HomeMy WebLinkAbout1981-11-03; City Council; 6799; Buena Sanitation District sewage capacity leaseCITQ>F CARLSBAD - AGEND^ILL LErirant
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TITLE:
APPROVAL OF LEASE AGREEMENT -
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SANITATION DISTRICT
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RECOMMENDED ACTION:
Adopt Resolution No. (/ *} / / Approving an Agreement between the City of
Carlsbad and the Buena Sanitation District for Lease of Capacity in the
Encina Outfall.
ITEM EXPLANATION:
In 1966 the city of Carlsbad and the Buena Sanitation District entered
into an agreement for the lease by Carlsbad of Capacity in the District's
Encina Outfall. The outfall was designed to carry raw sewage from the Buena
service area east of Carlsbad, as well as serve certain areas in Carlsbad
along Palomar Airport Road. The agreement describes the area and populations
in Carlsbad to be served by the Encina Outfall. Area A is primarily north of
Palomar Airport Road and east of El Camino Real. Area B lies north and south
Palomar Airport Road and west of El Camino Real. Using the design populations,
per capita contribution to the sewer, design peaking factors and infiltration
_allowance, Areas A and B should require a maximum (peaking) capacity of
2.45 million gallons a day (mgd). The Buena/Carlsbad Agreement assigns cap-
acities from 1.2 mgd to 3.0 mgd to Carlsbad. Unfortunately, the agreement
refers to "average" daily flow rather than "peak" flows. This "error" has
been an irritation to the County ever since the Agreement was approved. The
City, however, has had no motivation for agreeing to a revision.
Now, the Carlsbad Research Center is ready to submit a final subdivision map.
Unfortunately, the development is not in areas A and B and no other sewage
transmission lines presently exist to provide service. The ultimate solution
is the City's participation in the construction of the San Marcos Land Outfall
which will serve the entire Palomar Sewer Service Area. That line will
probably not be complete for at least 18 months. In the meantime, it would
be advantageous to the City to provide temporary service to the Research
Center through the Encina Outfall. The County has agreed to revise the exist-
ing agreement to delete the reference to Areas A and B. The City could then
use its capacity however it wanted. In exchange, the County would like the
City to delete the reference to "average" flows and instead refer to "peak"
flows.
FISCAL IMPACT
Revising the agreement to reflect "peak" flows rather than "average" flows
can be said, subject to litigation, to have given the City twice the capacity
it paid for. This correction will have no fiscal impact because we "paid" for
peak capacity and this correction will remove any questions.
EXHIBITS
A. Map to Areas A and B
B. Letter from San Diego County describing the error in the present agreement.
C. Resolution No. ^> 7/*7 Approving an Agreement between the City of Carlsbad
and the Buena Sanitation District for Lease of Capacity in the Encina Outfall,
D. Proposed Agreement.
.R. J. MASSMAN, Director
Offices of:
County Engineer
County Road Commissioner
County Surveyor
County Airports '
Flood Control
Liquid Waste
Solid Waste
Transportation Operations
COUNTY OF SAN DIEGO
DEPARTMENT OF PUBLIC WORKS
BUILDING 2 5555 OVERLAND AVENUE
SAN DIEGO. CALIFORNIA 92123
TELEPHONE: (714) 565-5177
September 29, 1981
BOARD OF SUPERVISORS
TOM HAMILTONFirst District
PAUL W. FORDEMSecond District
ROGER HEDGECOCKThird District
JIM BATESFourth District
PAUL ECKERTFifth District
City of Carlsbad
1200 Elm Avenue
Carlsbad, CA 92008
Attn: Les Evans
Dear Mr. Evans:
SUBJECT: Buena-Carlsbad Lease Agreement
1981
CiTY OF CARLSBAD
Engineering Department
The enclosed report shows that the intent of the agreement was to lease capacity
in terms of peak flow. This is verified in two ways: 1) By calculating the
'capacity required to serve areas A 5 B using the population given in the second
supplement to the basic agreement between Carlsbad and Vista; and 2) By using
the total cost of the outfall and computing Carlsbad's share. Both of these
values are approximately equal to the values given in Sections 2 and 3 of the
agreement-. We believe this to be sufficient justification to revise the agree-
ment, Section 4 to reflect peak flows.
Buena has joined contractually with Vista in the preparation of a capacity study
for the Vista and Beuna service areas. The study includes a portion of Area A
that is in Vista. We assume that the capacity allocated in the outfall for this
area will be transferred from Carlsbad to Vista in accordance with the agreement.
The study is scheduled for completion in December 1981. This will provide de-
tailed capacity data to evaluate the Encina Outfall requirements.
In response to your request for a Temporary Connection of 86 acres (Carlsbad Re-
search Center CT-81-10), we need to know the complete sewerage plan for all phases
of the proposed development before we can consider the proposed project. In addi-
tion, the proposal is in conflict with Section 4 of the basic agreement in that
sewage is being pumped from one drainage basin to another. It appears that appro-
val from all the member agencies will be required.
EXHIBIT B
City of Carlsbad - 2 - September 29, 1981
If you have additional questions, please call Don Hatfield at 565-5847.
Very truly yours,
^ ?Vr ^J :
SMANTTJire. MASSMANTHJirector
Apartment of Public Works
RJM:DH:tly
Enclosure: Report of Encina Outfall Agreement Review
Exhibit E
cc: City of Vista (w/o encl.)
Box 188
Vista, CA 92083
9/29/81
ENCINA OUTFALL AGREEMENT REVIEW
This report was prepared to provide the rationale and calculations required
to negotiate a revision to County Contract 3405-2103-R; "AGREEMENT BETWEEN THE
BUENA SANITATION DISTRICT AND THE CITY OF CARLSBAD FOR THE LEASE BY CARLSBAD
OF CAPACITY IN THE ENCINA OUTFALL OF THE. BUENA SANITATION DISTRICT."
The agreement was executed in 1966. In 1972 a serious misunderstanding in the.
terms of the agreement became apparent. Several attempts to resolve the pro-
blem have been unsuccessful. It is imperative that the agreement be revised
to reflect the understood intent of the agreement when it was prepared before
additional connections can be allowed. The basic issue is whether the original
intent of the agreement was to lease capacity to Carlsbad in terms of peak
million gallons per day (mgd) or average mgd. Once this is resolved, other terms
and conditions of the agreement will require revision.
The report considered the agreements, past correspondence and engineering cal-
culations contained in the files.
Two agreements are involved in leasing capacity to Carlsbad. The Second Supple-
ment to the Basic Agreement between Vis.ta and Carlsbad for the Acquisition and
Construction of the Joint System know as Encina System (Vista/Carlsbad Agreement),
and the Agreement between Carlsbad and Buena for the Lease of Capacity in the
Encina Outfall (Buena/Carlsbad Agreement).
The Vista/Carlsbad Agreement, among other terms, provides for Buena to become a
member agency in the joint system and describes the area and populations in Carls-
bad to be served by the Encina Outfall as follows:
- 2 -
Buena Service Area: Population 39,000
Area A, Exhibit E: " 5,000
Area B, Exhibit E; " 9,000
The source of these populations was the Rawn Report of 1960. The records show
4 *
that the following engineering parameters were used to estimate flows as follows:
80 gallons per day per person
1.75 peaking factor (See Appendix I)
25% allowance for infiltration
Using these values, we find that Areas A § B (Exhibit E attached) require a maximum
capacity of 2.45 mgd peak flow and Buena requires 6.17 mgd peak flow capacity.
Therefore, the Buena/Carlsbad agreement assigned capacities to Carlsbad from 1.2
mgd to 3 mgd maximum, leaving 6.2 mgd for Buena,- (See Table I). Table II shows the
calculated flow requirement for specific sections of the outfall. These values
are the capacities given in the agreement.
These calculations show conclusively that the intent of the agreement was to use
peak flows to lease capacity to Carlsbad. If the stated flows were considered
average, Carlsbad would have purchased over twice as much capacity as it requires.
(See Table I).
Appendix II (a partial copy of the bid schedule) shows the total cost of the En-
cina Outfall, Schedule 1A to be $346,427.74. The records show that an 80% fi-
nancing cost was used giving a total cost of $623,569,93. The records do not
show the precise calculations used to determine Carlsbad's share as it. appears
in the agreement. However, the following calculations show a definite correla-
tion with Carlsbad's cost noted in the agreement indicating Carlsbad has been
paying based on peak flow.
$623,569.93 X 26.41% (average ownership for total gravity Outfall) equals
$164,684.81 as compared with $159,600 stated in the agreement.
/IP
- 3 -
If the capacity value stated in "the agreement is considered average flow, this
cost would be more than twice the above amount.
*
In addition to the above calculations that show that peak flows were stated in
the agreement, it is standard engineering practice to compute pipe capacity in
peak flow and not average flow. The words of Section 4 in the agreement do
not agree with the Lease table in Section 2 or the Payment Schedule in Section 3
and therefore must be changed to reflect peak values.
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 L day of
1981, 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. The City of Carlsbad and Buena Sanitation District entered
into an Agreement for the lease of capacity in a land sewage outfall on
June 30, 1966.
2. Now Buena and Carlsbad desire to rescind that Agreement and
replace it by a new Agreement.
NOW THEREFORE, the parties hereto agree as follows:
Section 1. EFFECTIVE DATE: This Agreement shall take effect
Section 2. LEASE OF CAPACITY: Buena agrees to lease to Carlsbad
the following listed percentages of capacity in the Encina Outfall:
STATION TO STATION* % OF TOTAL LINE CAPACITY AMOUNT
0 + 00 20 + 81.43 34.88 $ 48,625
20 + 81.43 33 + 36.43 31.71 14,280
33 + 36.43 42 + 28.18 28.21 10,070
42 + 28.18 67 + 42.43 28.21 20,900
67 + 42.43 87 + 57.43 21.13 11,735
87 + 57.43 190 + 93.29 18.84 45,950
190 + 93.29 204 + 08.65 17.65 5,630
204 + 08.65 209 + 56.94 17.65 2,410
Total $159,600
*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 Department of Public Works of the County of San
San Diego, 5555 Overland Avenue, Building 1, San Diego, California, a copy
of which has been furnished to Carlsbad.
Section 3. TERMS OF LEASE
1. Buena shall lease to Carlsbad for a period commencing the
effective date of this agreement and ending on or before July 1, 1996, the
percentages of capacity listed in Section 2 herein, said lease to be upon
the following terms and conditions:
(a) The total rental sum shall be $159,600 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, beginning July 1, 1982, and payable
each July 1 thereafter until fully paid.
(b) Options are hereby granted by Buena to Carlsbad to purchase
the capacity which is the subject of this lease. These
options may be exercised provided lesee is not in default
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 Buena 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 Buena.
Title to the capacity shall vest in Carlsbad upon delivery to Buena 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
Agreement will remain in Buena.
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) days after receipt of written notice from Buena to do so and
to make prompt 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
Enc ina Out fall.
Section 3. ENGINEER'S APPROVAL: The location, installation,
construction, repair (except emergency repairs) replacement and/or
reconstruction of the connections to the Encina Outfall shall be according
to plans and specifications first approved by Buena's engineer.
Section 6. 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 7. METERING: Carlsbad 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 Sewage 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 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 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
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 10. 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 8 of this Agreement, shall be charged
against Carlsbad's capacity rights in and to the Encina Treatment Plant
and Ocean Outfall.
Section 11. 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 12, the cost of all repairs shall
be part of the maintenance costs of the Encina Outfall.
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 pay 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 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 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 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 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 b'oard 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, 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.
Sect ion 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 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 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 - INSURANCE: To the extent it may legally do
so, Carlsbad shall defend and save and hold free and harmless Buena and its
agents, officers and employees from any claims, liabilities, penalties or
. fines for injury to or damage to any person or property or for the death of
any person arising from or out of any act or omission of Carlsbad, its
agents, officers, employees or contractors, arising from or out of any
defects in the installation, construction, operation, maintenance, repair,
replacement or reconstruction of said sewer connections or appurtenances.
Pursuant thereto Carlsbad shall take out and maintain public liability
insurance with an insurance carrier authorized to do business in the State
of California to protect against loss from liability imposed by law for
damages on account of bodily injury, including death resulting therefrom
suffered or alleged to be suffered by any person or persons whatsoever
resulting directly or indirectly from any act or activities of Carlsbad or
. any person acting for Carlsbad or under Carlsbad's control or direction,
and also to protect against any loss from liability imposed by law for
damages to any property of any person caused directly or indirectly by or
from acts or activities ,of Carlsbad or any person acting for Carlsbad or
under Carlsbad's control or direction. Such public liability and property
9
/•N
^^° - •--•. >s**'
damage insurance shall be maintained in full force and effect during the
entire term of this lease in the amounts of not less than $500,000 for one
person injured in one accident and not less than $1,000,000 for more than
one person injured in one accident and in the amount of not less than
$250,000 with respect to any property damage aforesaid. Said insurance
shall be in form satisfactory to the County Counsel of San Diego County.
The insurance policies shall have a non-cance1lation-without-ten (10)-day-
notice-to-Buena clause and shall provide that copies of all cancellation
notices shall be sent to Buena. If Carlsbad does not keep such insurance
in full force and effect, Buena may take out the necessary insurance and
pay the premium; and such amounts so paid by Buena shall become a charge
against Carlsbad.
Section 18. TIME OF ESSENCE: Time is of the essence of this
areement.
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.
10
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
By
Chairman, Board of Directors
CITY OF CARLSBAD
By
Mayor
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RESOLUTION NO. 6717
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING AN AGREEMENT 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
as follows:
1. That an agreement between the City of Carlsbad and the Buena Sanitation
District for lease of capacity in the Encina Outfall, a copy of which is attached
hereto and made a part hereof, is hereby approved.
2. That the Mayor of the City of Carlsbad is hereby authorized and
directed to execute said agreement for and on behalf of the City of Carlsbad.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City
Council held on the 3rd day of November' , 1981, by the following vote,
to wit:
AYES: Council Members Packard, CAsler, Anear, Lewis and Kulchin.
NOES: None
ABSENT: None
RONALD C. PACKARD, Mayor
ATTEST:
THA L. RAUTENKRANZ, City
(SEAL)
c s*\
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 day of
1981, by and between BUENA SANITATION DISTRICT, a county sanitation
•district, formed and existing under the County Sanitation District Act
' XSection 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 Carlsbad and Buena Sanitation District entered
/
into an Agreement for the lease of capacity in a land sewage outfall on
June 30, 1966.
2. Now Buena and Carlsbad desire to rescind that Agreement and
replace it by a new Agreement.
NOW THEREFORE, the parties hereto agree as follows:
Section 1. EFFECTIVE DATE: This Agreement shall take effect
Section 2. LEASE OF CAPACITY: Buena agrees to lease to Carlsbad
the following listed percentages of capacity in the Encina Outfall:
c
STATION TO STATION* % OF TOTAL LINE CAPACITY AMOUNT
0+00 20 + 81.43 34.88 $ 48,625
20 + 81.43 33 + 36.43 31.71 • 14,280
33 + 36.43 42 + 28.18 28.21 10,070
42 + 28.18 67 + 42.43 28.21 20,900
67 + 42.43 87 + 57.43 21.13 11,735
87 + 57,43 190 + 93.29 • 18.84 45,950
190 + 93.29 204 + 08.65 17.65 5,630
204 + 08.65 209 + 56.94 17.65 2,410
. . . Total $159,600
*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 Department of Public Works of the County of San
San Diego, 5555 Overland Avenue, Building 1, San Di.ego, California, a copy
of which has been furnished to Carlsbad. .
Section 3. TERMS OF LEASE
1. Buena shall lease to Carlsbad for a period commencing the
effective date of this agreement and ending on or before July 1, 1996, the
percentages of capacity listed in Section 2 herein, said lease to be upon
the following terms and conditions:
(a) The total rental sum shall be $159,600 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, beginning July 1, 1982, and payable
each July 1 thereafter until fully paid.
(b) Options are hereby granted by Buena to Carlsbad to purchase
the capacity which is the subject of this lease. These
options may be exercised prov'ided lesee is not in default
c
of lease payments at the time lessee exercises the option to
— - ... purchase. The opti~on purchase price shall be the sum of
$159,600 less the amount of rental already paid to Buena 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 Buena.
Title to the capacity shall vest in Carlsbad upon delivery to Buena 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
Agreement will remain in Buena.
3. Carlsba'd shall not lose its right to exercise said option upon
termination of the lease period, unless Carlsbad faj-ls to exercise the same
within ten (10) days after receipt of written notice from Buena to do so and
to make prompt 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 togethe.r with any necessary appurtenances to the
Encina Outfall.
w
Section 3. ENGINEER'S APPROVAL: The location, installation,
construction, repair (except emergency repairs) replacement and/or
reconstruction of the connections to the Encina Outfall shall be according
to plans and specifications first approved by Buena's engineer.
Section 6. 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.
Sec t ion 7. METERING: Carlsbad shall provide a device to meter the
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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 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
thevtotal 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 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
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.
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3. Buena shall keep accurate records of its cost of maintaining and
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operating the Encina Outfall and such records shall' be open to inspection
by Carlsbad at all reasonable times.
Section 10. 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 8 of this Agreement, shall be charged
against Carlsbad's capacity rights in and to the Encina Treatment Plant
and Ocean Outfall. .
Section 11 . 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 12, the cost of all repairs shall
be part of the maintenance costs of the Encina Outfall.
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 pay 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 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 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 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 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 th.e 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.
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 any action or inaction of Carlsbaqd
or of its officers, agents or employees in connection therewith.
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And except as provided in Section 16 nothing herein contained shall
operate to relieve Buena of any liability for damages to persons or
property arising from or out of the installation, 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
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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. 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.
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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
Chairman, Board of Directors
CITY OF CARLSBAD
Mayor
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