPTION OF SERVICE; In the event of an interruption of services to Carlsbad in the Encina Outfall, as a result of disaster, operation of State or Federal law, discontinuance or intdrruption of service to Buena by the Encina Treatment Plant or Ocean Outfall, or any other carlse beyond the control of Buena, Buena shall-bear no liability and shall be held harmless by Carlsbad from anv claims and liabilities for any injury to or damage to any person or persons or propertv or for the death of any person or persons arising from or out of such interruption of service or for any other damages or costs incurred by Ruena as a result of such interruption of service. I : . . Section 14. ARBITRATION: Except as otherwise provided herein, all controversies arising out of the interpretation or application of this aereement or the refusal of either party to perform the whole or any part thereof shall be settled by arbitration in accordance with the provisions of this section and where not provided by this section, in accordance with the statutory provisions of the State of California then in force. The controversy shall be submitted to a board of three (3) arbitrators which shall he 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 arbitration, (2) the controversy to be arbitrated, (3) that it has appointed its nominee, and (4) that it reauests the other party to appint its nominee. Within thirty (30) days from the receipt of said notice the other party shall appoint its nominee. Within fifteen (15) days after the last party has appointed its nominee the two nominees shall appoint the third. None of the arbitrators shall be a resident of, or taxpayer in, or own property in, or have a place of business in, or be emploved 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 Rive each partv written notice thereof. The arbitration shall be restricted to matters relative to that stated in the notice requesting arbitration. The arbitration board shall have no authority to add to or subtract-from this agreement. Each party shall be given an opportunity to be heard and to present evidence. Upon conclusion of the hearing or hearings the arbitration board shall reduce 7 . , ‘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 arbitrators’ determination is not linanimous. Each party shall pay its own expenses, including the expenses of the arbitrator which it nominates. The expenses of the third arbitrator and the administrative costs of the arbitration proceedings shall be shared equally. Any controversy which can he determined by an engineer’s findings and which under this section could be submitted to arbitration may, ii the parties thereto agree i.n 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 hoard. He shall proceed in the same manner and shall mak.e findings, conclusions and an award in the manner provided herein for an arbitration board. Section 15. NOTICE : Notices required or permitted under this agreement shall be sufficiently given if in writing and if either served pesonally upon or mailed by registered or certified mail to the clerk or secretary of the governing body of the affected party to this agreement. Section 16. LIABILITY: Nothing herein contained shall operate to relieve Carlsbad of any liability for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement or reconstruction of the aforesaid sewer connections and appurtenances or from anv action or inaction of Carlsbaqd or of its officers, agents or employees in connection therewith. 8 And except as provided in Section 16 nothing herein contained shall operate to relieve Ruena of any liability for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement and/or reconstruction of the aforesaid sewer connections and appurtenances -or from any action or inaction of Ruena or of its officers, agents or employees in connection therewith. Section 17. INDEMNITY: To the extent it may legally do so, Carlsbad shall defend and save and hold free and harmless Ruena and its . . agents, officers and employees from any claims, liabilities, penalties or fines for injury to or damage to any person or property or for the death of any person arising from or out of any act or omission of Carlsbad, its agents, officers, employees or contractors, arising from or out of any defects in the installation; construction, operation; maintenance, repair, replacement or reconstruction of said sewer connections or appurtenances. Section 18. TIME OF ESSENCE: Time is of the essence of this areement. Section 19. SEVERABILTTY: If any section, subsection, sentence, clause, phrase or word of this agreement, or the application thereof, to any party, or to any other person or circumstance is for any reason held invalid, it shall be deemed severable and the validity or the remainder of the agreement or the application of such provision to the other parties or to any other persons or circumstances shall not be affected thereby. Each party hereby declared that it would have entered into this agreement and each section, subsection, sentence, clause, phrase and work thereof irrespective of the fact that one or more sections, subsections, sentences, clauses, phrases or words, or the application thereof to any party or any other person or circumstance be held invalid. 9 ’ I C . . ’ Section 20. This agreement shall be binding upon the parties hereto and the successors and assigns of each of them. IN WITNESS WHEREOF, each party hereto has pursuant to resolution duly passed and adopted by its respective governing body caused this agreement to be executed the date first above written. BIJENA SANITATION DISTRICT BY /+92& I Aas't.Clerk #Board of Directors APPROVED BY THE DISTWT BOARD OF DIRECTOf& ‘j” 15 1981 #f-y OF CARLSBAD CUZK OF THE DISTRICT 8011(0 Q MQCT‘)Rs Mayor . 10 -, ’ 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 Office of the City Clerk TELEPHONE: (714) 438-5535 4Citp of 4CarMmb November 9, 1981 R. J. Massman, Director Dept. of Public Works 5555 Overland Ave., Building 1 San Diego, CA 92123 Attention: Jim Frandsen Re: Agreement between the City of Carlsbad and Buena Sanitation District for Lease of Capacity in the Encina Outfall The Carlsbad City Council, at their meeting of November 3, 1981, adopted Resolution No. 6717 approving an agreement with the Buena Sanitation District for lease of capacity in the Encina Outfall. Enclosed is the original agreement, which has been executed by Mayor Packard on behalf of the City of Carlsbad. After the agreement has been fully ;;e;uazd, please see that we are furnished a copy . Also enclosed for your records and information is a copy of Resolution No. 6717: If you have any questions regarding this matter, please do not hesitate to contact this office. City Clerk ALR:krs Enclosures 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 16 19 2c 21 2i 22 24 *'25 : i 2% i? 2E! RESOLUTION NO. 6717 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN A- BETWEEN THE CITY OF CARLSBAD AND THE BUENA SANITATION DISTRICT FOR LEASE OF CAPACITY IN THE ENCINA OUTFALL The City Council of the City of Carlsbad, California, does hereby resolve ' .s follows: 1. That an agreement between the City of Carlsbad and the Buena Sanitation listrict for lease of capacity in the Encina Outfall, a copy of which is attached d' lereto and made a part hereof, is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and lirected to execute said agreement for and on behalf of the City of Carlsbad. PASSED, APPROVED AND AIWTED at a regular meeting of the Carl&ad City Mncil held on the 3rd day of November F 1981, by the following vote, :o wit: AYES: NOES: ABSENT: UTEST: Council%&ers Packard, CAsler,Anear,Lewis and&&&in. None None =4fci!?iaq T@XALD C. PACKAKD, Mayor (SEAL)