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HomeMy WebLinkAbout2005-06-14; City Council; 18161; Revisions to Expense Allocations in the MOU4B# 18,161 WTG. 6/14/05 DEPT. PWO&M CITY OF CARLSBAD - AGENDA BILL TITLE: REVISIONS TO EXPENSE ALLOCATIONS IN THE MOU FOR THE OPERATION AND MAINTENANCE OF BUENA VISTA PUMP STATION AND AGUA HEDIONDA PUMP STATION ~ CITY ATTY. ‘& iClTY MGR. w RECOMMENDED ACTION: Adopt Resolution No. authorizing the PW Director (or the Director’s designee) to revise the allocation of expenses as described in the Memorandum of Understandinq for the Operation and Maintenance of Buena Vista Pump Station and Aaua Hedionda Pump Station. The revisions are to be made to agree with the ownership percentages as described in the Agreement for Ownership. Operation, and Maintenance of the VistdCarlsbad Interceptor Sewer. 2005-184 ITEM EXPLANATION: On January 26, 1998, the City of Carlsbad, the City of Vista, and the Encina Wastewater Authority (EWA) entered into a Memorandum of Understandinq for the Operation and Maintenance of Buena Vista Pump Station and Aqua Hedionda Pump Station (MOU) for the Operation and Maintenance of the Agua Hedionda and Buena Vista Pump Stations. Carlsbad and Vista jointly own the Buena Vista and Agua Hedionda pump stations. Section 12.1.2 of the Revised Basic Agreement provides that EWA shall operate and maintain, at the expense of Vista and Carlsbad, the Pump Stations, within an annual estimated budget prepared by EWA and approved by Vista and Carlsbad. The O&M expenses for those pump stations were invoiced to each city, based on the percentages identified in this MOU. In February of 2002, the City of Carlsbad and the City of Vista entered into an Aqreement for Ownership, Operation, and Maintenance of the Vista/Carlsbad Interceptor Sewer. Exhibit “B” of that agreement revised the ownership percentages of the interceptor and both the Agua Hedionda and the Buena Vista Pump Stations. As a result of these changes in the ownership percentages of the two pump stations, staff of both the City of Carlsbad and the City of Vista need to notify Encina’s General Manager in order for EWA to correctly budget and invoice Carlsbad and Vista for the O&M costs for each pump station, in accordance with the revised percentages. ENVIRONMENTAL REVIEW: This is a revision to an existing Memorandum of Understanding for continuing operation of two existing pump stations. There is no expansion proposed by the amendment to the MOU so the action is categorically exempt under Class I for existing facilities pursuant to CEQA guidelines Section 15301. The Planning Director will file a Notice of Determination to that effect. FISCAL IMPACT: As a result of the revisions to the ownership percentages of these pump stations, Carlsbad’s share of the O&M costs will be reduced by 5.1% for the Buena Vista Pump Station and will also be reduced by 7.6% for the Agua Hedionda Pump Station. Therefore, Carlsbad will realize an approximate $7,500 reduction in total operational costs in the proposed FY 2005-06 EWA Operations Budget for these two pump stations. Page 2 of Agenda Bill No. 18,161 EXHIBITS: 1. Resolution No. 2005-1 84 authorizing the PW Director (or the Director’s designee) to revise the allocation of expenses as described in the Memorandum of Understandinq for the Operation and Maintenance of Buena Vista Pump Station and Aqua Hedionda Pump Station. The revisions are to be made to agree with the ownership percentages as described in the Aqreement for Ownership, Operation, and Maintenance of the VistdCarlsbad Interceptor Sewer. 2. Memorandum of Understanding for Operation and Maintenance of Agua Hedionda Pump Station and Buena Vista Pump Station. 3. Agreement for Ownership, Operation, and Maintenance of the VistdCarlsbad interceptor Sewer. DEPARTMENT CONTACT: Bob Greaney, (760) 438-2722, bqrea8ci.carlsbad.ca.us d 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2005-1 84 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, REVISING THE EXPENSE ALLOCATIONS IN THE MOU FOR THE OPERATION AND MAINTENANCE OF BUENA VISTA PUMP STATION AND AGUA HEDIONDA PUMP STATION. WHEREAS, on January 26, 1998, the City of Carlsbad, the City of Vista, and the Encina Wastewater Authority (EWA) entered into a Memorandum of Understanding for the 3peration and Maintenance of Buena Vista Pump Station and Agua Hedionda Pump Station (MOU) for the Operation and Maintenance of the Agua Hedionda and Buena Vista Pump Stations; and WHEREAS, Carlsbad and Vista jointly own the Buena Vista and Agua Hedionda Pump Stations; and WHEREAS, the operation and maintenance expenses for those pump stations were nvoiced to each city, based on the percentages identified in this MOU. WHEREAS, in February of 2002, the City of Carlsbad and the City of Vista entered into an agreement for Ownership, Operation, and Maintenance of the VistdCarlsbad Interceptor Sewer. Exhibit “6” of that agreement revised the ownership percentages of the interceptor and both the 4gua Hedionda and the Buena Vista Pump Stations; and WHEREAS, as a result of these changes in the ownership percentages of the two pump stations, staff of both the City of Carlsbad and the City of Vista need to notify Encina’s General Manager in order for EWA to correctly budget and invoice Carlsbad and Vista for the operation 3nd maintenance costs for each pump station, in accordance with the revised percentages. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, Salifornia, as follows: 1. That the above recitations are true and correct. 71 71 71 71 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. That the City Council authorizes the Public Works Director (or the Director's lesignee) to revise the percentage of expense allocations of the Agua Hedionda and Buena Vista 'ump Stations as described in the Memorandum of Understanding for the Operation and Maintenance of Buena Vista Pump Station and Agua Hedionda Pump Station to agree with the iwnership percentages as described in the Agreement for Ownership, Operation, and Maintenance of the VistdCarlsbad Interceptor Sewer. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council , 2005 by the following vote, to wit: JUNE ield on the 14th day of AYES: Council Members Hall, Packard, Sigafoose NOES: None ABSENT: Council Members Lewis, Kulchin Mayor Pro Tern Matt Hall ATTEST (SEAL) 3 1 MEMORANDU?4 OF UNDERSTANDING FOR OPERATION AND MAINTENANCE OF BUENA VISTA PUMP STATION AND AGUA HEDfONDA PUMP STATION This Memorandum of Understanding is entered into as of January 26, 1998 by and between the Cities of CARLSBAD and Vista, hereinafter referred to as CARLSBAD and VISTA and the Encina Wastewater Authority, hereinafter referred to as EWA, with respect to the following facts: RECITALS 1. CARLSBAD and VISTA jointly own the Buena Vista and-Agua Hedionda pump stations , including the forcemains associated with such stations, their valves and appurtenances, and certain gravity sewer lines, identified in Exhibit 1, hereto.: For the purposes of this Memorandum, the pump stations and the related . facilities located inside of the-fencing wrrounding the Buena . Vista and Agua Hedionda pump stations, as shown on Exhibit 1, shall be collectively referred to as the 'IPump Stations.I1 that EWA shall operate and maintain, at the expense of VISTA and CARLSBAD, the Pump Stations (formerly referred to aS Units B and G of the Joint System), within an annual estimated budget prepared.by EWA and approved by VISTA and CARLSBAD. 2. Section 12.1.2 of the Revised Basic Agreement provides ' 3. EWA is currently operating the Pump Stations to.the satisfaction of CARLSBAD and VISTA. 4. CARLSBAD and VISTA desire EWA to continue to operate and maintain the Pump Stations, and PWA is willing to provide such services, subject to written terms and conditions. NOW, THEREFORE, in consideration of the mutual promises, obligations and covenants set forth herein, CARLSBAD, VISTA and EWA agree: ARTICLE I: SCOPE OF WORK Specific services to be provided by EWA hereunder are detailed in Exhibit 2, Scope of Work for Annual Operation and Maintenance (Om) Services. In the event of any conflict between the provisions of Exhibit 2 and this Memorandum, the terms of the Memorandum will govern. In performing these services, EWA shall follow practices consistent with generally accepted technical standards and EWA represents that its staff are skilled in the expertise necessary to provide these services. 5 2 ARTICLE .IX : BUDGETING CARLSBAD and VISTA shall compensate EWA for all expenses associated with the operation and maintenance of the Pump Stations, in accordance with annual budgets to be developed and recommended by EWA and adopted by CARLSBAD and VISTA. expenses shall include but not be limited to such things as salaries and benefits, maintenance costs, utilities, chemicals, permits, monitoring, accounting and au'diting costs, administration costs, legal services, overhead costs, and insurance. These The Pump Stations' budgets shall be assessed on a fiscal year beginning July 1 and extending through June 30 of the following year and shall be prepared in accordance with generally accepted accounting principles, as follows: operating budgets for EWA, but no later than May 1 of each year, EWA shall prepare estimated budgets for the amount of money required to operate and maintain the Pump Stations. The operating budgets shall be separate for (a) the Buena Vista Pump Station, (b) the Agua Hedionda Pump Station. The budgets shall also include not less than a $50,000 emergency contingency reserve for each Pump Station, to be increased from year to year as necessary. Additionally the budgets shall include the total dollar amount of the operating reserve to be held by EWA; this amount will generally equal ten percent of the annual operating budget, calculated based on the total budgeted amounts, excluding the prescribed emergency contingency amounts, but including other contingency funds. EWA shall also prepare recommended capital acquisitions budgets as part of the annual budget process for the Pump Stations. The capital acquisitions budgets shall be for replacements and rehabilitation efforts which will not affect the designed capacity or operating characteristics of the station, to maintain station reliability, safety and compliance with regulatory requirements, except as specifically authorized pursuant to paragraph 3, below. capital budgets for the improvement, expansion and/or upgrades of the Pump Stations. However, EWA may make suggestions regarding improvements which-it believes are necessary or desirable. the extent such improvements are expected to require an expenditure of less than $50,000 (or the total budgeted amount of the emergency contingency reserve for the affected station), CARLSBAD and VISTA may request that such improvements be included in the capital acquisitions budgets for implementation by EWA; 1. Concurrently with the preparation of the annual 2. 3. EVA shall not be responsible to prepare or execute To ;3 however, EWA shall have no obligation to accept responsibility for undertaking such improvements. the planning, design, bidding, construction management or supervision of any capital improvements for the Pump Stations. Under no circumstances shall EWA be responsible for the planning, design, bidding, construction management or supervision of such work at either Pump Station. EWA shall, however, coordinate the continued operation and maintenance of the Pump Stations as necessary during the course of such construction. CARLSBAD and VISTA shall, before letting any contract for such work, provide a reasonable opportunity to EWA to comment on plans for making the proposed improvements.as respects operational consequences. Any such contract shall require'the contractor to name EWA as additional insured as to any insurance required of the contractor by the awarding agency and as to which the awarding agency will 'be insured, provided that EWA need not be an insured under any bid, performance or payment bonds required. Except as otherwise agreed, VISTA shall be responsible for 4. Following approval by EWA, the estimated operating and capital acquisitions budgets shall be forwarded to CARLSBAD and VISTA for approval. The estimated budgets shall be deemed effective upon the receipt by EWA of a certified copy of an approving resolution by CARLSBAD and VISTA. Until such time as formal approval has been received from CARLSBAD and VISTA, the estimated budgets shall constitute merely proposed budgets, subject to consideration or revision. In the event a proposed budget is not approved, EWA shall continue to operate and maintain the Pump Stations using the previous fiscal year budget figures, provided that if no budget is approved prior to the end of the current fiscal year, EWA shall have no obligation to continue to provide services hereunder after the close of the fiscal year. ARTICLE III: FUNDING 1. For the purposes of this Memorandum, responsibility for expenses incurred by EWA related to the Buena Vista Pump Station shall be allocated 15.5% to CARLSBAD and 84.5% to VISTA; and responsib$lity.for the Agua Hedionda Pump Station shall be allocated.38.5% to CARLSBAD and 61.5% to VISTA. Whenever CARLSBAD and VISTA agree, as between themselves, to alter these allocations, written notice of any change shall be given to EWA by both CARLSBAD and VISTA prior to the commencement of the fiscal year for which the change is to be effective. EWA shall be entitled to rely upon the written notices provided by CARLSBAD and VISTA as to any change in the allocation of expenses between the cities as to either or both Pump Stations. 1/20/98 4 2. Quarterly, on October 1, January 1, April 1, and July 1, EWA shall bill CARLSBAD and VISTA. CARLSBAD and VISTA shall promptly pay for the operating and capital acquisitions expenses incurred during the prior quarter of the fiscal year, excluding the emergency contingency. To the extent any operating reserve carried over from the prior fiscal year is insufficient, the operating reserve shall be billed on October 1, and replenished, as necessary upon subsequent quarterly billings. In the event that at the end of the fiscal year, the amount paid exceeds the audited actual expenses, the excess shall be credited to CARLSBAD and VISTA the following fiscal year. In the event the amount paid, including the operating resenre, is less than the audited additional expenses in the October 1 billing. The emergency contingency reserve amount will be billed and collected only on written demand by the EWA if an event occurs at the Pump Stations outside normal operations and maintenance. actual expenses then EWA shall bill CARLSBAD and VISTA the 3. 4. . 1n.accordance with the Revised Basic Agreement, the failure by one of the parties, CARLSBAD or VISTA, to pay budgeted ejrpenses shall not relieve the other party of its obligations to pay its proportional share, in addition to the unpaid balance of the party who failed to pay. ARTICLE IV: ACCOUNTING AND AUDITS EWA shall maintain full financial records showing all .. . expenses associated with or related to the work covered hereby. These records shall conform to generally accepted accounting - principles, and shall be examined by a certified public accountant prior to May 1 of each fiscal year as a part of EWA's annual audit of the Joint System. ARTICLE V: LIABILITY Notwithstanding the provisions of Government Code Section 895.2, CARLSBAD and VISTA 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 Pump Stations, their officers,.directors, agents and employees harmless from any and all claims, demands, liens, actions, liabilities, costs, and expenses, including attorneys' fees, based upon or arising out of 02 claimed to have arisen out of any act or omission by EWA related to this Memorandum, other than actual intentional or willful misconduct of an EWA employee, officer or'agent. Buena Sanitation District, the Leucadia County Water District, the Vallecitos Water District, and the City of Encinitas currently have no ownership interest in.the Pump Stations. 1/20/98 5 CARLSBAD and,VISTA also agree to hold harmless and defend such agencies and EWA, their officers, agents, and employees with respect to claim or legal proceedings or judgment made, filed, or presented against the foregoing, by reason of CARLSBAD and VISTA'S, or their officers', agents', or employees'.negligence, intentional or willful misconduct regarding operation and maintenance of said Pump Stations during the term of this Memorandum. ARTICLE VI: PUBLIC INFORMATION 1. General Operations. CARLSBAD and VISTA agree that the release of public information, except records requested under the Public Records Act, in situations relating to the general operations of the Pump Stations will be the responsibility of CARLSBAD and VISTA. EWA shall forward all media requests for information, except records requested under the Publkc Records Act, to the VISTA city manager or a designee to respond to such inquiries. Notwithstanding the foregoing provision, VISTA and CARLSBAD may respond independently to any request for public information in situations relating tQ general operations of the Pump Stations. participate in an emergency drill at least annually, scheduled by EWA, to establish, test and refine emergency protocols for the Pump Stations, including a written emergency communications plan for addressing public inquiries. EWA shall annually distribute the emergency communications plan to the parties following the emergency drill. The plan shall be consistent with this Article VI. 2. Emergencies; Codications Plan. The parties agree to VISTA and CARLSBAD'agree to use their best efforts to ensure that a spokesperson is available to respond to public inquiries on behalf of the owners of the Pump Stations in a timely manner. EWA staff shall confer with the spokespersons for VISTA and CARLSBAD to determine the lead spokesperson in accordance with the communications plan. Where no'spokesperson is immediately available from VISTA or CARLSBAD, and EWA determines that it is in the best interests of the public that factual information be released immediately in order to protect public health or safety, information to the public as necessary. the BWA General Manager or hidher designee may release such ARTICLE VII: INSURANCE Upon approval of this Memorandum, as part of the annual operating budgets CARLSBAD and VISTA shall pay for and EWA shall maintain, in full force and effect, insurance in connection with or related to the work to be performed by EWA under this 4 '0 .. 6 a Memorandum. This insurance shall include general liability and workers' compensation insurance. In addition, EWA shall obtain such property insurance, including boiler and machinery, and flood insurance, as CARLSBAD and VISTA may deem necessary to safeguard the Pump Stations. All of the member agencies of EWA shall be named as additional insureds as to the general liability CARLSBAD and VISTA shall be named as additional insureds as to any property insurance obtained by EWA interests. CAIUlSBAD and VISTA. CARLSBAD and VISTA acknowledge that EWA participates in and generally obtains coverage through CSRMA, and that earthquake coverage is not currently available through that facility. indemnity provisions of Article V hereof. . coverages obtained by EWA. ' for the Pump Stations, in accordance with their ownership Insurance obtained by EWA shall be approved by The aforesaid insurance shall in no manner limit the ARTICLE VIII: DISCLAIMERS 1. EWA shall not be involved in setsing or collecting any capacity or user fees for the Pump Stations. 2. EWA shall not be responsible for any defects or errors in the design or construction of the Pump Stations, but only for the exercise of ordinary care in the operation and maintenance of the Pump Stations. 3. In the case of the Buena Vista Pump Station, where discharge flows are limited by the request of CARLSBAD and it becomes evident that an overflow may occur, EWA will endeavor to contact the owners to make the decision where the overflow will be allowed to occur. In the event of an overflow, EWA will make the initial contact with the Regional Water Quality Control Board (RWQCB) Office of Emergency Services (OES), and County Department of Health Services (DOHS) within 24 hours, and follow up with a written Sanitary Sewer Overflow Report within 5 days, on behalf of the owners, and not on its own behalf. CARLSBAD shall be responsible for developing and maintaining the Pump Stations' spill response plan(s1 required by any regulatory agency, and making current copies of such plans available to EWA. EWA shall comply with such plans on behalf of CARLSBAD and'VISTA as to the pump Stations; provided that EWA shall provide CARLSBAD and VISTA draft spill response plans for such Pump Stations. Except as set forth in this paragraph, however, EWA shall have no responsibility for maintaining or carrying out the spill response plans of CARLSBAD or VISTA. all regulatory requirements imposed on the owners which are applicable to the Pump Stations. At present, these include Order 96-04 Waste Discharge Requirements Prohibiting Sanitary Sewer 4. EWA also shall make good faith efforts to comply with 7 Overflows by Sewer Collection Agencies issued by the San Diego Regional Water Quality Control Board to CARLSBAD and VISTA, Order No. 96-04 as amended. CARLSBAD and VISTA shall promptly advise EWA if or when there are other applicable requirements. EWA shall have no obligation to seek any amendments to such requirements. ARTICLE IX: DURATION OF MEMORANDUM; TERMINATION This Memorandum shall remain in effect until April 1, 1999, and'shall continue from year to year thereafter, unless any party hereto gives not less than 60 days notice prior to the commencement of any fiscal year of its intent to terminate this Memorandum. In the event of termination of this Memarandum, the parties acknowledge that they will continue to be bound solely by the provisions of the Revised Basic Agreement and Revised Establishment Document, as each may be amended from Eime to time. ARTICLE X: WARRANTS AND REPRESENTATXONS CARLSBAD and VISTA warrant to EWA that: 1. To the best of CARLSBAD and VISTA'S knowledge, there is not at present upon the Pump Stations, or any portion thereof, or on any continuous or adjacent property owned by CARLSBAD and VISTA, any toxic or hazardous substances, materials or wastes, including, but not limited to asbestos, other than those which have been disclosed to EWA in writing or which are ordinary and customary supplies, stored in accordance with all legal requirements, for the routine and on-going operation and maintenance of the facilities. 2. Except as provided in the Revised Basic Agreement, there are no covenants, easements, licenses , leases, or any other contracts, written or oral, between CARLSBAD and VISTA, their agents or assigns, and any other person regarding the operation or maintenance of the Pump Stations. ARTICLg XI: NOTICES All notices, statenients, demands, requests, consents, approvals, authorizations, agreements, appointments or designations hereunder shall be given in writing and addressed to: the Carlsbad City Manager at 1200 Carlsbad Village Drive, Carlsbad, CA; the Vista City Manager at P.O. Box 1988, Vista, CA; CA . and the EWA General Manager at 6200 Avenida Encinas, Carlsbad, 0 0 8 ARTICLE XII: DISPUTE RESOLUTION EWA, pRLSBAD and VISTA agree that the maintenance of a cooperative and mutually beneficial relationship between them is an important aspect of this Memorandum and therefore intend to controversies that may arise during the course of this Memorandum in an efficient manner to avoid resort to legal actions against one another, if feasible. provide means for resolving any disputes, claims, or Therefore, except for any claim or action filed by a . nonparty to this Memorandum, any dispute, claim, or controversy arising with respect to the interpretation of this Memorandum or the performance of any party shall be first submitted to a three- step dispute resolution process that includes, in sequence: (1) an informal meet and confer process between representatives designated by all the parties, (2) mediation, and (31: arbitration. Except for any claim or action filed by a nonparty hereto, upon any dispute, claim, or controversy ("Dispute") arising with respect to the interpretation of this Memorandum, or the performance of any party, which is not immediately resolved between the parties, the party asserting such Dispute may, within 30 days from the date the Dispute has arisen, serve written notice upon the other that a Dispute exists with respect to this Memorandum, and each party shall then within fourteen days designate one or more representatives and shall establish a time and place at which to meet and confer in mutual good faith to resolve the Dispute. effort have elapsed, a resolution of the Dispute has not been established to the mutual satisfaction of both parties, any party may then initiate a mediation process by serving a written notice of the election to mediate upon the other. . In the event the election to mediate a Dispute is invoked by either party, a request for mediation shall be filed within 30 days in the San Diego Regional Office of the American Arbitration Association (l*AAA1t) and the mediation shall be initiated and conducted in accordance with the Commercial Rules of mediation of the AAA, or by any other method mutually agreeable to the parties. confidential and may not be disclosed without consent of all participants. party may then elect arbitration by providing a written notice of such election to the other parties. to the other parties within.30 days following the conclusion of mediation. Upon serving written notice upon the other parties, If, after a reasonable amount of time and Any statements 'made during mediation shall remain In the event mediation does not resolve the Dispute, any Such request must be mailed 1/20/98 ? the request for arbitration shall be filed at the AAA and the established by'the AAA, unless all parties mutually agree to an alternative method. Neither the parties nor the arbitrator may disclose the contents or results of the arbitration, except as may be required by law, without the prior written consent of all parties. arbitration and may agree that any award by or decision of an arbitrator shall be final. remedies.available to them at law. the parties shall continue to perform any duties or obligations existing under the Memorandum. arbitration shall be conducted in accordance with the rules The parties may agree to be bound by the results of the Nothing in this procedure shall prohibit the parties seeking During the course of any proceeding to resolve a Dispute, ARTICLE XIII: SEVERABILITY If any ane or mare a€ the terms, previsions, promises, covenants or conditions hereof shall be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions hereof shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. . ARTICLE XIV: MODIFICATIONS 'This Memorandum, together with the Revised Basic Agreement, contains all of the terms and conditions made between the parties 'hereto and shall not be altered except by an amendment in writing. ARTICLE XV: SUCCESSION; ASSIG"T The provisions hereof shall be binding upon and shall inure to the benefit of the successors of the parties. This Memorandum may not be assigned by any party without the written consent of the other parties. ARTICLE XVI: GOVEIWING LAW This Memorandum is to be governed by and construed in accordance with the laws of the State of California. 10 IN WITNESS WEREOF, the parties hereto have caused this Memorandum to be executed as of the day and year first above writ ten. Approved as to form CITY OF VISTA Approved as to form By: VISTA Counsel Approved as to form By : 1/20/98 .. . .. .. . - .. . __ . .. . 0 ... EXHIBIT 2 SCOPE OF WORK FOR ANNUAL OPERATION AND WNTENANCE SERVICES OPERATION AND MAINTSNANCE OF BWNA VISTA AND AGUA HEDIONDA PUbSP STATIONS EWA shall be responsible for all tasks needed to operate and maintain the Pump Stations. within the annual operating budgets and shall include: These tasks shall be performed 1. 2. 3. 4. 5. 6. 7. 8. 9. l(ZOf98 Operation, maintenance, and monitoring of the Pump Stations in accordance with (a) safe and sound operational, maintenance, engineering, and accounting practices and (b) local, state and federal laws and regulations, except as provided in the Agreement for Operation and Maintenance of the Buena Visth Pump Station and the Agua Hedionda Pump Station. coordinated with the operation and maintenance of the EWPCF, such that EWA attempts to.provide CARLSBAD and VISTA with as cost-effective operation as possible, while maintaining station reliability. Development and execution of contracts in connection with the operation and maintenance of the Pump Stations. Operation and maintenance of the Pump Stations shall be Employment of agents and employees to operate, maintain, administer, and manage the Pump Stations. Preparation of annual operating and annual capital acquisitions budgets. .. Incurring of debts, liabilities or obligations in connection with the operation, maintenance, administration and management of the Pump Stations. Provision of financial and audit services for services provided by qA hereunder. Acquisition, holding, and disposition of such equipment as may be reasonably necessary to the operation, -maintenance, administration, and management of the Pump Stations. Filing of reports associated with the operation, maintenance, administration, and management of the Pump Stations. Maintenance of insurance for maintenance and operations performed by EWA. 10. II * 12. 13. The design capacity of the Buena Vista Pump Station with four pumps on is 23.1 million gallons per day (mgd), with three pumps on is 21.5 mgd and with two pumps on is 17.8 mgd. EWA shall not operate the Buena Vista Pump Station in excess of 15.8 mgd or 11,000 gallons per minute unless authorized in writing by CARLSRAD. The design capacity of the Agua Hedionda hmp Station with three pumps on, and one in standby, is 31 mgd. No pumping restrictions have been placed on this station's output. Routine inspection and maintenance of the air; release and main line valves on the Buena Vista pump Station forcemain, notwithstanding that such appurtenances are located outside of the fenced area of the pump station. Preparation of draft spill response plans fbr the Pump Stations for inclusion by VISTA and CARLSBAD in the spill response plans VISTA and CpRLSBAD maintain for the RWQCB or other regulatory agencies. . 1 AGREEMENT FOR OWNERSHIP, OPERATION, AND MAINTENANCE OF THE VISTNCARLSBAD INTERCEPTOR SEWER THIS AGREEMENT is made and entered into as of the February 26th day of , 20=, by and between the City of Vista, a general law city (Vista"), and the City of Carlsbad, a general law city ("Carlsbad"), collectively, ("the Parties"). RECITALS WHEREAS, the Parties are responsible for providing sewage collection and transmission in their respective senrice areas and are authorized to contract with others for the provision of such services; and WHEREAS, on July 13, 1961, Vista Sanitation District end Carlsbad entered into an agreement pursuant to Chapter 5 of Division 7 of Title 1 of the California Government Code to acquire, construct and operate a Joint Sewer System and allocated ownership and capacity rights to Vista Sanitation District and Carlsbad in an interceptor sewer system, sewage treatment facility, and ocean outfall (the "Basic Agreement"). The joint sewer system components were divided into pipeline reaches and pumping stations referenced by Units A, €3, C, D, E, F, G, and H. WHEREAS, on August 17, 1971, Vista Sanitation District and Carlsbad entered into an agreement whereby Vista Sanitation District agreed to bear all cost of maintenance and operation of Unit "A", a trunk sewer pipeline paralleling 1-78 and extending from Vista to the Carlsbad city limit; and 1 2/08/02 \ct ? WHEREAS, on September 3, 1975, Vista and Carlsbad entered into an agreement whereby Unit C (Buena Vista Pump Station), Unit D (Buena Vista Force Main), and Unit G (Agua Hedionda Pumping Station) were increased in capacity and Carlsbad's capacity rights in Units C and D increased from 5.5 percent to 15.5 percent and Carlsbad's capacity rights in Unit G were reduced from 40.5 percent to 38.5 percent; and WHEREAS, on or about September 14, 1983, the Vista Sanitation District was dissolved, and Vista assumed the District's rights and obligations, induding those contained in the Basic Agreement; and WHEREAS, the Parties by written agreement dated December 27,1983, debtel Unit A and a portion of Unlt 8 from the Joint System and released them to Vista as sole owner with complete responsibility for maintenance thereof. WHEREAS, on October 24, 1984, the City of Vista and the City of Oceanside entered into an agreement to transfer sewage flow between the agencies; and WHEREAS, on May 22, 1987, a "Letter of Understanding for Upgrading of the Vista/Carlsbad Interceptor" was prepared by Carlsbad and submitted to Vista designating a "trigger mechanism" to start construction of replacement pipelines on the VisWCarlsbad Interceptor; and WHEREAS, pursuant to Article 1, Chapter 5, Division 7, Tffle 1 of the California Government Code, the Parties have entered into a Revised Basic Agreement, as may be amended from time to time, with the other member agencies of the Encina Wastewater Authority for he purpose of operating and maintaining a sewage treatment facility (Unit I) and ocean outfall (Unit 3) (the "Revised Basic Agreement"); and 2 1 WHEREAS, Section 12.1.2 of the Revised Basic Agreement stipulates that the Administrator of the Encina Wastewater Authority shall operate and maintain, at the expense of Vista and Carlsbad, the Buena Vista and Agua Hedionda Pumping Stations (formerly Units C and G, respectively, in the Basic Agreement); and WHEREAS, Units B, D, E, F, and H of the Basic Agreement were not incorporated into the Revised Basic Agreement with regard to operation, maintenance, or construction of the VistalCarlsbad Interceptor, and WHEREAS, the Parties desire to enter into an agreement for ownership, operation, and maintenance of the ViWCarlsbad Interceptor, described herein as VC1 through VCl6, the Buena Vista Pump Station and the Agua Hedionda Pump Station, the location of said facilities is as shown on attached Exhibits "A-I", "A-2" and "A-3" and incorporated herein by reference. THEREFORE, THE PARTIES HERETO AGREE TO THE FOLLOWING: SECTJON 1. DEFINITIONS For the purposes of this agreement, the following terms shall have the meanings indicated: 1 .I VisWCarlsbad InterceDtor. An interceptor sewer pipeline, jointly owned by Vista and Carlsbad, beginning at Manhole No. 35 (according to City of Vista Drawing No. 1981, As-Built 2/27/87) located in the City of Oceanside approximately 360 feet east of the northeasterly City boundary of Carlsbad and extending to the Encina Water Pollution Control Facility and includes the Buena Vista Pumping Station and force main and the Agua Hedionda Pumping Station and force main, and any future improvements, and replacements, all as shown on Exhibits "A-l", "A-2" and "A-3" . 3 1.2 Preliminarv Desicln Reowt . A report that investigates a proposed improvement or enlargement to the VistalCarlsbad Interceptor and provides information on the need for the improvement or enlargement, a description of facilities, materials, and design criteria, and a detailed cast estimate for the improvements or enlargement including engineering, right-of-way, legal, administrative, construction and inspection, and a tentative schedule for final design and construction. The Preliminary Design Report may be prepared for any component needing upgrading when the peak dry weather flow rate reaches sixty (60) percent of full pipe capacity. 1.3. Administrator. The Administrator shall be the indhriduals designated to administer the functions of the sewer system for that Ci. For Vista and Carlsbad, the Administrator is each City's City Manager or hislher designated representative. 1.4 Lead Aaency. The Party to Project Agreements given responsibility for planning, design, and construction of a given component of the Vista/Carlsbad Interceptor. 1.5 PiDeline Reach. A portion or segment of the VistalCarlsbad Interceptor sewer. A Pipeline Reach designates a change in pipe capacity or capacity ownership by the Parties. The unit designation contained in the Basic Agreement for Pipeline Reaches and pumping stations is hereby replaced with Pipeline Reaches designated VC1 through VC16, the Buena Vista Pumping Station and the Agua Hedionda Pumping Station, all as shown on Exhibits "A-la, "A-2" and *A-3". 1.6 Inflow and Infiltration. The sewer pipeline shall be maintained to exclude excessive inflow of surface water and infiltration of groundwater through manhole risers, covers and pipeline joints. Allowable infiltration shall not exceed 500 gpd per inchdiameter per mile. 4 2/08/02 aa- 1.7 Wastewater. Wastewater shall be construed to mean domestic sewage, authorized industrial discharges that are in compliance with the Encina Wastewater Authority's Source Control Program, and lnflow/lnfiltration. 1.8 ImDmvement or Enlataement Costg. The cost of land, easements and rights-of-way, engineering, construction management, construction inspection, and construction. 1.9 Proiect Aareemenl. A separate agreement between Vista and Carlsbad which defines the project-specific requirements of each Party, cost sharing for design and construction, the method of cost accounting and the payment schedule for the improvement or enlargement of any portion of the VistdCarlsbad Interceptor. 1.1 0 Service Area. The Service Area shall be the sanitation sewer area se~ed by the City of Vista or the City of Carlsbad. It shall not include the sanitation sewer area of Buena Sanitation District unless approved by the Parties in writing. 1.11 CaDac*h/. Capacity, as defined herein, shall be construed to be the sewage flowrate that may be conveyed through a pipeline when flowing full and is based on a depth of flow (D) to pipe diameter (d) ratio of one (Le., D/d = 1 .O). SECTION 2. JOINT PARTlClPATfON The Parties shall participate jointly in the proportions hereinafter specified in the acquisition, construction, ownership, maintenance, operation and use of the VIstalCarlsbad Interceptor, including the parts thereof which may be subsequently acquired or constructed for the improvement or enlargement thereof. Further, the Parties shall pay for such acquisition, construction, ownership, maintenance, operation and use of the Vista/Carlsbad Interceptor in the proportions hereinafter shown in Exhibit B. 5 SECTION 3. CAPACITY RlGHTS 3.1 For the duration of this Agreement, each Party shall own and enjoy the right to use eighty percent (80%) of the Capacity of the VisWCarlsbad Interceptor in the proportions set forth in the table identined as WistdCarIsbad Interceptor Sewer System - Capacity Rights" which is attached hereto and incorporated herein by reference as Exhibit "6". No Party shall use the VistalCarlsbad Interceptor, or any part thereof, to a greater percentage of its capacity and shall not in any way grant, encumber, limit or restrict its interest In any part of the ViWCarlsbad Interceptor, or partition or seek to partition the same or have the use of any part thereof for any purpose other than the disposal of sewage, without the prior written notification of the other Party. 3.2 If responsibility for tbe disposal of the sewage from a particular area regulated by this Agreement is to be transferred from one Party to the other, or a third Party, the capacity service shall be transferred accordingly on the effective date of the transfer of such responsibility, and the charges against the Parties amended to correspond therewith. Any Party proposing such transfer shall notify the other Party in advance of the transfer. No such transfer shall affect the capacity rights or obligations of the Parties in or to the VistdCarlsbad Interceptor until the Parties shall have executed appropriate amendments to this Agreement. 3.3 The capacity rights idenwed herein in Exhibit "B" include the increased capacities that will be available as the result of the sewer replacement project for Pipeline Reaches VCSB through VC1 IA of the Vista/Carlsbad Interceptor and subject to a separate Project Agreement as addressed in Section 5. 6 2/06/02 N 3.4 Neither Party shall exceed their capacity rights in the VistalCarlsbad Interceptor. In the event a Party temporarily exceeds its capacity rights, it shall reimburse the other party the value of the excess capacity rights used. If the capacity used is one year or less, the value of the capacity used shall be determined on a percentage of the overall O&M Budget unless the Parties agree to transfer its respective percentage of ownership of the VisWCarlsbad Interceptor permanently. SECTION 4. ACQUISITION OF ADDITIONAL CAPACITY In the event either Party requires capacity in the VisWCarlsbad Interceptor in excess of the proportionate capacity allocated under this Agreement, and the VistalCarlsbad Interceptor is not being used by the other Party to the full percentage of the total capacity to which they are entitled, the Party requiring additional capacity may lease or pUEhaS8 such additional capacity from the other Party. Such lease or purchase shall be accomplished by written agreement. SECTION 5. RESPONSIBILITIES OF LEAD AGENCY Carfsbad shall be the Lead Agency with responsibility for the VistdCarlsbad Interceptor, unless agreed upon othetwise by a separate Project Agreement; and therefore, Carlsbad and Vista shall mutually agree on all recommendations for improvements and enlargements to the VistdCarlsbad Interceptor. A separate Project Agreement shall be prepared and executed by the Parties for all future improvements and enlargements to the ViWCarfsbad Interceptor and to det8rmine the Lead Agency for the Project Agreement . 7 2/06/02 QS SECTION 6. IMPROVEMENTS OR ENLARGEMENTS OF THE VISTN CARLSBAD INTERCEPTOR 6.1 As deemed necessary, the Parties shall meet to discuss future improvements or enlargements of the Vista/Carfsbad Interceptor. Once it is agreed between the Parties that an improvement or enlargement is necessary, a Preliminary Design Report for the improvement or enlargement of the Vista/Carfsbad Interceptor shall be prepared. Upon completion and acceptance by the Parties of a Preliminary Design Report detailing an improvement or enlargement, a Lead Agency will be designated that wilt prepare a Project Agreement which will identify the project spec% requirements of each Party including the cost sharing of the Preliminary Design Report. When the Project Agreement has been accepted by the City Council of each Party, 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 shail contain all appropriate hold harmless clauses, insurance requirements and indemnifications for those agencies affected by the project. 6.2 6.3 Upon completion of the plans, specifications, and related materials, their approval by the other Party, the acquisition of the necessary lands and rights-of-way, and at such time as the Parties are prepared to finance their proportionate shares of the acquisition and consbudion cast, the Lead Agency 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 Parties. 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. 8 2/06/02 6.4 The Parties may, at their sole cost and expense, enlarge any pipeline reach or pumping station or portion thereof of the VistalCarIsbad Interceptor in which it is the owner of capacity rights and any increased capacity in such pipeline reach or portion resulting from the eniargement shall belong to such Party paying the cost and expense thereof. The enlargement shall be performed in accordance with the requirements of this Section and by separate agreement. SECTION 7. IANDS AND RIGHTS-OF-WAY 7.1 Any land or rights-of-way acquired for the improvement or enlargement of the VistdCarlsbad Interceptor shall be acquired in the name of Carlsbad and Vista as tenants in common. 7.2 At such time as the plans specifying the location of the necessary lands and rights-of-way for improvement or enlargement of the VistalCarlsbad Interceptor have been prepared and approved by the Parties and the respective funds of the Parties are avallable for the acquisRion thereof, the Lead Agency shall proceed to acquire the necessary land and rights-of-way. The Lead Agency shall notify the other Party of the amount to be deposited by the other Party with the Lead Agency to pay its proportionate share of the acquisition costs. The other Party shall deposit its share with the Lead Agency prior to recording acquisition documents. SECTION 8. COST SHARfNG OF IMPROVEMENTS OR ENLARGEMENTS 8.1 All improvement or enlargement costs of the VisWCarlsbad Interceptor which are deemed necessary and beneficial to both Parties under any Project Agreement shall be borne and paid by the Parties in proportion to each Party's capacity rights for each Pipeline Reach listed in the table attached as Exhibit "B", except as otheMlise required by Section 6.4 of this Agreement. Under this section 'necessary and beneficial" shall mean those expenses that are necessary for the 9 2/08/02 completion of the improvement or enlargement of the VistalCarlsbad Interceptor and benefit both Parties to the Project Agreement . 8.2 Cost sharing shall be based on percentage of capacity owned after improvements are constructed. SECTION 9, OPERATION AND MAINTENANCE 9.1 Operation and maintenance of the VistdCarlsbad Interceptor shall include the labor, equipment and materials required for daily operation and routine maintenance. Routine annual maintenance activities typically include visual inspections of all manholes, clearing around manholes, grading and maintaining access roads and replacement of severely corroded or damaged manhoje frames and lids. Cleaning and special inspections, such as the inspection of the trestle crossing of the Agua Hedionda Lagoon, will be performed every three to five years or as necessary to maintain the intended function of the VisWCarlsbad Interceptor. Cteaning and special inspections shal! not be considered to be routine annual maintenance. 9.2 Carlsbad shall operate and maintain the VistdCarlsbad Interceptor, except for that portion specificafly excluded in Section 9.3 below, in good repair and working order in accordance with recognized sound engineering practice. Carlsbad shalt maintain accurate records and accounts in connection with the operation and maintenance of the VistdCarIsbad Interceptor. These records and accounts shall be available for inspection by Vista upon request by written notice. 9.3 Operation and maintenance of the Buena Vista and Agua Hedionda Pump Stations and force mains of the VisWCarlsbad Interceptor shall be the responsibility of the Adrninistrator/Operator of the Encina Wastewater Authority as identified in Section 12.1 -2 of the Revised Basic Agreement with the Encina Joint Powers Authority, as may be amended from time to time, a copy of which is on file with the Administrator of io 2/08/02 ad each Party. Operation and maintenance of existing Pipeline Reaches VCl through VC3 shall be the responsibility of Vista until the pipeline and manholes have been rehabilitated or a replacement pipeline is constructed, finally accepted, and operational. SECT10 N 10. BUDGETING AND ACCOUNTING FOR OPERATION AND MAtNTENANCc 10.1 Annual expenses for routine operation and maintenance of the VistalCarlsbad Interceptor shall be based on a rate of $2,000 per mile of gravity sewer 0s detailed in Exhibit "C", for a total annual cost of $14,000. An inflation rate of three percent (3%) shall be applied annually to these expenses. These expenses, hereinafter referred to as O&M expenses, include the labor, equipment, materials and administration necessary to maintain the daily operation of the VisWCarlsbad Interceptor as identified in Section 9.1. 10.2 Carfsbad and Vista shall share in the operation and maintenance expenses of the VistalCarlsbad Interceptor, except as stated othenrv'se in Section 10.3, based on the approximate ownership of each Party at the mid-point of the sewer. Vistashall be responsible for seventy-five percent (75%) and Carlsbad shall be responsible for twenty-five percent (25%) of all O&M expenses . Annually, on or around July 1 of each year, Carlsbad shall invoice Vista for their share of the operation and maintenance costs identified in Section 10.1 for the forthcoming fiscal year. Special inspections and cleaning, not included as part of routine annual maintenance, will be performed as necessary by Carlsbad or a qualified contractor, as agreed by both Parties, and invoiced to Vista on a time and material basis in proportion to the percentage identified herein. It 2/06/02 23 10.3 The budget for the operatlon and mahtenance of the Buena Vista and Agua Hedionda Pump Stations and force mains shall be prepared by the AdministratodOperator of the Encina Wastewater Authority in accordance with the Revised Basic Agreement. Vista shall be entitled to a credit for its operation and maintenance of existing pipeline Reaches VC1 through VC3 until said responsibility is relinquished to Carlsbad in accordance with the terms of Section 9.3. The annual credit to Vista shall be $3,600 plus (3%) three percent inflation for each subsequent year that these reaches are maintained by Vista. SECTION 11. EME RGENCY REPAIRS OR RECONSTRUCTION 11 .l Cartsbad shall be allowed to perform emergency repairs or reconstruction of the VisWCarlsbad Interceptor, in whole or in part, without prior approval from Vista as necessary to maintain the continuous operation of the system such that the need for repair or reconstruction is necessary to prevent property damage or imminent danger to health and safety. 11.2 The Parties shall each pay all costs of reconstruction of the Vista/Carlsbad Interceptor, or portion thereof, in the same proportion as the Parties own capacity in the VistdCarisbad Interceptor as provided in attached Exhibit "B". SECTION 12. MEASUREMENT OF SEWAGE FLOW/CAPACITY MONITORING Flows in the VistdCarIsbad Interceptor shall be monitored in accordance with Section 7 of the Revised Basic Agreement with the Encina Joint Powers Authority, as may be amended from time to time. A copy of which is on file with the Administrator of each Party. 12 2/08/02 Additional flow monitoring may be performed by either Party as may be needed to monitor the capacity in selected reaches of the interceptor. The Party's proposed flow monitoring program shall be presented to the other Party for their review and appmvai prior to initiation of the activity. The cost of a temporary flow monitoring program shall be shared by the Parties in proportion to their respective capacity ownership rights identified in Exhibit "B". Either Party may conduct a flow monitoring program at its own expense without prior approval of the other Party. SECTION 13. PROTECTION OF THE VISTNCARLSBAR INTERCEPTOW SOURCE CONTRQl 13.1 The Vista/Carlsbad Interceptor shall not be used by any Party to this Agreement for any purpose other than the conveyance of wastewater unless mutually agreed to by separate written agreement. 13.2 Each Party to this Agreement shall take reasonable steps to prevent excessive inflow of any surface or storm waters or excessive infiltration of groundwater, as defined by Section 1.6, to be discharged into the VistdCarlsbad Interceptor, either directly or indirectly. When wet weather flow exceeds 160% of the 30day average maximum day dry weather flow as determined by flow monitoring, an Infiltration and Inflow Study shall be initiated. The Lead Agency shatl perform all studies on the VistdCarlsbad Interceptor with cost for the study being shared equally between the Parties. Should the results of the study identify upstream collector or trunk sewers as the source of inflow or infiltration, Each Party shall be responsible for the cost to repair the sewer system within its Service Area to reduce Inflow and Infiltration to acceptable levels. 13 aw02 3\ 13.3 No Patty to this Agreement shall allow cooling water or other unpolluted industrial wastewater to be discharged directly or indirectly into the Vista/Carlsbad Interceptor without the consent of the Parties to this Agreement and Encina Wastewater Authority. SECTION 14. RULES AND REGULATIONS CONCE RNlNG USF OF SEWERS Each Party shall adopt and enforce ordinances, resolutions, rules and regulations, concerning the type and condition of sewage and waste permitted to be discharged directly or indirectly into the VisWCarisbad lnterceptor and shall prohibit persons and users of every kind and nature, including but not limited to, other public agencies from discharging into such sewers any sewage or waste which would be dettimental to the VistdCarlsbad Interceptor or any part thereof. Such ordinances, resolutions and rules shall comply with the "Pre-Treatment Ordinance for the Encina Wastewater Authority", amended March 28, 2001, as may be amended from time to time. Each Party shall also comply with the applicable statutes, ordinances, rules and regulations of agencies of the United States, State of California, County of San Diego, California Regional Water Quality Control Board-San Diego Region, the Encina Water Pollution Control Facility, and any city having jurisdiction over the collection, transmission, treatment and disposal of sewage and wastes. SECTION 15. CONNECTION TO VISTNCARLSBAD INTERCEPTOR Connections to the VisWCarlsbad Interceptor shall be made only at manholes. Only collection or tmnk sewer lines may be connected to the VistalCarlsbad Interceptor or any part thereof, and no Party to this Agreement shall approve or permit the direct connection of any premises to the VistdCarlsbad Interceptor without issuing advance written notice to the other Party. 14 2/06/02 SECTION 16. BUDGETING AND ACCOUNTING Each Party shall be strictly accountabfe for all funds received and shall maintain adequate records of all receipts and disbursements pursuant to this Agreement. In addition, each Party shall maintain such additional records relating to the acquisition, construction, ownership, maintenance, operation and use of the ViWCarlsbad Interceptor as is appropriate. Each of the Parties, with reasonable notice, has the right to inspect and examine the records of the other Party insofar as such records relate to the VisWCarlsbad Interceptor. SECTION 17. INSURANCE Each Party 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 Party, their agents, representatives, employees or subcontractors. Each Party shall maintain worker's compensation coverage and limits as required by the California Labor Code. SECTION 18. SEWAGE SPILLS Except as otherwise provided below, any sewage spill which occurs as a result of an unforeseen condition, and said sewage spill could not have been prevented with normal and routine maintenance, then each Party shall be responsible for the costs for cleanup and payment of any legal fines and expenses incurred in proportion to each Party's Capacity Ownership in the VistdCarlsbad Interceptor. Any Party, who by its sale negligence or willful misconduct, causes a sewage spill shall be solely responsible for all costs for cleanup and payment of any legal fines and expenses incurred. 15 2/06/02 33 SECTION 19, HOLD HARMLESS Except for the other Party‘s sole negligence or willful misconduct, if the Lead Agency constructs any facility, pipeline, or improvement, the other Party, its officen and employees shall not be liable for any claims, liabilities, penalties, fines, or any damage to goods, properties, or effects of any person whatever, nor for personal injuries or death caused by, or resulting from, any intentional or negligent acts, errors or omissions of the Lead Agency or its agents, employees or representatives in connection with said construction. The Lead Agency shall defend, indemnify, and hold free and harmless the other Party and its officers and employees against any of the foregoing claims, liabilities, penalties or fines, including liabilities or claims by reason of alleged defects in any plans and specifications, and any cost, expense or attorney’s fees which are incurred by the other Party on account of any of the foregoing. Where loss occurs from the negligent operation or maintenance of the Lead Agency, the Lead Agency shall indemnify the other agency for all liabilities, lawsuits, andlor fines by Regulatory Agencies incurred therefrom. In addition, where construction work is performed by the Lead Agency, the Lead Agency shall indemnify the other Party for all liabilities arising out of the construction work as a result of negligence, lawsuits, and/or fines by Regulatory Agencies. For purposes of this section, the Lead Agency for the operation and maintenance of existing Pipeline Reaches VC1 through VC3 shall be Vista until the pipeline and manholes have been rehabilitated or a replacement pipeline is constructed, finally accepted, and operational. 16 2/06/02 3Li SECTION 20. NOTICE Notice required or permitted under this Agreement shall be pmvided in writing, either sewed personally upon or mailed by registered or certified mail to the Administrator of the other Party. SECTION 21, SETTLEMENT OF DISPUTE OR CONTROVERSY 21.1 Should any dispute or controversy arise in connection with the books, records or accounts of any Party to this Agreement or in connection with the acquisition, constructfan, maintenance, operation, repair, reconstruction or enlargement of the VistdCarlsbad Interceptor 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, the Patties shall select a disinterested mediator to assist in the resolution of the dispute. Each party shall share equally in the cost of the mediator. 21.2 In the event that the Parties are unable to resohe the dispute with a disinterested mediator, the Parties shall submit to non-binding arbitration. In the event of such election, each Party shall appoint or designate one disinterested person as an arbitrator and said arbitrators so chosen, if an even number, shall designate an additional disinterested person to make an odd number of arbitrators and said arbitrators so chosen shall act as a Board of Arbitrators in connection with any such dispute or controversy. The decision of the arbitrators shall be binding unless a Party files a legal action for a trial de-novo. ff the Party seeking trial de-novo fails to obtain a judgment better than the arbitrator's decision, that Party shall be liable for all cost, including attorneys fees of the other Party. 17 2/08/02 3% SECTION 22. MODIFICATION OF AGREEMENT Agreement shall contain all 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 23. SWEMlLITY, If any section, subsection, sentence, clause, phrase or work 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 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 work 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 24. COUNTERPARTS 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. Ill 18 2/06/02 310 SECTION 25. TERM The term of this Agreement will be effective for a period of twenty (20) years from the date first above written. The Agreement may be extended for two (2) additional ten (IO) year periods or parts thereof. The Parties will prepare a written amendment indicating the effectiie date and length of the extended Agreement. IN WITNESS WHEREOF, each Party hereto has pursuant to resolution duly passed and adopted by its respective governing body this AGREEMENT and caused it to be executed and be effective on the date first above written. CITY OF VISTA: CfTY Qf&?RLSBAP: a m~al te of a rnia ATTEST: ATTEST: 1 By: J OF I BERT, City- Clerk , City Clerk APPROVED AS TO FORM: J. WAVE DERNETZ, City Attorney APPROVED AS TO FORM: RONALD R. BALL, City Attorney By#@-- eputy City Attorney 19 2/06/02 37 Exhibit "A-2" VistalCarlsbad Interceptor I Exhibit "AX VistalCarlsbad Interceptor EXHIBIT “6“ VlSTAlCARLSBAO INTERCEPTOR SEWER SYSTEM Capacity Rights a) Pipe capacity is based on a depth of flow (D) to pipe diameter (d) ratio of one (Le., D/d = 1) and Manning’s “nu value of 0.013, except where noted with an *, n=0.012 for pvc lined pipe. b) Average flow rates are obtained from the October 1997 Sewer Master Plan Update for the City of Carlsbad. The Master Plan Update used a peaking factor of 2.0 for the VisWCarlsbad Interceptor Sewer System. c) The percent capacity for each pipeline reach is based on the ratio of average flow to total flow times I00 percent. 20 2/06/02 EXHIBIT "C" VISTNCARLSBAD INTERCEPTOR SEWER ANNUAL OPERATiON 4% MAINTENANCE BUDGET Approxlmate length of gravity sewer, 7-miles Cost per mile, $1 4,000/7-miles = $2,000 per mile NOTES: 1. Annual OhM costs do not include special inspections such as the Agua Hedionda Trestle or pipeline cleaning which can be evected to occur every 3-5 years. 2. O&M costs will be increased 3% per par to adjust for inflation. 21 2/06/02