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HomeMy WebLinkAboutParty Agreement for the West Influent Pipeline; 2014-12-09;RESOLUTION 2015-01 RESOLUTION OF THE BOARD OF DIRECTORS OF THE ENCINA WASTEWATER AUTHORITY AGREEMENT AUTHORIZATION FOR THE OWNERSHIP, OPERATION, AND MAINTENANCE OF THE WEST INFLUENT PIPELINE WHEREAS, the Encina Wastewater Authority (EWA) is responsible for the operation, maintenance and administration of the Encina Water Pollution Control Facility (EWPCF); and, WHEREAS, the Leucadia Wastewater District and the Cities of Carlsbad, Vista and Encinitas are four of the six member agencies that own the EWPCF and each sends wastewater to that facility for treatment; and, WHEREAS, the Leucadia Wastewater District and the Cities of Carlsbad, Vista and Encinitas each sends wastewater through an interceptor sewer segment referred to as the West Influent Pipeline; and, WHEREAS, the West Influent Pipeline was reconstructed by EWA in November 2010 with the cost paid for by the Leucadia Wastewater District and the Cities of Carlsbad, Vista and Encinitas; and, WHEREAS, the EWA, Leucadia Wastewater District, and the Cities of Carlsbad, Vista and Encinitas desire to enter into a separate agreement for the West Influent Pipeline ownership, operation, and maintenance; and, WHEREAS, the EWA shall provide the Owners with access and any other cooperation reasonably necessary for the operation, maintenance, improvement and/or enlargement of the West Influent Pipeline. NOW, THEREFORE, it is hereby resolved the EWA Board of Directors approves the West Influent Pipeline Agreement hereto as Attachment 1. PASSED AND ADOPTED at a meeting of the Board of Directors of the Encina Wastewater Authority held April 22, 2015, by the following vote: Representative Agency Vote Chair Sullivan Leucadia Wastewater District Aye Vice Chair Blackburn City of Carlsbad Aye Director Schumacher City of Carlsbad Aye John Aguilera (Alternate) City of Vista Aye Director Rigby City of Vista Aye John Aguilera (Alternate) Buena Sanitation District Aye Director Rigby Buena Sanitation District Aye Director Gaspar City of Encinitas Aye Ref. Admin 15-12142 Director Muir Director Hernandez Director Elitharp Director Juliussen ATTEST: Sullivan/ Chair/ Bifard of Directors Encina Wastewater Authority EWA Boar ... Jf Directors Resolution 2015-01 West Influent Pipeline Agreement City of Encinitas Vallecitos Water District Vallecitos Water District Leucadia Wastewater District Paula Clowar1 Board Secretary Encina Wastewater Authority Aye Aye Aye Aye Ref. Admin 15-12141 AGREEMENT FOR THE OWNERSHIP, OPERATION, AND MAINTENANCE OF THE WEST INFLUENT PIPELINE THIS AGREEMENT is made and entered into as of ,72ece.mbe.y 9 , 2014, by and between the City of Vista, a chartered municipal corporation ("Vista"); the City of Carlsbad, a chartered municipal corporation ("Carlsbad"); the Leucadia Wastewater District, a county water district ("LWD"); the City of Encinitas, a general law city CEncinitas"), and the Encina Wastewater Authority, a public agency ("EWA"). These entities are also individually referred to as a "Party" and collectively as "Parties." RECITALS A EWA is responsible for the operation, maintenance and administration of the Encina Water Pollution Control Facility. B. Vista, Carlsbad, LWD, and Encinitas are four of the six members of the Encina Joint Powers Authority that own the Encina Water Pollution Control Facility, and each sends wastewater to that facility for treatment. C. On February 26, 2002, Carlsbad and Vista entered into an agreement for the ownership, operation, and maintenance of the Vista/Carlsbad Interceptor. An interceptor sewer pipeline jointly owned by Vista and Carlsbad which extends to the Encina Water Pollution Control Facility. The individual pipeline segments of the Vista/Carlsbad Interceptor have been commonly referred to as VC1 through VC16. This agreement was amended and restated on June 11, 2013. D. The segment formerly known as VC16 has been reconstructed by EWA and paid for by Vista, Carlsbad, LWD, and Encinitas and is now known as the West Influent Pipeline. It receives flows from both the Vista/Carlsbad Interceptor and the Occidental line which serves and is owned, operated, and maintained by Carlsbad, LWD, and Encinitas. E. The West Influent Pipeline begins at the confluence junction structure of the V/C Intercepter Sewer and the Occidental Sewer as shown on the City of Carlsbad Drawing Number 474-8 and terminates at the influent junction structure of the Encina Water Pollution Control Facility. The West Influent Pipeline includes the confluence junction structure but excludes all sewer pipeline connections to that structure. A schematic drawing of the West Influent Pipeline is attached as Exhibit A F. The Parties desire to enter into an agreement for the ownership, operation, and maintenance of the West Influent Pipeline. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, the Parties agree as follows: Section 1 DEFINITIONS For the purposes of this Agreement, the following terms shall have the meanings indicated: 1.1 Administrator. The Administrator shall be the individuals designated to administer the functions of the sewer system for that Party. For Vista, Carlsbad, and Encinitas the WEST INFLUENT PIPB..INEAGREEMENT west influent pipeline agreerrentfinal ~ersion (11-4-14).docx Page 1 VISTA/CARLSBAD/ LWD/ENCINrTAS/EWA Administrator is each City's City Manager or his or her designated representative. For LWD and EWA, the Administrator is the General Manager or his or her designated representative. 1.2 Capacity. Capacity is identified in Exhibit B. 1.3 Improvement or Enlargement Costs. These include the cost of land, easements, rights-of-way, engineering, construction management, construction inspection, and construction. 1.4 Lead Agency. The Party identified in a Project Agreement as responsible for the planning, design, and construction of a given component of the West Influent Pipeline. 1.5 Ownership Interest. Vista, Carlsbad, LWD, and Encinitas jointly own the West Influent Pipeline, and their respective ownership interests in the West Influent Pipeline is set forth in Exhibit B. For purposes of this Agreement, Vista, Carlsbad, LWD, and Encinitas are referred to collectively as the "Owners." 1.6 Project Agreement. A separate agreement between Owners that defines project- specific requirements of each Owner, cost sharing for design and construction, the method of cost accounting and the payment schedule for the improvement or enlargement of the West Influent Pipeline. 1.7 Wastewater. Wastewater shall be construed to mean domestic sewage, authorized industrial discharges that are in compliance with the EWA's Source Control Program, and Inflow/Infiltration. Section 2 JOINT PARTICIPATION The Owners shall participate jointly in the construction, ownership, maintenance, operation, and use of the West Influent Pipeline, including the parts thereof which may be subsequently acquired or constructed for the improvement or enlargement thereof. The Owners shall pay for such construction, ownership, maintenance, operation, and use of the West Influent Pipeline in proportion to their respective Ownership Interests or as otherwise provided below. Section 3 CAPACITY RIGHTS 3.1 Each Owner has heretofore paid for its Ownership Interest. 3.2 No Owner may grant, encumber, limit, or restrict its interest in any part of the West Influent Pipeline for any purpose other than the disposal of wastewater, without the prior written approval of all the other Owners. 3.3 None of the Owners shall exceed their Capacity rights in the West Influent Pipeline. Any use of Capacity in excess of an Owner's Ownership Interest shall be considered a trespass. Any Owner is hereby authorized to specifically enforce the terms of this section against another Owner, including through commencement of a proceeding at law or equity. The Owners agree that specific enforcement is a proper remedy in that payment of damages is not an adequate remedy for the potential losses to any Owner resulting from the loss of Capacity. For example, replacement of Capacity may be impractical and the consequences for the economic development of an Owner are not readily subject to quantification. Each Owner hereby consents to the commencement of such action or actions and waives any right it may WEST INFLUENT PIPELINE AGREEMENT ll<lSt influent pipeline agreerrentfinal 1ersion (11-4-14).docx Page 2 VISTA/CARLSBAD/ LVIID/ENCINfTAS/8NA have to further approval of such actions under this Agreement. In addition to any injunctive relief, any Owner may seek consequential damages. In any such action, the prevailing party shall be entitled to attorney's fees and costs. · Section4 ACQUISITION OF ADDITIONAL CAPACITY In the event any Owner requires capacity in the West Influent Pipeline in excess of the proportionate capacity allowed under this Agreement, and the West Influent Pipeline is not being used by the other Owners to the full percentage of the total capacity to which they are entitled, the Owner requiring additional capacity may license, lease, or purchase such additional capacity from the other parties. Such license, lease, or purchase shall be accomplished by written agreement; a copy of which shall be provided to each Owner, and Exhibit B will be deemed amended to conform to the new percentages. The value of the West Influent Pipeline as of April 2011 is $678,395. The replacement value of the West Influent Pipeline shall be caJculated by multiplying the value as of April 2011, by the percentage change in the Engineering News Record Construction Cost Index for Los Angeles (ENRLA) for each calendar year starting with 2012, then adding the resulting products to the original value of the subject facility. Section 5 RESPONSIBIL TY OF LEAD AGENCY Carlsbad shall be the Lead Agency with maintenance responsibility for the West Influent Pipeline, unless agreed upon otherwise by a separate Project Agreement. The Owners shall mutually agree on all recommendations for improvements and enlargements to the West Influent Pipeline; however, a separate Project Agreement shall be prepared and executed by the Owners for all future improvements and enlargements to the West Influent Pipeline and to determine the Lead Agency for that project. SectionS IMPROVEMENTS OR ENLARGEMENTS OF THE WEST INFLUENT PIPELINE 6.1 As deemed necessary, the Owners shall meet to discuss future improvements or enlargements of the West Influent Pipeline. Once it is agreed between the Owners that an improvement or enlargement is necessary, planning and design work for the improvement or enlargement of the West Influent Pipeline shall be prepared. Upon completion and acceptance by the Owners of the planning and design work schematically detailing an improvement or enlargement, a Lead Agency will be designated that will prepare a Project Agreement which will identify the project specific requirements of each Owner including the cost sharing for design and construction. 6.2 When the Project Agreement has been accepted by the legislative body of each Owner, the Lead Agency under the Project Agreement shall engage th.e services of a consultant or consultants to prepare plans, specifications, and related materials necessary for the acquisition and construction of the improvements or enlargements. The specifications shall contain all appropriate hold harmless clauses, insurance requirements, and indemnifications for those agencies involved in the project. 6.3 Upon completion of the plans, specifications, and related materials, their approval by the other Owners, the acquisition of necessary lands and right-of-way, and at such time as the Owners are prepared to finance their proportionate shares of the acquisition and construction cost, including determining any maximum funding commitments, the Lead Agency WEST INFLUENT PIPB..INEAGREEMENT west influent pipeline agreerrent final \ersion (11-4-14).docx Page 3 VISTA/CARLSBAD/ LWD/ENCINffAS/BNA under the Project Agreement shall advertise for bids for the construction of the improvements or enlargements or such portion thereof as may be hereafter agreed to by the Owners. The decision to accept bids and award the construction contract shall be the sole responsibility of the Lead Agency. The Lead Agency shall cause the work to be inspected, administer the execution of the contract, and approve necessary change orders. All records for improvements or enlargements shall be permanently retained. Section 7 COST SHARING OF IMPROVEMENTS OR ENLARGEMENTS All improvement or enlargement costs of the West Influent Pipeline shall be borne and paid by the Owners in proportion to each Owner's Ownership Interest or as otherwise provided in the Project Agreement. Should the percentage of capacity to be owned after improvements are constructed vary from Exhibit 8, then Exhibit 8 shall be amended accordingly upon completion of construction. Section 8 OPERATIONS, MAINTENANCE, AND ACCESS 8.1 Carlsbad shall be the Lead Agency for the operation and maintenance of the West Influent Pipeline and shall maintain it in good repair and working order in accordance with recognized sound engineering practice. Carlsbad shall maintain accurate records and accounts in connection with the operation and maintenance of the West Influent Pipeline for a minimum period of five years. These records and accounts shall be available for inspection by any other Party upon written request. 8.2 Operation and maintenance of the West Influent Pipeline shall include the labor, equipment, and materials required for daily operation and routine maintenance. Routine maintenance activities typically include annual visual inspections of the ·confluence junction structure, clearing around the structure, and replacement of corroded or damaged confluence junction structure appurtenances. Cleaning and CCTV inspections of the West Influent Pipeline will be performed at least every five years or as necessary to maintain the intended function of the West Influent Pipeline. 8.3 EWA shall provide the Owners with access and any other cooperation reasonably necessary for the operation, maintenance, improvement and/or enlargement of the West Influent Pipeline in accordance with the terms of this Agreement. Section 9 BUDGETING AND ACCOUNTING FOR OPERATION AND MAINTENANCE 9.1 The Owners shall share in the operation and maintenance expenses of the West Influent Pipeline in proportion to their respective Ownership Interests. Special inspections and cleaning not included as part of routine maintenance will be performed as necessary by Carlsbad or a qualified contractor, as agreed by all Owners, and invoiced to each Owner on a time and materials basis in proportion to each Owner's Ownership Interest. Section 10 EMERGENCY REPAIRS OR RECONSTRUCTION 10.1 Carlsbad shall be allowed to perform emergency repairs or reconstruction of the West Influent Pipeline, in whole or in part, without prior approval from the other Owners, as necessary to maintain the continuous operation of the system such that the need for repair or WEST INFLUENT PIPELINE AGREEMENT v.est inf\ueflt pipeline agreerrentfina/ \ersion(11·4-14).docx Page 4 VISTA/CARLSBAD/ L\1\JD/ENCINfTAS/BNA reconstruction is necessary to prevent property damage or imminent danger to health and safety. 10.2 The Owners shall each pay all cost of emergency repair or reconstruction of the West Influent Pipeline, or portion thereof, in proportion to their Ownership Interests. Section 11 BUDGETING AND ACCOUNTING 11.1 Each Owner shall be strictly accountable for all funds received and shall maintain adequate records of all receipts and disbursements pursuant to this Agreement. In addition, each Owner shall maintain such additional records relating to the acquisition, construction, ownership, maintenance, operation, and use of the West Influent Pipeline as is appropriate. Each of the Owners, with reasonable notice, has the right to inspect and examine the records of the other Owner insofar as such records relate to the West Influent Pipeline. 11.2 Each Owner shall maintain all records relating to the West Influent Pipeline for a minimum of five years, except records for improvements or enlargements. Records for improvements or enlargements shall be kept permanently. Section 12 INSURANCE Each Owner shall maintain for the duration of the Agreement, and any and all amendments, liability insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services of each Owner, their agents, representatives, employees, or subcontractors. Each Party shall maintain workers' compensation coverage and limits as required by the California Labor Code. Section 13 WASTEWATER SPILLS 13.1 In the event of a wastewater spill from the West Influent Pipeline that occurs as a result of an unforeseen condition, where such wastewater spill could not have been prevented with normal and routine maintenance, then each Owner shall be responsible for the costs for cleanup and payment of any legal fines and expenses incurred in proportion to each Owner's Ownership Interest in the West Influent Pipeline. 13.2 An Owner, which by its sole negligence or willful misconduct, causes a wastewater spill shall be solely responsible for all costs for cleanup and payment of any legal fines and expenses incurred. Section 14 APPORTIONMENT OF LIABILITY 14.1 Any liability incurred by the Owners, which liability arises out of or in connection with the construction, operation, or maintenance of the West Influent Pipeline, shall be discharged by payment by each Owner in proportion to its Ownership Interest. 14.2. Notwithstanding the provisions of Government Code Section 895.2, Owners shall, to the fullest extent allowed by law, indemnify, defend, and hold EWA and the member agencies of EWA which have no ownership interest in the West Influent Pipeline, their officers, directors, agents, and employees harmless from any and all claims, demands, liens, actions, liabilities, costs, and expenses, including attorney's fees, based upon or arising out of, or WEST INFLUENT PIPB_INEAGREEMENT west influent pipeline agreerrent final \ersion (11-4-14). docx Page 5 VISTA/CARLSBAD/ LWD/ENCINITAS/ EWA claimed to have arisen out of, any act or omission by EWA related to this Agreement, other than actual intentional or willful misconduct of an EWA employee, officer, or agent. 14.3. Owners also agree to hold harmless and defend such agencies and EWA, their directors, officers, agents, and employees with respect to claims or legal proceedings or judgments made, filed, or presented against the foregoing, by reason of Owners', or their officers', agents', or employees' negligence, intentional or willful misconduct regarding the West Influent Pipeline during the term of this Agreement. Section 15 NOTICE Any notice or demand which may or must be given or made by a Party under the terms of this Agreement or any statute or ordinance shalf be in writing; and shalf be deemed received on: (a) the day of delivery if delivered by hand (including overnight courier service) during receiving Party's regular business hours or by facsimile before or during receiving Party's regular business hours; or (b) the day of delivery shown on a return receipt for registered or certified United States mail. Section 16 SETTLEMENT OF DISPUTES OR CONTROVERSIES Should any dispute or controversy arise in connection with this Agreement or in connection with the acquisition, construction, maintenance, operation, repair, reconstruction, or enlargement of the West Influent Pipeline or in connection with any of the affairs or operation thereof, or the execution of the term of this Agreement, the Parties shalf make reasonable efforts to resolve the dispute. In the event that the Parties are unable to reach a resolution to the dispute and prior to initiating any legal action, the Parties shall select a neutral mediator to assist in the resolution of the dispute. Each Party shalf share equally in the cost of the mediator. Section 17 MODIFICATION OF AGREEMENT This Agreement shalf contain all of the terms and conditions made between the Parties hereto and shalf not be amended except by an agreement in writing signed by all Parties. Section 18 SEVERABILITY If any section, subsection, sentence, clause, phrase, or word of this Agreement, or the application thereof, to any Party, to any other person or circumstance is for any reason held invalid, it shall be deemed severable and the validity of the remainder of the Agreement or the application of such provision to the other Parties, or to any other person or circumstance shalf not be affected thereby. Each Party hereby declares that it would have entered into this Agreement and each section, subsection, sentence, clause, phrase, and word thereof irrespective of the fact that one or more section, subsection, sentence, clause, phrase, or word, or the application thereof to any Party or any other person or circumstance be held invalid. Section 18 COUNTERPARTS AND EXHIBITS This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shalf constitute one and the same instrument. All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any exhibit, the provisions of this Agreement shalf prevail. \IllEST INFLUENT PIPB_INEAGREEMENT wast influ€1l! pipeline agreermntftna/ 1ersion (11-4-14).docx Page 6 VISTA/CARLSBAD/ LVVD/ENCINITAS/EWA MH OCCIDENTAL SEWER VISTA/CARLSBAD INTERCEPTOR SEWER REACH VC15 JUNCTION STRUCTURE INFLUENT JUNCTION STRUCTURE ----fl--- WEST INFLUENT PIPELINE •I NORTH DRIVEWAY ENCINA WATER POLLUTION CONTROL FACILITY . ,ROJECT NAME AGREEMENT FOR OWNERSHIP, OPERATION, AND MAINTENANCE OF THE WEST INFLUENT PIPELINE PLOTTED BY: SCOTT EVANS PLOT DATE: 11/6/14 PA 7H:D: \UTIUTIES DEPARWENT\DES/GN D/VIS/ON\SI.II7H\II£ST INFLUENT PIPEUNE EXH/8/T.Dl\'G NOT TO SCALE EXHIBIT A I PIPELINE CAPACITY EXHIBIT B The Capacity of West Influent Pipeline is 76.961 MGD. The percentage ownership and capacity ownership of each of the Owners is shown below: Percentage Capacity Ownership Ownership City of Carlsbad 34.8% 26.7824 MGD City of Encinitas 6.7% 5.1564 MGD Leucadia Wastewater District 26.1% 20.0868 MGD City of Vista 32.4% 24.9354 MGD Total 100.0% 76.9610 MGD '='ROJECT NAME AGREEMENT FOR OWNERSHIP, OPERATION, AND MAINTENANCE OF THE WEST INFLUENT PIPELINE EXHIBIT B ATTACHMENT 3 OWNER APPROVALS March 25, 2015 Section 19 TERM The initial Termination Date of this Agreement will be 20 years from the date first above written. This Agreement shall automatically renew as provided below unless a Party gives written notice of non-renewal at least 12 calendar months prior to the initial Termination Date or any succeeding Term ination Date. Unless such notice of non-renewal is timely given, this Agreement shall automatically renew for an additional 10 years, and a new Termination Date shall be accordingly established. IN WITNESS WHEREOF, each Party has, pursuant to resolution duly passed and adopted by its respective governing body, approved this Agreement and caused it to be executed and be effective as of the date first above written. CIT Y OF VISTA, a chartered municipal corporation .... By:~ JU~- ATTEST: Marci Killian, City Clerk By: ~~Mtv-J APPROVED AS TO FORM: Daro!d P~ieper · Attar y--- By: _________________ ~~-~~+----------- APPROVED Darold Pieper 1704 111214 CITY OF ENCINITAS, a general law city By:-~~~~-=-=-=~-------KRISTIN GASPAR, Mayor ATTEST: Kathy Hollywood, City Clerk By:----------------------- APPROVED AS TO FORM: Glenn Sabine, City Attorney By: _____________ _ WEST INFLUENT PIPaiNEAGREEMENT I'IISI lriiUIXII plpcllno 1J9re<ll!'e I'll Ani'! \erslon ( 11,4·14).ooox CITY OF CARLSBAD, a chartered municipal corporation By:_~==~~~~--------------MA TT HALL, Mayor ATTEST: Lorraine M. Wood, City Clerk By: __________________ _ APPROVED AS TO FORM: Celia A Brewer, City Attorney By: _______________ __ LEUCADIA WASTEWATER DISTRICT, a county sanitation district By: ______________________ ___ DAVID KULCHIN, President ATTEST: Paul J. Bushee, Secretary By:-------------- APPROVED AS TO FORM: Wayne Brechtel, District Counsel By:------------------------- Page 7 VISTA/CARLSBAD{ LVIID/ENCINrrAS/E\IVA Section 19 TERM The Initial Termination Date of this Agreement will be 20 years from the date first above wrltten. This Agreement shall automatically renew as provided below unlesli a Party gives: written notice of nan-renewal at least 12 calendar months prior to the initial TermlnaHcn Date or any succeeding Tennination Date. Unless such notice of non-renewal ls timely given, this Agreement shall automatically renew for an adcf!Uonel 10 years. and a new Termination Data shan be accordingly estabtished. IN WITNESS WHEREOF, each Party has, pursuant to resolution duly passed and adopted by Its respective governing body, approved this ~reement and caused it to be executed and be effective as of the date first above written. crrv OF VISTA, a chartered municipal corporaUon ...,, By:~ JU~- ATIEST: Marcl Killian, City Clark By: ~t..:f#eu-J APPROVED~ TO FORM Darold P~leper · Atto By: _-:-:-: APP"OII\iO Der<Jidl Pltper 1104 11121'1 CITY OF ENCINITAS, a general law cHy By;_~=~~~~~----KRISTIN GASPAR. Mayor ATTEST: Kathy Hollywood, City Clerk By. ______________________ __ APPROVED AS TO FORM Glenn Sabine, Ctty Attomey By: ___________ _ V\£ST NFI.UENT PIPEl.INEAGREEMENT -llr11Yn pM11t *"'"l!'ltl'llnlll ~~n•an 11-4o1• cilc~ CITY OF CARLSBAD, a chartered municipal corporaUon ATIEST: By: --\-,lr;..r....I1Ao41w:~~~~di::~~~- APPRO\ISO AS TO RM. Celia A. Brewer, City Attorney ay:Jl.aA. ~ LEUCADIA WASTEWATER DISTRICT, a county sanitation district By:-~,..,...--~~~~~~---DAVID KULCHIN. PresTdent A TrEST: Paul J. Bushee, Secretary By:---------------- APPROVED~ TO FORM: Wayne Brechtel, District Counsel By. __________________ _ Page7 VSTAJCAR.SBACY L'Ml'EN:ANITAS/EWA Section 19 TERM The initial Termination Date of this Agreement will be 20 years from the date first above written. This Agreement shall automatically renew as provided below unless a Party gives written notice of non-renewal at least 12 calendar months prior to the initial Termination Date or any succeeding Termination Date. Unless such notice of non-renewal is timely given, this Agreement shall automatically renew for an additional 10 years, and a new Termination Date shall be accordingly established. IN WITNESS WH EREOF, each Party has, pursuant to resolution duly passed and adopted by its respective governing body, approved this Agreement and caused it to be executed and be effective as of the date first above written. CITY OF VISTA, a chartered municipal corporation ~ By:~ JU~ ATTEST: Marci Killian, City Clerk By ~~Mtu-J APPROVED AS TO FORM: Darold P~ieper · Attar y--- By: ________________ ~~--~~----------- APPROVED Darold Pieper 1704111214 CITY OF ENCINITAS, a general law city By: ________________________ __ KRISTIN GASPAR, Mayor ATIEST: Kathy Hollywood, City Clerk By:------------------------- APPROVED AS TO FORM: Glenn Sabine, City Attorney By: ________________________ __ WEST INFLUENT PIPa iNEAGREEMENT wost lnluont ppllllrc ngreell'(lnl ftnm wnlon ( 11·4·14).docx CITY OF CARLSBAD, a chartered municipal corporation By: __ ~==~~~~--------------MA TT HALL, Mayor ATTEST: Lorraine M. Wood, City Clerk By: ________________________ __ APPROVED AS TO FORM: Celia A. Brewer, City Attorney By: __________________________ _ LEUCADIA WASTEWA ER DISTRICT, a county water di let ATTEST: Paul~, Sec~ By: )Z L 7 APPROVED AS TO FORM: Wayne Brechtel, District Counsel By:+,& Page 7 - VISTA/CARLSBAD/ LWDIENCINrrAS/EWA Section 19 TERM The Initial Termination Date of this Agreement will be 20 years from the date first above written. This Agreement shall automatically renew as provided below unless a Party gives written notice of non~renewal at least 12 calendar months prior to the initial Termination Date or any succeeding Termination Date. Unless such notice of non~renewal Is timely given, this Agreement shall automatically renew for an additional 10 years, and a new Termination Date shall be accordingly established. IN WITNESS WHEREOF, each Party has, pursuant to resolution duly passed and adopted by Its respective governing body, approved this Agreement and caused it to be executed and be effective as of the date first above written. CITY OF VISTA, a chartered municipal corporation o.., By:~ JUtJTTEFf,MaYOr ATTEST: Marci Killian, City Clerk By ~u:~L~ APPROVED AS TO FORM: Darold P~leper i~ Attar y--- By: --~~::::__..:....=;__,...c::.-}-----­APPnoveo Dnrold Pieper 1704 111214 CITY OF ENCINIT fJS, a general law city WEST INFLUENT PIPEl.INE!AGRt:EMENT 1\o!UI ltiillltnl 1~11"1111~ llOIO<JIY'!Jt~ ~ttOII<ll!l~n( 11·4 1•11 tiOOX CITY OF CARLSBAD, a chartered municipal corporation By: __ ~==~~~~~~~~~~- MATT HALL, Mayor ATTEST: Lorraine M. Wood, City Clerk By:_~---------­ APPROVED AS TO FORM: Celia A. Brewer, City Attorney By:------------ LEUCADIA WfJSTEWATER DISTRICT, a county sanitation district By: ___________ _ DAVID KULCHIN, President ATTEST: Paul J. Bushee, Secretary By:------------- APPROVED AS TO FORM: Wayne Brechtel, District Counsel By:------------ Page 7 VISl'A/CARLSBAO' I.WOJENCINfrAS/I:WA ATTEST: By:/~.~ APPROVED AS TO FORM: =~0~--~~ WEST INFLUENT PIPaiNEAGREEMENT ,.,.., lrlluerM pp.,lre ~grotl!'at11nllwnron(1 1·"-14).dOCK Page 8 VISTA/CARLS8Atl' L'MJ/8\0NrTASJ EWA EXHIBIT 3 AGREEMENT FOR THE OWNERSHIP, OPERATION, AND MAINTENANCE OF THE WEST INFLUENT PIPELINE THIS AGREEMENT is made and entered into as of ,1)c;..(c.m.b~r 9 , 2014, by and between the City of Vista, a chartered municipal corporation (~Vista"); the City of Carlsbad, a chartered municipal corporation (uCarlsbad"): the Leucadia Wastewater District, a county water district ("LWD"); the City of Encinitas, a general law city ("Encinitas"), and the Encina Wastewater Authority, a public agency ("EWA"). These entities are also individually referred to as a "Party" and collectively as "Parties." RECITALS A EWA is responsible for the operation, maintenance and administration of the Encina Water Pollution Control Facility. B. Vista, Carlsbad, LWD, and Encinitas are four of the six members of the Encina Joint Powers Authority that own the Encina Water Pollution Control Facility, and each sends wastewater to that facility for treatment C. On February 26, 2002, Carlsbad and Vista entered into an agreement for the ownership, operation, and maintenance of the Vista/Carlsbad Interceptor. An interceptor sewer pipeline jointly owned by Vista and Carlsbad which extends to the Encina Water Pollution Control Facility. The individual pipeline segments of the Vista/Carlsbad Interceptor have been commonly referred to as VC1 through VC16. This agreement was amended and restated on June 11,2013. D. The segment formerly known as VC16 has been reconstructed by EWA and paid for by Vista, Carlsbad, LWD, and Encinitas and is now known as the West Influent Pipeline. It receives flows from both the Vista/Carlsbad Interceptor and the Occidental line which serves and is owned, operated, and maintained by Carlsbad, LWD, and Encinitas. E. The West Influent Pipeline begins at the confluence junction structure of the VIC' Intercepter Sewer and the Occidental Sewer as shown on the City of Carlsbad Drawing Number 474-8 and terminates at the Influent junction structure of the Encina Water Pollution Control Facility. The West Influent Pipeline includes the confluence junction structure but excludes all sewer pipeline connections to that structure. A schematic drawing of the West Influent Pipeline is attached as Exhibit A F. The Parties desire to enter into an agreement for the ownership, operation, and maintenance of the West Influent Pipeline. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, the Parties agree as follows: Section1 DEFINITIONS For the purposes of this Agreement, the following terms shall have the meanings indicated: 1.1 Administrator. The Administrator shall be the individuals designated to administer the functions of the sewer system for that Party. For Vista, Carlsbad, and Encinitas the WEST INFLUENT PIPaiNEAGREEMENT -•nllun Pllllltneagre&ITIIntlinel wrsion{t 1"'"141 dOC~ Page 1 VISTA/CARI..SBACV LlfvOIENCINITAS/EWA '-------~----------------------"'"".~"" Administrator is each City's City Manager or his or her designated representative. For LWD and EWA. the Administrator is the General Manager or hi~ or her designated representative. 1.2 Capacity. Capacity is identified in Exhibit B. 1.3 Improvement or Enlargement Costs. These include the cost of land, easements, rights-of-way, engineering, construction management, construction inspection, and construction. 1.4 Lead Agency. The Party identified in a Project Agreement as responsible for the planning, design, and construction of a given component of the West Influent Pipenne. 1.5 Ownership Interest. Vista, Carlsbad, LWD, and Encinitas jointly own the West Influent Pipeline, and their respective ownership interests in the West Influent Pipeline is set forth in Exhibit B. For purposes of this Agreement, Vista, Carlsbad, LWD, and Encinitas are referred to collectively as the "Owners." 1.6 Project Agreement A separate agreement between Owners that defines project- specific requirements of each Owner, cost sharing for design and construction, the method of cost accounting and the payment schedule for the improvement or enlargement of the West Influent Pipeline. 1.7 Wastewater. Wastewater shall be construed to mean domestic sewage, authorized industrial discharges that are in compliance with the EWA's Source Control Program, and Inflow/Infiltration. Section2 JOINT PARTICIPATION The Owners shall participate jointly in the construction, ownership, maintenance, operation, and use of the West Influent Pipeline, including the parts thereof which may be subsequently acquired or constructed for the improvement or enlargement thereof. The Owners shall pay for such construction, ownership, maintenance, operation, and use of the West Influent Pipeline in proportion to their respective Ownership Interests or as otherwise provided below. Sectlon3 CAPACITY RIGHTS 3.1 Each Owner has heretofore paid for its Ownership Interest 3.2 No Owner may grant, encumber, limit, or restrict its interest in any part of the West Influent Pipeline for any purpose other than the disposal of wastewater, without the prior written approval of all the other Owners. 3.3 None of the Owners shall exceed their Capacity rights in the West Influent Pipeline. Any use of Capacity in excess of an Owner's Ownership Interest shall be considered a trespass. Any Owner is hereby authorized to specifically enforce the terms of this section against another Owner, including through commencement of a proceeding at law or equity. The Owners agree that specific enforcement is a proper remedy in that payment of damages is not an adequate remedy for the potential losses to any Owner resulting from the loss of Capacity. For example, replacement of Capacity may be impractical and the consequences for the economic development of an Owner are not readily subject to quantification. Each Owner hereby consents to the commencement of such action or actions and waives any right it may WEST INFLUENT PIPB.INEAGREEMENT _. nllu511 popl!'re a;nerretll ~nal \OiliiDn(l 1-+14).dacx Page2 VISTA/CARLSBAJll L~rrAS/ENA have to further approval of such actions under this Agreement. In addition to any injunctive relief, any Owner may seek consequential damages. In any such action, the prevailing party shall be entitled to attorney's fees and costs. Section4 ACQUISITION OF ADDITIONAL CAPACITY In the event any Owner requires capacity in the West Influent Pipeline in excess of the proportionate capacity allowed under this Agreement, and the West Influent Pipeline is not being used by the other Owners to the full percentage of the total capacity to which they are entitled, the Owner requiring additional capacity may license, lease, or purchase such additional capacity from the other parties. Such license, lease, or purchase shall be accomplished by written agreement, a copy of which shall be provided to each Owner, and Exhibit B will be deemed amended to conform to the new percentages. The value of the West Influent Pipeline as of April 2011 is $678,395. The replacement value of the West Influent Pipeline shall be calculated by multiplying the value as of April 2011, by the percentage change in the Engineering News Record Construction Cost Index for Los Angeles (ENRLA) for each calendar year starting with 2012, then adding the resulting products to the original value of the subject facility. SectionS RESPONSIBILTY OF LEAD AGENCY Carlsbad shall be the Lead Agency with maintenance responsibility for the West Influent Pipeline, unless agreed upon otherwise by a separate Project Agreement. The Owners shall mutually agree on all recommendations for improvements and enlargements to the West Influent Pipeline; however, a separate Project Agreement shall be prepared and executed by the Owners for all future improvements and enlargements to the West Influent Pipeline and to determine the Lead Agency for that project. Section& IMPROVEMENTS OR ENLARGEMENTS OF THE WEST INFLUENT PIPEUNE 6.1 As deemed necessary, the Owners shall meet to discuss future improvements or enlargements of the West Influent Pipeline. Once it is agreed between the Owners that an improvement or enlargement is necessary, planning and design work for the improvement or enlargement of the West Influent Pipeline shall be prepared. Upon completion and acceptance by the Owners of the planning and design work schematically detailing an improvement or enlargement, a Lead Agency will be designated that will prepare a Project Agreement which will identify the project specific requirements of each Owner including the cost sharing for design and construction. 6.2 When the Project Agreement has been accepted by the legislative body of each Owner, the Lead Agency under the Project Agreement shall engage the services of a consultant or consultants to prepare plans, specifications, and related materials necessary for the acquisition and construction of the improvements or enlargements. The specifications shall contain all appropriate hold harmless clauses, insurance requirements, and indemnifications for those agencies involved in the project. 6.3 Upon completion of the plans, specifications, and related materials, their approval by the other Owners, the acquisition of necessary lands and right-of-way, and at such time as the Owners are prepared to finance their proportionate shares of the acquisition and construction cost, including determining any maximum funding commitments, the Lead Agency \NEST INFLU811T PIP8..1NEAGREEMENT -•rtluen! ptpellr. agreeiT'8nlfinllllllt'!!i0"(11-4-141 CI:ICX Page 3 VISTAICARLSBAil' LV\0'8\0NITAS/EWA B under the Project Agreement shall advertise for bids for the construction of the improvements or enlargements or such portion thereof as may be hereafter agreed to by the Owners. The decision to accept bids and award the construction contract shall be the sole responsibility of the Lead Agency. The Lead Agency shall cause the work to be inspected, administer the execution of the contract, and approve necessary change orders. All records for improvements or enlargements shall be permanently retained. Section 7 COST SHARING OF IMPROVEMENTS OR ENLARGEMENTS All improvement or enlargement costs of the West Influent Pipeline shall be borne and paid by the Owners in proportion to each Owner's Ownership Interest or as otherwise provided in the Project Agreement Should the percentage of capacity to be owned after improvements are constructed vary from Exhibit B, then Exhibit B shall be amended accordingly upon completion of construction. SectionS OPERATIONS, MAINTENANCE, AND ACCESS 8.1 Carlsbad shall be the Lead Agency for the operation and maintenance of the West Influent Pipeline and shall maintain it in good repair and working order in accordance with recognized sound engineering practice. Carlsbad shall maintain accurate records and accounts in connection with the operation and maintenance of the West Influent Pipeline for a minimum period of five years. These records and accounts shall be available for inspection by any other Party upon written request. 8.2 Operation and maintenance of the West Influent Pipeline shall include the labor, equipment, and materials required for daily operation and routine maintenance. Routine maintenance activities typically include annual visual inspections of the confluence junction structure, clearing around the structure, and replacement of corroded or damaged confluence junction structure appurtenances. Cleaning and CCTV inspections of the West Influent Pipeline will be performed at least every five years or as necessary to maintain the intended function of the West Influent Pipeline. 8.3 EWA shall provide the Owners with access and any other cooperation reasonably necessary for the operation, maintenance, improvement and/or enlargement of the West Influent Pipeline in accordance with the terms of this Agreement Section 9 BUDGETING AND ACCOUNTING FOR OPERATION AND MAINTENANCE 9.1 The Owners shall share ln the operation and maintenance expenses of the West Influent Pipeline in proportion to their respective Ownership Interests. Special inspections and cleaning not included as part of routine maintenance will be performed as necessary by Carlsbad or a quafitied contractor, as agreed by all Owners, and invoiced to each Owner on a time and materials basis in proportion to each Owner's Ownership Interest Section 10 EMERGENCY REPAIRS OR RECONSTRUCTION 10.1 Carlsbad shall be allowed to perform emergency repairs or reconstruction of the West Influent Pipe&ne, in whole or in part, without prior approval from the other Owners, as necessary to maintain the continuous operation of the system such that the need for repair or WEST lNFLU~T PIPaiNEAGREEMENT west1nlluont ppekno "!!re1J111Bit finlll IOQOn { 1 !o4 14) dcca Page4 VISTA/CARLSBAO' LIM:VEI\CINITAS/8NA reconstruction is necessary to prevent property damage or Imminent danger to health and safety. 10.2 The Owners shall each pay all cost of emergency repair or reconstruction of the West Influent Pipeline, or portion thereof, in proportion to their Ownership Interests. Section 11 BUDGETINGANDACCOUNTING 11.1 Each Owner shall be strictly accountable for all funds received and shall maintain adequate records of all receipts and disbursements pursuant to this Agreement. In addition, each Owner shall maintain such additional records relating to the acquisition, construction, ownership, maintenance, operation, and use of the West Influent Pipeline as is appropriate. Each of the Owners, with reasonable notice, has the right to inspect and examine the records of the other Owner insofar as such records relate to the West Influent Pipeflne. 11.2 Each Owner shall maintain all records relating to the West Influent Pipeline for a minimum of five years, except records for improvements or enlargements. Records for improvements or enlargements shall be kept permanently. Section 12 INSURANCE Each Owner shall maintain for the duration of the Agreement, and any and all amendments, liability insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services of each Owner, their agents, representatives, employees, or subcontractors. Each Party shall maintain workers' compensation coverage and limits as required by the California Labor Code. Section 13 WASTEWATER SPILLS 13.1 In the event of a wastewater spill from the West Influent Pipeline that occurs as a result of an unforeseen condition, where such wastewater spill could not have been prevented with normal and routine maintenance, then each Owner shall be responsible for the costs for cleanup and payment of any legal fines and expenses incurred in proportion to each Owner's Ownership Interest in the West Influent Pipeline. 13.2 An Owner, which by its sole negligence or willful misconduct, causes a wastewater spill shall be solely responsible for au costs for cleanup and payment of any legal fines and expenses incurred. Section 14 APPORTIONMENT OF LIABILITY 14.1 Any liability incurred by the Owners, which liability arises out of or in connection with the construction, operation, or maintenance of the West Influent Pipeline, shall be discharged by payment by each Owner in proportion to its Ownership Interest 14.2. Notwithstanding the provisions of Government Code Section 895.2, Owners shall, to the fullest extent allowed by law, indemnify, defend, and hold EWA and the member agencies of EWA which have no ownership interest in the West Influent Pipeline, their officers, directors, agents, and employees harmless from any and all claims, demands, liens, actions, liabilities, costs, and expenses, including attorney's fees, based upon or arising out of, or WEST INFLUENT PIPS.INE AGREEMENT PageS -·nllcBll !Jpf!line ag,..,.,nl fina 18"SIOn( 1 1-4-14) docx VISTA/CARLSBAD' LIMl'EI'CINITAS/EWA tO claimed to have arisen out of, any act or omission by EWA related to this Agreement, other than actual intentional or willful misconduct of an EWA employee, officer, or agent. 14.3. Owners also agree to hold harmless and defend such agencies and EWA, their directors, officers, agents, and employees with respect to claims or legal proceedings or judgments made, filed, or presented against the foregoing, by reason of Owners', or their officers', agents', or employees' negligence, intentional or willful misconduct regarding the West Influent Pipeline during the term of this Agreement. Section 15 NOTICE Any notice or demand which may or must be given or made by a Party under the terms of this Agreement or any statute or ordinance shall be in writing; and shall be deemed received on: (a) the day of delivery if delivered by hand (including overnight courier service) during receiving Party's regular business hours or by facsimile before or during receiving Party's regular business hours; or (b) the day of delivery shown on a return receipt for registered or certified United States mail. Section 16 SETTLEMENT OF DISPUTES OR CONTROVERSIES Should any dispute or controversy arise in connection with this Agreement or in connection with the acquisition, construction, maintenance, operation, repair, reconstruction. or enlargement of the West Influent Pipeline or in connection with any of the affairs or operation thereof, or the execution of the term of this Agreement, the Parties shall make reasonable efforts to resolve the dispute. In the event that the Parties are unable to reach a resolution to the dispute and prior to initiating any legal action, the Parties shall select a neutral mediator to assist in the resolution of the dispute. Each Party shall share equally in the cost of the mediator. Section 17 MODIFICATION OF AGREEMENT This Agreement shall contain all of the terms and conditions made between the Parties hereto and shall not be amended except by an agreement in writing signed by all Parties. Section 18 SEVERABILITY If any section, subsection, sentence, clause, phrase, or word of this Agreement, or the application thereof, to any Party, to any other person or circumstance is for any reason held invalid, it shall be deemed severable and the validity of the remainder of the Agreement or the application of such provision to the other Parties, or to any other person or 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 word thereof irrespective of the fact that one or more section, subsection, sentence, clause. phrase, or word, or the application thereof to any Party or any other person or circumstance be held invalid. Section 18 COUNTERPARTS AND EXHIBITS This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. All documents referenced as exhibits in this Agreement are hereby incorporated In this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any exhibit,_ the provisions of this Agreement shall prevail. WEST INFLUENT PIPB.INEAGREEMENT Page6 MStonlluent ppelire agreemenlfinat ,.,soon(11.4.14) <tx:x VISTAICARI..SBAOI L\IIO'BI.CINrTASIBNA \ } .. Section 19 TERM The initial Termination Date of this Agreement will be 20 years from the date first above written. This Agreement shall automatically renew as provided below unless a Party gives written notice of non-renewal at least 12 calendar months prior to the initial Termination Date or any succeeding Termination Date. Unless such notice of non-renewal is timely given, this Agreement shall automatically renew for an additional 10 years, and a new Termination Date shall be accordingly established. IN WITNESS WHEREOF, each Party has, pursuant to resolution duly passed and adopted by its respective goverring body, approved this Agreement and caused it to be executed and be effective as of the date first above written. CITY OF VJST A, a chartered municipal corporation ..... By:~ J~- ATTEST: Marci Killian, City Clerk By: ~u:~tu--J APPROVED AS TO FORM: Darold P~ieper . · Alto . -- By: __________________ ~~---.~r------------ liP PROVED Oarold Piepef t704 1112\4 CITY OF ENCINIT /IS, a general law city By: __ ~~~~~~~---------KRISTIN GASPAR, Mayor ATTEST: Kathy Hollywood, City Clerk By: ________________________ __ APPROVED AS TO FORM Glenn Sabine, City Attomey By: ___________________________________ __ IJIJEST NFLUENT PIPaiNEAGREEMENT -u1'1u!J1t plM!h"'ll a;veeiTIIIrt Anal ~on( 1 1-4-141 docK CITY OF CARLSBAD, a chartered municipal corporation By;~~~~~k~'------MA TT HALL, Mayor ATTEST: ~ ~C~k -By:~ t~ ~~~OJJJ\tv:: APPROVED AS TO RM. Celia A Brewer, City Attorney By. ,(2,.0. A_ ~ LEUCADIA WASTEWATER DISTRICT, a county sanitation district By: __ ~-=-----=~------------DAVID KULCHIN. President ATTEST: Paul J. Bushee, Secretary By: ------------------------------ APPROVED AS TO FORM: Wayne Brechtel, District Counsel By. _____________________ ___ Page7 VISTA/CARLSBAD' LV\O'El'ONITAS/EWA ENCINA WASTEWATER AUTHORITY By:------------- ATTEST: By: ____________________ ___ APPROVED AS TO FORM: Gregory Moser, General Counsel By. _____________ _ \/VEST NFI..USIIT PIPa.INEAGREEMENT -inllutrll ppdi,. iQflBillllt ftnil \OI'lllan (11-4-14) cb:x PageS VISTA/CARLSBAD' Ll.t'I.IO'eONITAS/6/VA