HomeMy WebLinkAbout2011-01-11; City Council; 20428; MOU OPERATION MAINTENANCE BUENA VISTA PUMP STATIONCITY OF CARLSBAD - AGENDA BILL
20,428AB#
MTG. 1/11/11
DEPT. UTIL
APPROVAL OF MOU FOR OPERATION AND
MAINTENANCE OF BUENA VISTA PUMP STATION
AND AGUA HEDIONDA PUMP STATION
DEPT. HEAD
CITY ATTY. (L(</(
CITY MGR.
RECOMMENDED ACTION:
It is recommended that the City Council adopt Resolution No. 2011-005 approving the
Memorandum of Understanding for Operation and Maintenance of Buena Vista Pump Station and
Agua Hedionda Pump Station.
ITEM EXPLANATION:
On March 24, 1998, the City Council approved entering into a memorandum of understanding (MOU)
with Encina Wastewater Authority (EWA) for operation and maintenance of the Buena Vista and Agua
Hedionda Pump Stations. The pump stations are jointly owned by the City of Carlsbad and the City of
Vista. Staff from both Carlsbad and Vista desire to update the MOU to incorporate revised operation
and emergency response procedures. Additionally, this MOU includes refinement of legal
responsibilities, permitting, and public information protocol.
FISCAL IMPACT:
There is no fiscal impact by approving the revised MOU. The City of Carlsbad and the City of Vista
share proportionate operating costs for both pump stations. This MOU memorializes each agency's
operational responsibilities. Article 2.B.5 establishes "Remote Facility Emergency Reserve" in an
unidentified amount.
ENVIRONMENTAL IMPACT:
The approval of this MOU does not qualify as a project under California Environmental Quality
Act (CEQA Section 15738) and no environmental review is required.
EXHIBITS:
1. The City Council Adopt Resolution No. 2011-005
2.
3.
4.
_ Authorizing the Mayor to Approve
the Memorandum of Understanding for Operation of Buena Vista Pump Station and Agua
Hedionda Pump Station.
Memorandum of Understanding redlined comparison.
Memorandum of Understanding
Original Memorandum of Understanding dated March 24, 1998
DEPARTMENT CONTACT: Glenn Pruim 760-438-2722 Glenn.Pruim@carlsbadca.gov
FOR CITY CLERKS USE ONLY
BOARD ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
D
D
D
CONTINUED TO DATE SPECIFIC D
CONTINUED TO DATE UNKNOWN D
RETURNED TO STAFF D
OTHER-SEE MINUTES D
1
RESOLUTION NO. 2011-005
2
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
3 CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR
TO APPROVE MEMORANDUM OF UNDERSTANDING
4 FOR OPERATION AND MAINTENANCE OF BUENA VISTA
5 PUMP STATION AND AGUA HEDIONDA PUMP STATION
r*
WHEREAS, on March 24, 1998, the cities of Carlsbad and Vista entered into a
Memorandum of Understanding (MOU) with Encina Wastewater Authority (EWA) for operation
8 and maintenance of the Buena Vista and Agua Hedionda Pump Stations; and
9 WHEREAS, the Cities of Carlsbad and Vista jointly own the Buena Vista and Agua
10 Hedionda Pump Stations; and
11 WHEREAS, the Cities of Carlsbad and Vista desire to update the MOU to incorporate
12 revised operation and emergency response procedures; and
13 WHEREAS, this MOU includes refinement of legal responsibilities, permitting, and public
14
information protocol.
15 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
1 fi California, as follows:
17 1. That the above recitations are true and correct.
18 2. That the Memorandum of Understanding for Operation and Maintenance of the
19 Buena Vista and Agua Hedionda Pump Stations is hereby approved.
20
21
22
23
24
25
26
27
28
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
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 11th day of January, 2011, by the following vote to wit:
AYES: Council Members Hall, Kulchin, Blackburn, Douglas, Packard.
NOES: None.
ABSENT: None.
MATT H^LL, Mayor
ATTEST:
M. WOOD, City Clerk
JVlEMORANpyiyi OF UNDERSTANDING FOR
OPERATION AND MAINTENANCE
OF BUENA VISTA PUMP STATION AND AGUA HEDIONDA PUMP STATION
* „, - -{"Formatted: Font: 11 pt
Formatted: Space After: 12 pt, Line spacing:
single
Ref:Admin.08-8995
This Memorandum of Understanding is entered into -this day of
^ 2010, py and between Jthe cities_of_Ca_rlsbad_a_nd_Vis_ta,_^ , - -{Formatted: Font: 11 pt~
hereinafter referred to as CARLSBAD and VISTA and the Encina Wastewater Authority, hereinafter
referred to as EWA (collectively referred to as "Parties" and individually referred to as "Party"), with
respect to the following facts:
RECITALS
'"{ Formatted: Font: 11 pt
WHEREAS, CARLSBAD and VISTA jointly own the Buena Vista Pump Station and Agua Hedionda
pPump sStations, including the force mains associated with such stations, their valves and
appurtenances, and certain gravity sewer lines; and
WHEREAS, CARLSBAD and VISTA entered into an agreement for the operation and maintenance
of the Buena Vista and Agua Hedionda pump stations and now CARLSBAD and VISTA desire to rescind
that agreement and replace it with a new agreement; and,
WHEREAS, for purposes of this Memorandum of Understanding, the Buena Vista and Agua
Hedionda pump stations and related facilities located inside the fencing surrounding the Buena Vista
Pump Station, as shown on jxhibit 1A,, jnd Agu_a_Hedipnda §Pjjjrip s^tations^ as shown on Jxhibit IB,
shall collectively be referred to as the "Pump Stations" and individually referred to as "Pump Station;"
andt
, - \ Formatted: Font: 11 pt, Bold
' -( Formatted: Font: 11 pt
- - \ Formatted: Font: 11 pt
WHEREAS, Section 12.1.2 of the Revised Basic Agreement for Ownership, Operation and
Maintenance of a Joint Sewerage System ("RBA") provides that EWA shall operate and maintain, at the
Ae_xpen_se of_yiSTA_a_nd_CARLSBAD, the Pujnp Stations ^formerly referred to_as Units_C an_d_G of_the Jojnt_^ _ - \ Formatted: Font: ll pt~
System), within an annual estimated budget prepared by EWA and approved by VISTA and CARLSBAD;
WHEREAS, EWA is currently operating the Pump Stations to the satisfaction of CARLSBAD and
VISTA; and,
WHEREAS, CARLSBAD and VISTA desire EWA to continue to operate and maintain the Pump
Stations, and EWA 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 set forth the following Memorandum of Understanding ("MOU")
, - -( Formatted: Font: 11 pt~
- Formatted: Centered, Space After: 12 pt, Line
spacing: single
Formatted: Indent: First line: 0.5", Space
After: 12 pt, Line spacing: single
jARTICLE 1: SCOPE OF WORK ~>, - \ Formatted: Font: Bold, Underline
A. EWA Scope of Work. Specific services to be provided by EWA hereunder are detailed in
Exhibit 2, Scope of Work for Annual Operation and Maintenance ("O&M") Services. In the event of any
Formatted: Centered, Space After: 12 pt, Line
spacing: single
JRej^AdrninJ.p-8995,2 _ -
**^
Formatted: Font: Calibri, 10 pt, Font color:
~»^ [ Black
Revision Date:^ej3ternbe/_28,_2p:ipSoj3tojTfo^^ \\N" -[ Formatted: Font: CalibrT
conflict between the provisions of Exhibit 2 and this MOU, the terms of the MOU will govern. In * \\x j Formatted: Font- Calibri
performing these services, EWA shall follow practices consistent with generally accepted technical \* VfT „. . ,. ,_,.,.o/r- \x 1 Formatted: Font: Calibristandards and EWA represents that its staff are skilled in the expertise necessary to provide these ^ v), M Formatted: Rightservices. •l
Formatted: Font: Calibri, 10 pt, Font color:
B. Lead Agency on Capital Improvement Planning and Execution. Except as otherwise
agreed by the Owner Agencies. CARLSBAD shall be responsible for the planning, design, bidding,
construction management and supervision of all capital improvements to 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 and
maintenance 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.
jARTICLE 2-L BUDGETING *_-.,- \ Formatted: Underline
A. 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. These expenses shall include but not
be limited to such things as salaries and benefits, building and equipment maintenance costs, utilities,
chemicals, permit and permit amendment costs, monitoring, accounting and auditing costs,
administration costs, legal services, overhead costs, insurance, and other costs as required for operation
and maintenance of the Pump Stations in conformance with this MOU.
B. 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 accounting
principles generally accepted in the United States of America, the Revised Establishment Document for
the Encina Wastewater Authority ("RED") and the RBA, as follows:
1. Generally. In accordance with the RBA and not later than May 1 of each year,
EWA shall prepare, concurrently with the preparation of the EWA Operation & Maintenance Budget,
estimated budgets for the amount of money required to operate and maintain the Pump Stations.
Formatted: Indent: Left: 0", Space After: 12
Pt
2. pperating a/id Majntenance Budgets. The operating and_maintenance budgets^. „ - \ Formatted: No underline
shall be separate for (a) the Buena Vista Pump Station and (b) the Agua Hedionda Pump Station, and
each budget shall includeJFthe estimated amount of money required for operation and maintenance
including, but not limited to: salaries and benefits, building and equipment maintenance costs, utilities,
chemicals, permits and permit amendment costs, accounting and auditing costs, administration costs,
legal services, overhead costs, insurance and other costs as required for operation and maintenance in
conformance with this MOU.
3. Planned Asset Replacement and Capital Acquisition Budgets. Concurrently with
the preparation of the Encina Water Pollution Control Facility (EWPCF) Capital Improvement Program
Budget and not later than May 1 of each year, EWA shall also prepare estimated Capital Acquisitions and { Formatted: Font: Bold
/Formatted: Font: Bold
/ /
-2 of 17-
-"?,'\^\ *
Revision Date:^epternber 28,jQlpSoj3tojTij]or_2j,_2plOSeptQrnbpr_22,_2plOjunj! 9,_2plOApril 13. JOlQ \\
Planned Asset Replacement budgets (hereinafter referred to as capital acquisition budgets) as part of * \
the annual budget process for the Pump Stations. The capital acquisition budgets shall be for V
replacements and rehabilitation efforts which will not affect the designed capacity or operating \
characteristics of the station(s), to maintain the station(s) reliability, safety and compliance with
regulatory requirements, except as specifically authorized pursuant to paragraph 4, below.
4. Capital Improvement Budgets.^ EWA shall not _be jesponsjble to prepar_e_qr-^ v
execute capital budgets for the improvement, expansion and/or upgrades of the Pump Stations. V
However, EWA may make suggestions regarding improvements which it believes are necessary or x
desirable. To the extent such improvements are expected to require an expenditure of less than $50,000
CARLSBAD and VISTA may request that such improvements be included in the capital acquisitions
budgets for implementation by EWA; however, EWA shall have no obligation to accept responsibility for
budgeting or undertaking such improvements.
Formatted: Font: Calibri, 10 pt, Font color:
Black
| Formatted: Font: Calibri
Formatted: Font: Calibri
Formatted: Font: Calibri
Formatted: Right
Formatted: Font: Calibri, 10 pt, Fontcolor:
Black
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Indent: Left: 0", First line: 1"
N | Formatted: No underline
Formatted: No underline
-5.A Remote Facility Emergency Reserve shall be budgeted and
collected from CARLSBAD and VISTA in the same manner as provided Joint Facilities, as that term is
defined in the RBA, and in accordance with the EWA Financial Reserve Policy adopted pursuant to
Resolution 08-9 as may, from time to time, be amended by resolution of-the EWA Board of Directors.
This Emergency Reserve will only be utilized upon written request by the EWA if an event occurs at the
Pump Stations outside normal operations and maintenance.
& Following opproval by tho EWA Board of Directors, tho estimated operating and capital
acquisitions budgets shall bo forwarded to CARLSBAD and VISTA for approval. Tho recommended
budgets shall bo doomed effective upon tho receipt by EWA of a certified copy of an approving
resolution by CARLSBAD and VISTA. Until such time as formal approval has boon received from
CARLSBAD and VISTA the c^timjtcd budcct~ -hall constitute merely proposed budccts subject to
operate and maintain tho Pump Stations using tho previous fiscal year budget figures, provided that
no budget is approved prior to tho ond of tho current fiscal year, EWA shall have no obligation to
continue to provide services horoundor after tho close of tho fiscal year.
Formatted: PCHS Body Text, Indent: First line:
0"
Formatted: Heading 2, Indent: Left: 0", Tab
stops: -2.56", Left
» [ Formatted: Left, Indent: First line: 0"
:_PAYMENT OF EXPENSES^ -^ - -{ Formatted; Font: Bold, Underline
A. For the purposes of this Memorandum, responsibility for expenses incurred by EWA
related to the Buena Vista Pump Station shall be allocated 10.4% to CARLSBAD and 89.6% to VISTA; and
responsibility for the Agua Hedionda Pump Station shall be allocated 30.9% to CARLSBAD and 69.1% 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.
B. CARLSBAD and VISTA shall pay their portion of estimated and actual costs in
conformance with the provisions set forth in Section 13 of the RBA. To the extent any operating reserve
- 3 oflT;-
] Formatted: Centered, Indent: First line: 0"
[Formatted: Font: Bold, Underline
Formatted: Font: Bold
/, { Formatted: Font: Bold
•£». - - - Formatted: Font: Calibri, 10 pt, Font color:
>'- ^ Black
Revision Date:^ej3temberj8, jOlOSoptgrnbgr^22,_2010Soptcjr|bor_3jL2jlOJuno 9,_2plOApril 13, 2010 \\0 ~( Formatted: Font: Calibri
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.
C In accordance with the RBA, the failure by one of the Parties, CARLSBAD or VISTA, to
pay budgeted expenses shall not relieve the other Party of its obligations to pay its proportional share.
ARTICLE 4: ACCOUNTING
Formatted: Font: Calibri
Formatted: Font: Calibri
I Formatted: Right
Formatted: Font: Calibri, 10 pt, Fontcolor:
Black
Formatted: Font: Calibri, 10 pt, Font color:
Black
\ Formatted; Centered, Indent: First line: 0"
' ~ -{ Formatted: Font: Bold, Underline
EWA shall maintain full financial records showing all expenses associated with or related to the work* [ Formatted; Heading 2
covered hereby in accordance with practices established by or consistent with those utilized by the
Controller of the State of California for like public agencies. Concurrently with the annual independent
financial audit of the EWA, EWA's auditor shall contract with a certified public accountant to make an
annual independent audit of such accounts and records. The minimum requirements of the audit shall
be those prescribed by the State Controller for special districts under Section 26909 of the California
Government Code and the audit shall conform to accounting principles generally accepted in the United
States of America, the RED and the RBA. A report of the audit shall be filed as a public record with each
of the member agencies and with the San Diego County Auditor within 30 days of its completion. In
accordance with the laws of the State of California and the RBA, such report shall be filed within 12
months of the end of the fiscal year under examination. CARLSBAD and VISTA reserve the right to audit
all financial records and accounts.
ARTICLE 5: PERMITTING
^\s the joint pwne/s of the Pump Stations,_CARLS_BAp_and VISTA retain by operation of lawjthe ultimate
authority and responsibility for regulatory permits and reporting activities related to the Pump Stations.
EWA shall work directly with CARLSBAD and VISTA and with all competent permitting authorities to
ensure the timely issuance, amendment, and renewal of any regulatory permit required by the State of
California related to the operation and/or maintenance of the Pump Stations including, but not limited
to the Regional Water Quality Control Board and the San Diego Air Pollution Control District, and/or by
the government of the United States of America. Except as otherwise agreed upon by all Parties in
writing, CARLSBAD and VISTA shall be responsible for all costs related to the issuance, amendment or
renewal of any and all regulatory permit(s) required to operate and maintain Pump Stations.
' Formatted: Font: Bold, Underline
"{ Formatted: Centered, Indent: First line: 0
~[ Formatted: Font: Bold
\ Formatted: Font: Bold,, Underline
'f Formatted: Font: Not Bold
ARTICLE 6^ LIABILITY *-.,- -{ Formatted: Font: Bold, Underline
A. 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 or claimed to have arisen out of any act or
omission by EWA related to this MOU, other than actual intentional or willful misconduct of an EWA
employee, officer or agent not covered by the insurance required in Article VIII. The Buena Sanitation
District, the Leucadia Wastewater District, the Vallecitos Water District, and the City of Encinitas
currently have no ownership interest in the Pump Stations.
B. CARLSBAD and VISTA also agree to hold harmless and defend such agencies and EWA,
their directors, officers, agents, and employees with respect to claim or legal proceedings or judgment
- 4 of 17-
Formatted: Centered, Indent: First line: 0"
Formatted: Font: Bold
Formatted: Font: Bold
1
^ef:tAdrnin110-899_5.5 „ - -Formatted: Font: Calibri, 10 pt, Fontcolor:
Black
Revision Date:£e_ptember_28._2giOSectGnribgr 22._201(gqptqrnbor_2_2._2piqiuno 9._2010April 13. 2010 \"^ *{ Formatted: Font: Calibri
made, filed, or presented against the foregoing, by reason of CARLSBAD or VISTA's, or their officers', > \\ f Formatted: Font- Calibri
agents', or employees' negligence, intentional or willful misconduct regarding the operation and • x
maintenance of said Pump Stations during the term of this MOU.Formatted: Font: Calibri
I Formatted: Right
ARTICLE 7: PUBLIC INFORMATION
A. ^General Operations. Except as pr_oyided_ in paragraph C of this_Art|de_y_ll± CARJ.SBAD 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 sole responsibility of
CARLSBAD and VISTA. EWA shall forward all media requests for information, except records requested
under the Public Records Act, to the VISTA and CARLSBAD city managers or designees to respond to such
inquiries. Notwithstanding the foregoing provision, VISTA and CARLSBAD may respond independently to
any request for public information in situations relating to general operations of the Pump Stations.
CARLSBAD and VISTA shall be notified of any request for public records associated with the Pump
Stations.
B. 1E£neL§en(i!e-si The Parties agree_to participate jn an emergency driN jt least annually,
scheduled by EWA, to establish, test and refine emergency protocols for the Pump Stations, including
written emergency public information protocols for addressing public inquiries.
C. Spokespersons. EWA shall annually review and distribute the specific protocols for the
provision of public information during emergencies as described in Exhibit 3 to the Parties following the
emergency drill. The emergency public information protocols shall be consistent with this Article VII.
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 should an
emergency occur. EWA staff shall confer with the spokespersons for VISTA and CARLSBAD to implement
the public information protocol. 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, the EWA General Manager or his/her
designee may release such information to the public as necessary with the approval of both VISTA and
CARLSBAD.
ARTICLE 8: INSURANCE
A. Throughout the term of this MOU, as part of the annual operations and maintenance
budgets, CARLSBAD and VISTA shall pay for and EWA shall maintain in full force and effect insurance in
connection with the Pump Stations and related to the services provided under the authority of this
MOU. This insurance shall include no less than general liability coverage in the amount of $1,000,000
per occurrence for bodily injury, personal injury and property damage, and workers' compensation
coverage with limits as required by the California Labor Code.
B. 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. If CARLSBAD
and VISTA determine it unnecessary that EWA obtain such property insurance, and boiler and machinery
insurance, CARLSBAD and VISTA shall provide applicable proof of coverage to EWA for the Pump
Stations. Any property insurance obtained by EWA for the Pump Stations shall name CARLSBAD and
VISTA as additional insureds in accordance with the respective ownership interests of CARLSBAD and
VISTA.
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Font: Calibri, 10 pt, Font color:
Black
I Formatted: Font: Calibri, Bold, Underline
[ Formatted: Centered
Formatted: No underline
. - \ Formatted: No underline
[ Formatted: Centered
Formatted: Font: Bold
Formatted: Font: Bold
Formatted: Font: Calibri, 10 pt, Fontcolor:
Black
Revision Date:^eptember_28,_2gipSqptombgrjj,J?giOSqptOTbor_2_2L2j)luJuno 0,_2010April j.3, 2010 \x\^ '{Formatted: Font: Calibri
\ \ x t Formatted: Font: CalibriC. General liability coverage obtained by EWA shall name all EWA member agencies and
CARLSBAD and VISTA as additional insureds under the California Sanitation Risk Management
Association ("CSRMA") memorandum of coverage. EWA will provide CARLSBAD and VISTA evidence of
insurance coverage purchased and maintained throughout the term of the MOU and noticed as per
Article XII.
D. CARLSBAD and VISTA acknowledge that EWA participates in and generally obtains
coverage through CSRMA, and that CSRMA does not offer flood or earthquake coverage. The aforesaid
insurance shall in no manner limit the indemnity provisions set forth in this MOUof Article VI horoof.
E. This insurance coverage shall be primary insurance as respects CARLSBAD and VISTA and
their officials, employees and volunteers. Any insurance or self-insurance maintained by CARLSBAD and
VISTA, its officials, employees or volunteers shall be in excess of this insurance and shall not contribute
with it; provided that CARLSBAD and VISTA shall be responsible for satisfaction of any deductible or self
insured retention due under EWA's coverage.
ARTICLE 9: DISCLAIMERS
A.
Stations-;.
EWA shall not be involved in setting or collecting any capacity or user fees for the Pump
Formatted: Font: Calibri
Formatted: Right
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Font: Calibri, 10 pt, Font color:
Black
>' ' "{ Formatted: Font: Calibri, Bold, Underline
"( Formatted; Centered
B. EWA shall not be responsible for any defects, omissions 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.
C. If it becomes evident that a Pump Station overflow may occur, EWA will endeavor to
contact the owners to make the decision where the overflow will be allowed to occur.
D. In the event of an overflow inside the fence line of a Pump Station, EWA will make the
initial contact with any regulatory agency, per any applicable permitting requirements, within the
required notification time specified in any applicable permit or permits, and shall prepare, or cause to be
prepared, a written Sanitary Sewer Overflow Report in conformance with all applicable permit
requirements, on behalf of the owners, and not on its own behalf.
E. In the event of a regulatory permit violation resulting from operation or maintenance of
the Pump Stations, EWA shall make the initial contact with the regulatory agency having jurisdiction
over the Pump Stations as specified in the permit. EWA shall, within the required notification time,
prepare or cause to be prepared, a written report on behalf of CARLSBAD and VISTA. CARLSBAD and
VISTA shall review and comment on the content of the written report prior to submittal by EWA.
F. EWA shall be responsible for developing, securing CARLSBAD and VISTA acceptance, and
maintaining Sanitary Sewer Overflow Response Plans (SSORPs) for the Pump Stations ' spill response
plan(s) as_required by any compotontapplicable regulatory agoncyreeulation or permit. EWA shall
provide such SSORPs Pump Stotiono spill response plans to CARLSBAD and VISTA City Managers or
dosignoos for approval. CARLSBAD and VISTA shall provide written confirmation to the EWA General
Manager that the SSORPs submitted for approval are either acceptable or not acceptable. Where VISTA
and CARLSBAD determine that an SSORP submitted for approval by EWA is not acceptable. VISTA and
Formatted: Font: Bold
f { Formatted: Font: Bold
JRef:4A_dmin1lp-899_5.7. , _ - -Formatted: Font: Calibri, 10 pt, Font color:
Black
Revision Date:^ej3ternber_28,jOH)Soj3to^^ •[ Formatted: Font: Calibri
CARLSBAD shall make their best effort to specifically identify errors or omissions in the SSORP as \\V j Formatted: Font- Calibri
submitted by EWA and to recommend specific amendments to address the errors or omissions V Vr!,, Formatted: Font: Calibriidentified. EWA shall comply with such plans on behalf of CARLSBAD and VISTA as to the Pump Stations. > ' 0 _
Except as set forth in this paragraph, however, EWA shall have no responsibility for maintaining or v ^ orma ' '9
carrying out the spill response plans of CARLSBAD or VISTA collection systems.
G. EWA also shall make good faith efforts to comply with all regulatory requirements
imposed on the owners which are applicable to the Pump Stations. CARLSBAD and VISTA shall promptly
advise EWA if or when there are new applicable requirements or when applicable requirements change.
EWA shall have no obligation to seek any amendments to such requirements.
ARTICLE 10: DURATION OF MEMORANDUM; TERMINATION
A. This Memorandum shall remain in effect and shall continue from year to year unless any
Party hereto gives not less than 180 days written notice prior to the commencement of any fiscal year of
its intent to terminate this MOD.
B. In the event of termination of this MOU, the Parties acknowledge that they will continue
to be bound solely by the provisions of the RBA and RED, as each may be amended from time to time.
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Font: Calibri, 10 pt, Fontcolor:
Black
{ Formatted: Font: Bold
/^Formatted: Font: Bold
-7 of 17- /
Admm.l-8995,Formatted: Font: Calibri, 10 pt, Fontcolor:
Black
Revision Date:^ejternber_28,_2giJ3SqptojTij)orj2,^2giOSqpjojT^bor_22L2piqjuno 9,^2plOApril 13, JOIO \\^ -[ Formatted: Font: Calibri
ARTICLE 11: WARRANTS AND REPRESENTATIONS Formatted: Font: Calibri
CARLSBAD and VISTA warrant to EWA that:
A. 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.
B. Except as provided in the RBA, 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.
ARTICLE 12: NOTICES
Formatted: Font: Calibri
Formatted: Right
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Font: Calibri, 10 pt, Font color:
Black
[ Formatted: Font: Calibri, Bold, Underline
[ Formatted: Centered
[ Formatted: Indent: First line: 0"
_______________________________
A. CARLSBAD's point of contact for issues related to the implementation of this MOD is the
Carlsbad City Manager. VISTA's point of contact for issues related to the implementation of this MOU is
the Vista City Manager. EWA's point of contact for issues related to the implementation of this MOU is
the EWA General Manager.
B. All notices, statements, demands, requests, consents, approvals, authorizations,
agreements, appointments or designations hereunder shall be given in writing and addressed to:
- \ Formatted: Font: Calibri, Bold, Underline
" ~( Formatted: Centered
To CARLSBAD:
To VISTA:
To EWA:
Carlsbad City Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Vista City Manager
P.O. Box 1988
Vista, CA 92085-1988
EWA General Manager
6200Avenida Encinas
Carlsbad, CA 92011
* [ Formatted: Indent: Left: 0.5"
-{ Formatted; Indent: Left: 1.5"
[ Formatted: Indent: Left: 0.5"
* [ Formatted: Indent: Left: IS'
[ Formatted: Indent: Left: 0.5"
- -( Formatted; Indent: Left: 1.5"
- Formatted:
12 pt
Indent: Left: 1.5", Space After:
* [ Formatted: Space After: 12 pt
» [ Formatted: Centered
ARTICLE 13: DEPUTE RESOLUTION „ , -[ Formatted; Font: Calibri, Bold, Underline
A. EWA, CARLSBAD and VISTA agree that the maintenance of a cooperative and mutually
beneficial relationship between them is an important aspect of this MOU and therefore intend to
provide means for resolving any disputes, claims, or 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.
B. Therefore, except for any claim or action filed by a nonparty to this MOU, any dispute,
claim, or controversy arising with respect to the interpretation of this MOU or the performance of any
-8ofl7-
._ - - -( Formatted: Font: Calibri, Bold, Underline
{ Formatted: Font: Bold
,'\ Formatted: Font: Bold
M
Revision Date:^ej3^ember_28,_20:lpS^ptojTijor_22,_20 x
Party shall be first submitted7 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 (3) non-binding arbitration.
C. 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 MOU, 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 others that a Dispute
exists with respect to this MOU, 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. If, after a reasonable amount of time and effort have elapsed, a resolution of the
Dispute has not been established to the mutual satisfaction of all Parties, any Party may then initiate a
mediation process by serving a written notice of the election to mediate upon the other.
D. In the event the election to mediate a Dispute is invoked by any Party, a request for
mediation shall be filed within 30 days in the San Diego Regional Office of the American Arbitration
Association ("AAA") 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.
Any statements made during mediation shall remain confidential and may not be disclosed without
consent of all participants.
E. In the event mediation does not resolve the Dispute, any Party may then elect
arbitration by providing a written notice of such election to the other Parties. Such request must be
mailed to the other Parties within 30 days following the conclusion of mediation. Upon serving written
notice upon the other Parties, the request for arbitration shall be filed at the AAA and the arbitration
shall be conducted in accordance with the rules 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. The
Parties may agree to be bound by the results of the arbitration and may agree that any award by or
decision of an arbitrator shall be final.
. - - Formatted: Font: Calibri, 10 pt, Font color:
Black
"[ Formatted; Font:
~ —Formatted: Font: Calibri
Formatted: Font: Calibri
Formatted: Right
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Font: Calibri, 10 pt, Font color:
Black
F. Nothing in this procedure shall prohibit the Parties seeking remedies available to them
at law.
G. During the course of any proceeding to resolve a Dispute, the Parties shall continue to
perform any duties or obligations existing under the MOU.
ARTICLE 14: SEVERABILITY
• "f Formatted: Centered
If any one or more of the terms, provisions, 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 15: MODIFICATIONS
Formatted: Font: Calibri, Bold, Underline
/{ Formatted: Centered
[ Formatted: Font: Calibri, Bold, Underline
[ Formatted: Font: Bold
[ Formatted: Font: Bold
Refi Ad mj n .10-8995J.O^Formatted: Font: Calibri, 10 pt, Font color:
Black
Revision Date:^epternber 28, 201LOSc^ptqm_bgr_2j,_2010Sqptqn^bor_2_2,_2plOJuno 9,_2plOAgril 13. 2010 \\v" ~f Formatted: Font: Calibri
This MOU, together with the RBA, contains all of the terms and conditions made between the Parties \\V j Formatted: Font- Calibri
hereto and shall not be altered except by an amendment in writing. V VfT „ I ' ..-,....^ ' ° \\ \ 1 Formatted: Font: Calibri
Formatted: Right
Formatted: Font: Calibri, 10 pt. Fontcolor:
Black
Formatted: Font: Calibri, 10 pt, Fontcolor:
Black
Formatted: Justified
-10 of 17-
Formatted: Font: Bold
Formatted: Font: Bold
^efiAdjnj^.lp^gggsj^Formatted: Font: Calibri, 10 pt, Font color:
Black
Revision Date:^ej3tember_28,_2gij3Soj]tojTiJ3gr_2j^ \s^ •( Formatted: Font: Calibri
x \ <•
Formatted: Font: Calibri
v)\ \\ Formatted: Font: Calibri
AARTICLE 16: SUCCESSION; ASSIGNMENT v \ \ Formatted: Right
\ * \ Formatted: Font: Calibri, 10 pt, Fontcolor:i v \ > Black
The provisions hereof shall be binding upon and shall inure to the benefit of the successors of \ N \ ') ___.. . T, . , , ,, n ... , ... , , . v \ Formatted: Font: Calibri, 10 pt, Font color:the Parties. This Memorandum may not be assigned by any Party without the written consent of the \\ \ B|ack
other Parties.Formatted: Justified
\\ Formatted: Font: Calibri, Bold, Underline
{ Formatted: Font: Calibri, Bold, Underline
ARTICLE 17:16OVERNING LAW , - \ Formatted; Font: Calibri, Bold, Underline
i. -- \ Formatted; Font: Calibri, Bold, Underline
This Memorandum is to be governed by and construed in accordance with the laws of the State
of California.
IN WITNESS WHEREOF, the Parties hereto have caused this MOU to be executed as of the day
and year first above written.
ACITY OF CARLSBAD E_N_qNA_ WASTE WATER AUTHORITY , , - -( Formatted: Font: Bold
By: By:.
Approved as to form Approved as to form
By: By:
CARLSBAD Counsel EWA Counsel
CITY OF VISTA
By:.
Approved as to form
By:
VISTA Counsel
[ Formatted: Centered
Formatted: Font: Bold
Formatted: Font: Bold
Formatted: Font: Calibri, 10 pt, Font color:
Black
Revision Date:^ej)^ernber_28,_201J)Soj3tojTiJ3or_22,_2010SopjojT[bQr_2j,_2piqjunp 9, 2010April 13, 2010 \\xs -[ Formatted: Font: Calibri
insert Exhibit lAHere \\\ f Formatted: Font- Calibri
1 V V>- —• ——Formatted: Font: Calibri
Formatted: Right
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Font: Calibri, 10 pt, Font color:
Black
( Formatted: Font: Bold
Formatted: Font: Bold
Formatted: Font: Bold
Formatted: Font: Calibri, 10 pt, Font color:
Black
Revision Date^ej^ernbe^g^IO^QScjJtojTibg^j^OlOSoptqn^bor^22^2plOJunp 9,L2010Apnl 13, 2010 \\v" j Formatted: Font: Calibri
Jnsert Exhibit IB ^lere
\1 Formatted: Font: Calibri
Formatted: Font: Calibri
Formatted: Right
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Font: Bold
Formatted: Centered
-13 of!7-
Formatted: Font: Bold
Formatted: Font: Bold
,- Formatted: Font: Calibri, 10 pt. Font color:
Black
Revision Date:^ej]tember_28,_2g]p^ptOjTij)or_22,_2giOSqpjc^m^bQr_2_2,_2plOJuno 9,_20irjApril 13, JOIO^
.Exhibit A2 *
Scope of Work
1. The Buena Vista Pump Station (BVPS) and Agua Hedionda Pump Station (AHPS),
collectively referred to as the "pump stations", shall be defined as:
All structures and mechanical systems as identified on Exhibits 1(A) and 1(B) that
are specifically related to the pumping of wastewater to the Encina Water Pollution
Control Facility (EWPCF). In addition, relating to the BVPS, EWA shall also be responsible
for operation and maintenance activities associated with the off-site air release valves.
Incorporated for reference purposes are Exhibits 1(A) & 1(B), which detail the pump
station's wet well and control room, as well as providing an index for the pump station
site plans.
2. EWA shall be responsible for all tasks needed to operate and maintain the pump
stations. These tasks shall be performed within the annual operating budgets and shall
include:
A. Operation, maintenance, and monitoring of the pump stations 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 Memorandum of Understanding (MOU) for Operation and Maintenance of
the pump stations. Operation and maintenance of the pump stations shall be
coordinated with the operation and maintenance of the EWPCF, such that EWA
attempts to provide the CITY with as cost-effective operation as possible, while
maintaining the pump stations' reliability;
B. Development and execution of contracts in connection with the operation and
maintenance of the pump stations;
C. Employment of agents and employees to operate, maintain, administer, and
manage the pump stations;
D. Preparation of annual operating and annual capital acquisitions budgets;
E. Provision of financial and audit services for services provided by EWA hereunder.
F. Acquisition, holding, and disposition of such equipment as may be reasonable
necessary to the operation, maintenance, administration, and management of
the pump stations including, but not limited to; risk assessment and budget
performance and monthly reports.
-14 of 17-
'[ Formatted: Font: Calibri
' ^ f Formatted! Font: Calibri
Formatted: Font: Calibri
I Formatted: Right
Formatted: Font: Calibri, 10 pt, Fontcolor:
Black
Formatted: Font: Calibri, 10 pt. Fontcolor:
Black
'\( Formatted: Font: Bold
Formatted: Centered
Formatted: Font: Bold
Formatted: Font: Bold
/^Formatted: Font: Bold
n
Formatted: Font: Calibri, 10 pt, Font color:
Black
Revision Date:^eptember_28,jgipSqptornbgrJij.^_M10Soptqm^bor_2_2,_2plOJuno 9,_2010April 13, 2010 \v\ •{Formatted: Font: Calibri
G. Filing of reports associated with the operation, maintenance, administration, and
management of the pump stations;
H. Routine inspection and maintenance of the air release and main line valves on
the Buena Vista Pump Station force main, notwithstanding that such
appurtenances are located outside of the fenced area of the pump station.
3. The CITY shall be responsible for:
A. The pipelines, drains, overflows and other appurtences as identified as identified
in Exhibits 1(A) and 1(B);
B. The roadway and paved area within the fence line(s) of the pump stations, as
identified in Exhibits 1(A) and 1(B).
C. Any other structure, system or appurtenance not specifically addressed herein.
Formatted: Font: Calibri
Formatted: Font: Calibri
Formatted: Right
Formatted: Font: Calibri, 10 pt, Fontcolor:
Black
Formatted: Font: Calibri, 10 pt, Fontcolor:
Black
• -{ Formatted; Centered
-15 of 17-
Formatted: Font: Bold
Formatted: Font: Bold
jtefiAd_mjn_.l_0-8995J.6 _. - -Formatted: Font: Calibri, 10 pt, Font color:
Black
Revision Date:^eptember >8. jgiJSc^ptejTi_bor_2j,_2plOSqptQ_mbor_2_2L2_010_Juno 9._201QApnl 13. 2010 \\sv -| Formatted; Font: CalibrT
^Exhibit 3 t ° ^-'
Public Information Protocol
Formatted: Font: Calibri
Formatted: Font: Calibri
1. EWA will make a unilateral determination to implement the Incident Command System*^ \
(ICS) in response to an emergency incident at the AHPS/BVPS Facilities EWA maintains and \ v
operates under this Memorandum of Understanding-. As soon as practical, EWA, Carlsbad and \
Vista will form a Unified Command and designate a single public information point of contact for
the incident.
2. EWA will notify the Carlsbad and Vista City ManaRora Member Agency Manager's Group
Representative (MAM Representative) within 30 minutes of establishing the ICS in response to an
emergency incident at a Facility.
Formatted: Right
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Font: Bold
Formatted: Indent: Left: 0", First line: 0",
Tab stops: Not at 0.5"
3.CARLSBAD and VISTA will designate a single point of contact (designee) for the emergency.
4. Designee will make their best effort to respond to the scene of the emergency within one»-
hour after EWA makes initial contact pursuant to paragraph 2.
Formatted: Indent: Left: 0", First line: 0",
Tab stops: Not at 0.5"
5. For the purpose of providing public information related to an emergency incident at the
stations, all communication between EWA and CARLSBAD and VISTA will be directed through the
designee.
6. Prior to the release of any public information related to the emergency incident, EWA and
the designee will confer and agree upon the:
a. form (i.e., verbal or written);
b. forum (i.e., place and timing);
c. format (prepared or extemporaneous, limits on Q & A, letterhead);
d. content of the release; and,
e. person who will act as the owner agencies' spokesperson
7. A spokesperson addressing the media in response to an inquiry in any way related to an
emergency incident at the stations shall include in teegm-their address by moking the following
Gtatomont information:
"The (name of facility) is owned by the City of Carlsbad and City of Vista. The Encina
Wastewater Authority is the contract operator of the facility. I am (name) (position)
(agency) and have been designated spokesperson for the owner. Encina
Wastewater Authority staff has implemented the Incident Command System (and if
applicable ... and have implemented the Sanitary Sewer Overflow Response Plan
developed for (name of facility)). The Encina Wastewater Authority is coordinating
all efforts with the owners and other responding agencies. We are still in the early
stages of response and fact finding. You can expect a press briefing on this matter
shortly."
Formatted: Font: Bold
Formatted: Font: Bold
-16 of 17-
iRef:lAdjnjn_.lJ>8995J1l_7 _ - -Formatted: Font: Calibri, 10 pt, Font color:
Black
Revision Date:^ej)tember_28._2g]LOScjitojTiJ3gr_22,_2plOSoptc^rn^bor_aj, 2jlOJuno 9._2010April j.3, 2010 ^\ "( Formatted: Font: Calibri
Formatted: Font: Calibri
\ M Formatted: Font: Calibri
Formatted: Right
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Font: Calibri, 10 pt, Font color:
Black
Formatted: Body Text Indent, Indent: Left:
0.75", Tab stops: -3.69", Left
| Formatted; Font: Bold
Formatted: Font: Bold
- 17 of 17-
MEMORANDUM OF UNDERSTANDING FOR
OPERATION AND MAINTENANCE
OF BUENA VISTA PUMP STATION AND AGUA HEDIONDA PUMP STATION
Ref: Admin.08-8995
This Memorandum of Understanding is entered into this day of , 2010,
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 (collectively referred to as "Parties" and
individually referred to as "Party"), with respect to the following facts:
RECITALS
WHEREAS, CARLSBAD and VISTA jointly own the Buena Vista Pump Station and Agua Hedionda
Pump Station, including the force mains associated with such stations, their valves and appurtenances,
and certain gravity sewer lines; and
WHEREAS, CARLSBAD and VISTA entered into an agreement for the operation and maintenance
of the Buena Vista and Agua Hedionda pump stations and now CARLSBAD and VISTA desire to rescind
that agreement and replace it with a new agreement; and,
WHEREAS, for purposes of this Memorandum of Understanding, the Buena Vista and Agua
Hedionda pump stations and related facilities located inside the fencing surrounding the Buena Vista
Pump Station, as shown on Exhibit 1A, and Agua Hedionda Pump Station, as shown on Exhibit IB, shall
collectively be referred to as the "Pump Stations" and individually referred to as "Pump Station;" and,
WHEREAS, Section 12.1.2 of the Revised Basic Agreement for Ownership, Operation and
Maintenance of a Joint Sewerage System ("RBA") provides that EWA shall operate and maintain, at the
expense of VISTA and CARLSBAD, the Pump Stations (formerly referred to as Units C and G of the Joint
System), within an annual estimated budget prepared by EWA and approved by VISTA and CARLSBAD;
and,
WHEREAS, EWA is currently operating the Pump Stations to the satisfaction of CARLSBAD and
VISTA; and,
WHEREAS, CARLSBAD and VISTA desire EWA to continue to operate and maintain the Pump
Stations, and EWA 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 set forth the following Memorandum of Understanding ("MOU")
ARTICLE 1: SCOPE OF WORK
A. EWA Scope of Work. Specific services to be provided by EWA hereunder are detailed in
Exhibit 2, Scope of Work for Annual Operation and Maintenance ("O&M") Services. In the event of any
conflict between the provisions of Exhibit 2 and this MOU, the terms of the MOU 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.
Ref: Admin.10-8995.2
Revision Date: November 29, 2010
B. Lead Agency on Capital Improvement Planning and Execution. Except as otherwise
agreed by the Owner Agencies, CARLSBAD shall be responsible for the planning, design, bidding,
construction management and supervision of all capital improvements to 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 and
maintenance 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.
ARTICLE 2: BUDGETING
A. 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. These expenses shall include but not
be limited to such things as salaries and benefits, building and equipment maintenance costs, utilities,
chemicals, permit and permit amendment costs, monitoring, accounting and auditing costs,
administration costs, legal services, overhead costs, insurance, and other costs as required for operation
and maintenance of the Pump Stations in conformance with this MOD.
B. 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 accounting
principles generally accepted in the United States of America, the Revised Establishment Document for
the Encina Wastewater Authority ("RED") and the RBA, as follows:
1. Generally. In accordance with the RBA and not later than May 1 of each year,
EWA shall prepare, concurrently with the preparation of the EWA Operation & Maintenance Budget,
estimated budgets for the amount of money required to operate and maintain the Pump Stations.
2. Operating and Maintenance Budgets. The operating and maintenance budgets
shall be separate for (a) the Buena Vista Pump Station and (b) the Agua Hedionda Pump Station, and
each budget shall include the estimated amount of money required for operation and maintenance
including, but not limited to: salaries and benefits, building and equipment maintenance costs, utilities,
chemicals, permits and permit amendment costs, accounting and auditing costs, administration costs,
legal services, overhead costs, insurance and other costs as required for operation and maintenance in
conformance with this MOU.
3. Planned Asset Replacement and Capital Acquisition Budgets. Concurrently with
the preparation of the Encina Water Pollution Control Facility (EWPCF) Capital Improvement Program
Budget and not later than May 1 of each year, EWA shall also prepare estimated Capital Acquisitions and
Planned Asset Replacement budgets (hereinafter referred to as capital acquisition budgets) as part of
the annual budget process for the Pump Stations. The capital acquisition budgets shall be for
replacements and rehabilitation efforts which will not affect the designed capacity or operating
characteristics of the station(s), to maintain the station(s) reliability, safety and compliance with
regulatory requirements, except as specifically authorized pursuant to paragraph 4, below.
-2 of 14-
Ref: Admin.10-8995.3
Revision Date: November 29, 2010
4. Capital Improvement Budgets. EWA shall not be responsible to prepare or
execute 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. To the extent such improvements are expected to require an expenditure of less than
$50,000, CARLSBAD and VISTA may request that such improvements be included in the capital
acquisitions budgets for implementation by EWA; however, EWA shall have no obligation to accept
responsibility for budgeting or undertaking such improvements.
5. A Remote Facility Emergency Reserve of not to exceed $50,000 shall be
budgeted and collected from CARLSBAD and VISTA in the same manner as provided Joint Facilities, as
that term is defined in the RBA, and in accordance with the EWA Financial Reserve Policy. This
Emergency Reserve will only be utilized upon written request by the EWA if an event occurs at the Pump
Stations outside normal operations and maintenance.
ARTICLE 3: PAYMENT OF EXPENSES
A. For the purposes of this Memorandum, responsibility for expenses incurred by EWA
related to the Buena Vista Pump Station shall be allocated 10.4% to CARLSBAD and 89.6% to VISTA; and
responsibility for the Agua Hedionda Pump Station shall be allocated 30.9% to CARLSBAD and 69.1% 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.
B. CARLSBAD and VISTA shall pay their portion of estimated and actual costs in
conformance with the provisions set forth in Section 13 of the RBA. To the extent any remote facility
emergency reserve carried over from the prior fiscal year is insufficient; the deficit amount shall be
billed on October 1.
C. In accordance with the RBA, the failure by one of the Parties, CARLSBAD or VISTA, to
pay budgeted expenses shall not relieve the other Party of its obligations to pay its proportional share.
ARTICLE 4: ACCOUNTING
EWA shall maintain full financial records showing all expenses associated with or related to the work
covered hereby in accordance with practices established by or consistent with those utilized by the
Controller of the State of California for like public agencies. Concurrently with the annual independent
financial audit of the EWA, EWA's auditor shall contract with a certified public accountant to make an
annual independent audit of such accounts and records. The minimum requirements of the audit shall
be those prescribed by the State Controller for special districts under Section 26909 of the California
Government Code and the audit shall conform to accounting principles generally accepted in the United
States of America, the RED and the RBA. A report of the audit shall be filed as a public record with each
of the member agencies and with the San Diego County Auditor within 30 days of its completion. In
accordance with the laws of the State of California and the RBA, such report shall be filed within 12
months of the end of the fiscal year under examination. CARLSBAD and VISTA reserve the right to audit
all financial records and accounts.
-3 of 14-
Ref: Admin.10-8995.4
Revision Date: November 29, 2010
ARTICLE 5: PERMITTING
As the joint owners of the Pump Stations, CARLSBAD and VISTA retain by operation of law the ultimate
authority and responsibility for regulatory permits and reporting activities related to the Pump Stations.
EWA shall work directly with CARLSBAD and VISTA and with all competent permitting authorities to
ensure the timely issuance, amendment, and renewal of any regulatory permit required by the State of
California related to the operation and/or maintenance of the Pump Stations including, but not limited
to the Regional Water Quality Control Board and the San Diego Air Pollution Control District, and/or by
the government of the United States of America. Except as otherwise agreed upon by all Parties in
writing, CARLSBAD and VISTA shall be responsible for all costs related to the issuance, amendment or
renewal of any and all regulatory permit(s) required to operate and maintain Pump Stations.
ARTICLE 6: LIABILITY
A. 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 or claimed to have arisen out of any act or
omission by EWA related to this MOD, other than actual intentional or willful misconduct of an EWA
employee, officer or agent not covered by the insurance required in Article VIII. The Buena Sanitation
District, the Leucadia Wastewater District, the Vallecitos Water District, and the City of Encinitas
currently have no ownership interest in the Pump Stations.
B. CARLSBAD and VISTA also agree to hold harmless and defend such agencies and EWA,
their directors, officers, agents, and employees with respect to claim or legal proceedings or judgment
made, filed, or presented against the foregoing, by reason of CARLSBAD or VISTA's, or their officers',
agents', or employees' negligence, intentional or willful misconduct regarding the operation and
maintenance of said Pump Stations during the term of this MOD.
ARTICLE 7: PUBLIC INFORMATION
A. General Operations. Except as provided in paragraph C of this Article VII, 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 sole responsibility of
CARLSBAD and VISTA. EWA shall forward all media requests for information, except records requested
under the Public Records Act, to the VISTA and CARLSBAD city managers or designees to respond to such
inquiries. Notwithstanding the foregoing provision, VISTA and CARLSBAD may respond independently to
any request for public information in situations relating to general operations of the Pump Stations.
CARLSBAD and VISTA shall be notified of any request for public records associated with the Pump
Stations.
B. Emergencies. The Parties agree to participate in an emergency drill at least annually,
scheduled by EWA, to establish, test and refine emergency protocols for the Pump Stations, including
written emergency public information protocols for addressing public inquiries.
C. Spokespersons. EWA shall annually review and distribute the specific protocols for the
provision of public information during emergencies as described in Exhibit 3 to the Parties following the
emergency drill. The emergency public information protocols shall be consistent with this Article VII.
- 4 of 14 -
:A
Ref: Admin.10-8995.5
Revision Date: November 29, 2010
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 should an
emergency occur. EWA staff shall confer with the spokespersons for VISTA and CARLSBAD to implement
the public information protocol. 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, the EWA General Manager or his/her
designee may release such information to the public as necessary with the approval of both VISTA and
CARLSBAD.
ARTICLE 8: INSURANCE
A. Throughout the term of this MOD, as part of the annual operations and maintenance
budgets, CARLSBAD and VISTA shall pay for and EWA shall maintain in full force and effect insurance in
connection with the Pump Stations and related to the services provided under the authority of this
MOD. This insurance shall include no less than general liability coverage in the amount of $1,000,000
per occurrence for bodily injury, personal injury and property damage, and workers' compensation
coverage with limits as required by the California Labor Code.
B. 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. If CARLSBAD
and VISTA determine it unnecessary that EWA obtain such property insurance, and boiler and machinery
insurance, CARLSBAD and VISTA shall provide applicable proof of coverage to EWA for the Pump
Stations. Any property insurance obtained by EWA for the Pump Stations shall name CARLSBAD and
VISTA as additional insureds in accordance with the respective ownership interests of CARLSBAD and
VISTA.
C. General liability coverage obtained by EWA shall name all EWA member agencies and
CARLSBAD and VISTA as additional insureds under the California Sanitation Risk Management
Association ("CSRMA") memorandum of coverage. EWA will provide CARLSBAD and VISTA evidence of
insurance coverage purchased and maintained throughout the term of the MOD and noticed as per
Article XII.
D. CARLSBAD and VISTA acknowledge that EWA participates in and generally obtains
coverage through CSRMA, and that CSRMA does not offer flood or earthquake coverage. The aforesaid
insurance shall in no manner limit the indemnity provisions set forth in this MOD.
E. This insurance coverage shall be primary insurance as respects CARLSBAD and VISTA and
their officials, employees and volunteers. Any insurance or self-insurance maintained by CARLSBAD and
VISTA, its officials, employees or volunteers shall be in excess of this insurance and shall not contribute
with it; provided that CARLSBAD and VISTA shall be responsible for satisfaction of any deductible or self
insured retention due under EWA's coverage.
ARTICLE 9: DISCLAIMERS
A. EWA shall not be involved in setting or collecting any capacity or user fees for the Pump
Stations.
- 5 of 14 -
Ref: Admin.10-8995.6
Revision Date: November 29, 2010
B. EWA shall not be responsible for any defects, omissions 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.
C. If it becomes evident that a Pump Station overflow may occur, EWA will endeavor to
contact the owners to make the decision where the overflow will be allowed to occur.
D. In the event of an overflow inside the fence line of a Pump Station, EWA will make the
initial contact with any regulatory agency, per any applicable permitting requirements, within the
required notification time specified in any applicable permit or permits, and shall prepare, or cause to be
prepared, a written Sanitary Sewer Overflow Report in conformance with all applicable permit
requirements, on behalf of the owners, and not on its own behalf.
E. In the event of a regulatory permit violation resulting from operation or maintenance of
the Pump Stations, EWA shall make the initial contact with the regulatory agency having jurisdiction
over the Pump Stations as specified in the permit. EWA shall, within the required notification time,
prepare or cause to be prepared, a written report on behalf of CARLSBAD and VISTA. CARLSBAD and
VISTA shall review and comment on the content of the written report prior to submittal by EWA.
F. EWA shall be responsible for developing, securing CARLSBAD and VISTA acceptance, and
maintaining Sanitary Sewer Overflow Response Plans (SSORPs) for the Pump Stations as required by any
applicable regulation or permit. EWA shall provide such SSORPs to CARLSBAD and VISTA for approval.
CARLSBAD and VISTA shall provide written confirmation to the EWA General Manager that the SSORPs
submitted for approval are either acceptable or not acceptable. Where VISTA and CARLSBAD determine
that an SSORP submitted for approval by EWA is not acceptable, VISTA and CARLSBAD shall make their
best effort to specifically identify errors or omissions in the SSORP as submitted by EWA and to
recommend specific amendments to address the errors or omissions identified. EWA shall comply with
such plans on behalf of CARLSBAD and VISTA as to the 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 collection systems.
G. EWA also shall make good faith efforts to comply with all regulatory requirements
imposed on the owners which are applicable to the Pump Stations. CARLSBAD and VISTA shall promptly
advise EWA if or when there are new applicable requirements or when applicable requirements change.
EWA shall have no obligation to seek any amendments to such requirements.
ARTICLE 10: DURATION OF MEMORANDUM: TERMINATION
A. This Memorandum shall remain in effect and shall continue from year to year unless any
Party hereto gives not less than 60 days written notice prior to the commencement of any fiscal year of
its intent to terminate this MOD.
B. In the event of termination of this MOD, the Parties acknowledge that they will continue
to be bound solely by the provisions of the RBA and RED, as each may be amended from time to time.
- 6 of 14 -
Ref: Admin.10-8995.7
Revision Date: January 3, 2011
ARTICLE 11: WARRANTS AND REPRESENTATIONS
CARLSBAD and VISTA warrant to EWA that:
A. 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.
B. Except as provided in the RBA, 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.
ARTICLE 12: NOTICES
A. CARLSBAD'S point of contact for issues related to the implementation of this MOD is the
Carlsbad City Manager. VISTA's point of contact for issues related to the implementation of this MOD is
the Vista City Manager. EWA's point of contact for issues related to the implementation of this MOD is
the EWA General Manager.
B. All notices, statements, demands, requests, consents, approvals, authorizations,
agreements, appointments or designations hereunder shall be given in writing and addressed to:
To CARLSBAD: Carlsbad City Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
To VISTA: Vista City Manager
200 Civic Center Drive
Vista, CA 92084
To EWA: EWA General Manager
6200Avenida Encinas
Carlsbad, CA 92011
ARTICLE 13: DISPUTE RESOLUTION
A. EWA, CARLSBAD and VISTA agree that the maintenance of a cooperative and mutually
beneficial relationship between them is an important aspect of this MOD and therefore intend to
provide means for resolving any disputes, claims, or 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.
B. Therefore, except for any claim or action filed by a nonparty to this MOD, any dispute,
claim, or controversy arising with respect to the interpretation of this MOD 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 (3) non-binding arbitration.
- 7 of 14 -
Ref: Admin.10-8995.8
Revision Date: November 29, 2010
C. 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 MOU, 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 others that a Dispute
exists with respect to this MOU, 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. If, after a reasonable amount of time and effort have elapsed, a resolution of the
Dispute has not been established to the mutual satisfaction of all Parties, any Party may then initiate a
mediation process by serving a written notice of the election to mediate upon the other.
D. In the event the election to mediate a Dispute is invoked by any Party, a request for
mediation shall be filed within 30 days in the San Diego Regional Office of the American Arbitration
Association ("AAA") 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.
Any statements made during mediation shall remain confidential and may not be disclosed without
consent of all participants.
E. In the event mediation does not resolve the Dispute, any Party may then elect
arbitration by providing a written notice of such election to the other Parties. Such request must be
mailed to the other Parties within 30 days following the conclusion of mediation. Upon serving written
notice upon the other Parties, the request for arbitration shall be filed at the AAA and the arbitration
shall be conducted in accordance with the rules 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. The
Parties may agree to be bound by the results of the arbitration and may agree that any award by or
decision of an arbitrator shall be final.
F. Nothing in this procedure shall prohibit the Parties seeking remedies available to them
at law.
G. During the course of any proceeding to resolve a Dispute, the Parties shall continue to
perform any duties or obligations existing under the MOU.
ARTICLE 14: SEVERABILITY
If any one or more of the terms, provisions, 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 15: MODIFICATIONS
This MOU, together with the RBA, contains all of the terms and conditions made between the Parties
hereto and shall not be altered except by an amendment in writing.
- 8 of 14 -
Ref: Admin.10-8995.9
Revision Date: November 29, 2010
ARTICLE 16: SUCCESSION: ASSIGNMENT
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 17: GOVERNING LAW
This Memorandum is to be governed by and construed in accordance with the laws of the State
of California.
IN WITNESS WHEREOF, the Parties hereto have caused this MOU to be executed as of the day
and year first above written.
CITY OF CARLSBAD
Approved as to form
By= ]) a i
CARLSBAD Counsel
ENCINA WASTEWATER AUTHORITY
By:.
Approved as to form
By:
EWA Counsel
CITY OF VISTA
By:.
Approved as to form
By:
VISTA Counsel
- 9 of 14 -
Ref: Admin.10-8995.10
Revision Date: November 29, 2010
10 20 30
' LEGEND
EWA MAINTAINED
—— OWNER MAINTAINED
Ref: Admin.08-8995h
BUENA VISTA PUMP STATION
EXHIBIT 1A
-10 of 14 -
Ref: Admin.10-8995.11
Revision Date: November 29, 201O
5'b00
COto<o01 I!z o
momza
I>
Img
mg
x §
CD
O
-11 of 14 -
Ref: Admin.10-8995.12
Revision Date: November 29, 2010
Exhibit 2
Scope of Work
1. The Buena Vista Pump Station (BVPS) and Agua Hedionda Pump Station (AHPS), collectively
referred to as the "pump stations", shall be defined as:
All structures and mechanical systems as identified on Exhibits 1(A) and 1(B) that are specifically
related to the pumping of wastewaterto the Encina Water Pollution Control Facility (EWPCF). In
addition, relating to the BVPS, EWA shall also be responsible for operation and maintenance
activities associated with the off-site air release valve directly adjacent to the pump station.
Incorporated for reference purposes are Exhibits 1(A) & 1(6), which detail the pump station's
wet well and control room, as well as providing an index for the pump station site plans.
2. EWA shall be responsible for all tasks needed to operate and maintain the pump stations. These
tasks shall be performed within the annual operating budgets and shall include:
A. Operation, maintenance, and monitoring of the pump stations 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 Memorandum of
Understanding (MOD) for Operation and Maintenance of the pump stations. Operation
and maintenance of the pump stations shall be 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 the pump stations'
reliability;
B. Development and execution of contracts in connection with the operation and
maintenance of the pump stations;
C. Employment of agents and employees to operate, maintain, administer, and manage
the pump stations;
D. Preparation of annual operating and annual capital acquisitions budgets;
E. Provision of financial and audit services for services provided by EWA hereunder.
F. Acquisition, holding, and disposition of such equipment as may be reasonable necessary
to the operation, maintenance, administration, and management of the pump stations
including, but not limited to; risk assessment and budget performance and monthly
reports.
G. Filing of reports associated with the operation, maintenance, administration, and
management of the pump stations;
H. Routine inspection and maintenance of the air release and main line valves on the
Buena Vista Pump Station force main, notwithstanding that such appurtenances are
located outside of the fenced area of the pump station.
-12 of 14 -
Ref: Admin.10-8995.13
Revision Date: November 29, 2010
3. CARLSBAD and VISTA shall be responsible for:
A. The pipelines, drains, overflows and other appurtences as identified in Exhibits 1(A) and
KB);
B. The roadway and paved area within the fence line(s) of the pump stations, as identified
in Exhibits 1(A) and 1(B).
C. Any other structure, system or appurtenance not specifically addressed herein.
-13 of 14-
Ref: Admin.10-8995.14
Revision Date: November 29, 201O
Exhibit 3
Public Information Protocol
1. EWA will make a unilateral determination to implement the Incident Command System (ICS) in
response to an emergency incident at the AHPS/BVPS Facilities EWA maintains and operates under
this Memorandum of Understanding. As soon as practical, EWA, CARLSBAD and VISTA will form a
Unified Command and designate a single public information point of contact for the incident.
2. EWA will notify the Carlsbad and Vista Member Agency Manager's Group Representative (MAM
Representative) within 30 minutes of establishing the ICS in response to an emergency incident at a
Facility.
3. CARLSBAD and VISTA will designate a single point of contact (designee) for the emergency.
4. Designee will make their best effort to respond to the scene of the emergency within one hour
after EWA makes initial contact pursuant to paragraph 2.
5. For the purpose of providing public information related to an emergency incident at the stations, all
communication between EWA, CARLSBAD and VISTA will be directed through the designee.
6. Prior to the release of any public information related to the emergency incident, EWA and the
designee will confer and agree upon the:
a. form (i.e., verbal or written);
b. forum (i.e., place and timing);
c. format (prepared or extemporaneous, limits on Q & A, letterhead);
d. content of the release; and,
e. person who will act as the owner agencies' spokesperson
7. A spokesperson addressing the media in response to an inquiry in any way related to an emergency
incident at the stations shall include in their address the following information:
"The (name of facility) is owned by the City of Carlsbad and City of Vista. The Encina
Wastewater Authority is the contract operator of the facility. I am (name) (position)
(agency) and have been designated spokesperson for the owner. Encina Wastewater
Authority staff has implemented the Incident Command System (and if applicable ... and
have implemented the Sanitary Sewer Overflow Response Plan developed for (name of
facility)). The Encina Wastewater Authority is coordinating all efforts with the owners and
other responding agencies. We are still in the early stages of response and fact finding. You
can expect a press briefing on this matter shortly. "
-14 of 14 -
AGENDA
REPORT
E] CITY COUNCIL
D COMMUNITY DEVELOPMENT COMMISSION
D BUENA SANITATION DISTRICT
D JOINT POWERS FINANCING AUTHORITY
Department: Engineering Item No: C8
Prepared By: Ligeia Heagy. Management Analyst
Lawrence Pierce, City Engineer
Approved By: Rita L. Geldert. City Manager
Meeting Date: October 12. 2010
Agenda Location: Consent Calendar
SUBJECT: MEMORANDUM OF UNDERSTANDING - PUMP STATIONS
RECOMMENDATION: Adopt City Council Resolution No. 2010- , approving a memorandum of
understanding for operation and maintenance of the Buena Vista and Agua Hedionda Pump Stations.
PRIOR ACTION: On May 12,1998, the City Council approved entering into a memorandum of
understanding (MOD) with Encina Wastewater Authority for operation and maintenance of the Buena
Vista and Agua Hedionda pump stations (Vote: 5-0).
On December 17, 1990, the City Council approved entering into a Revised Basic Agreement with the
City of Carlsbad for the purposes of planning, designing, owning, operating, and maintaining a Joint
Sewer System (Vote: 5-0).
STATEMENT ON THE SUBJECT: Sewage from the City of Vista is conveyed to the Encina
Wastewater Treatment Plant via Vista/Carlsbad trunk sewers, the Buena Vista Pump Station and the
Agua Hedionda Pump Station. These pump stations are jointly owned by the cities of Vista and Carlsbad
and the pump stations are operated and maintained by Encina Wastewater Authority staff on a contract
basis.
On July 13,1961, the Vista Sanitation District and the City of Carlsbad entered into a Basic Agreement to
acquire, construct and operate a Joint Sewer System. On December 17,1990, the City of Vista and the
City of Carlsbad entered into a Revised Basic Agreement for the purposes of planning, designing,
owning, operating, and maintaining a Joint Sewer System. On May 12, 1998, the City of Vista entered
into a memorandum of understanding (MOD) with Encina Wastewater Authority for operation and
maintenance of the Buena Vista and Agua Hedionda pump stations.
The MOD has not been updated since 1998. The cities of Vista and Carlsbad desire to update the MOU
for the operation and maintenance of the pump stations in order to incorporate newer and more stringent
operation and emergency response procedures. The new MOU includes refinement of legal
responsibilities, permitting, and public information protocol.
ACTION:
10/12/2010
Clerk/Secretary
C8 1 of 32
MEETING DATE: October 12, 2010 PAGE: 2
SUBJECT: MEMORANDUM OF UNDERSTANDING - PUMP STATIONS
FISCAL IMPACT: There is no direct fiscal impact associated with the staff recommendation. Both the
cities of Vista and Carlsbad presently share their respective operating and maintenance costs for the
pump stations. This MOU memorializes each agency's operational responsibilities.
EXHIBITS:
1. City Council Resolution No. 2010- , approving a memorandum of understanding for operation and
maintenance of the Buena Vista and Agua Hedionda Pump Stations
2. 2010 Memorandum of Understanding
3. 1998 Memorandum of Understanding
10/12/2010 C8 2 of 32
RESOLUTION NO. 2010-
A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF VISTA,
CALIFORNIA, APPROVING A MEMORANDUM OF UNDERSTANDING FOR
OPERATION AND MAINTENANCE OF THE BUENA VISTA AND AGUA HEDIONDA
PUMP STATIONS
The City Council of the chartered City of Vista does resolve as follows:
1. Findings. The City Council hereby finds and declares the following:
A. On July 13,1961, the Vista Sanitation District and the City of Carlsbad entered into a
Basic 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.
B. On December 17,1990, the Cities of Vista and Carlsbad entered into a Revised Basic
Agreement pursuant to Chapter 5 of Division 7 of Title 1 of the California Government Code for the
purposes of planning, designing, owning, operating, and maintaining a Joint Sewer System.
C. The Cities of Vista and Carlsbad jointly own the Buena Vista and the Agua Hedionda
Pump Stations (the "Facilities"), which includes valves and appurtenances that are a part of the
respective sewer collection systems.
D. On May 12,1998, the Cities of Vista and Carlsbad entered into a memorandum of
understanding with Encina Wastewater Authority for operation and maintenance of the Facilities.
E. The Cities of Vista and Carlsbad desire to update the Memorandum of Understanding
for the operation and maintenance of the Facilities in order to incorporate newer and more stringent
operation and emergency response procedures.
2.Action.
A. The Memorandum of Understanding between the City of Vista and the City of Carlsbad
for the operation and maintenance of the Buena Vista and the Agua Hedionda Pump Stations, dated
October 26, 2010, is hereby approved.
B. The Mayor is hereby authorized to execute the Memorandum of Understanding on
behalf of the City.
3. Adoption. PASSED AND ADOPTED by the City Council of the City of Vista at a meeting held on
, 2010, by the following vote:
AYES:
NOES:
ABSTAIN:
APPROVED AS TO FORM:
DAROLD PIEPER, CITY ATTORNEY
MORRIS B. VANCE, MAYOR
ATTEST:
MARCI KILIAN, CITY CLERK
By:.By:.
APPROVED
Martin A. Grover
1750 100410
10/12/2010
EXHIBIT 1
C8 3 of 32
ITY OF CARLSBAD -AGENDA BILL
O
o
o
=3oo
3/24)98
TITLE: APPROVAL OF MOU FOR OPERATION
AND MAINTENANCE OF AGUA HED10NDA
AND BUENA VISTA PUMP STATIONS
RECOMMENDED ACTION:
It is recommended that the City Council adopt Resolution No. 98 '£>$" approving the
Memorandum of Understanding for Operation and Maintenance of Agua Hedionda and Buena
Vista Pump Stations.
ITEM EXPLANATION:
Encina Wastewater Authority (EWA) Revised Basic Agreement (RBA) states that EWA shall
operate the Agua Hedionda and Buena Vista Pump Stations. In response to EWA Board
direction, Carlsbad, Vista and EWA staff developed the proposed Memorandum of
Understanding (MOU). (Attachment 1) In addition to memorializing the operational duties
historically provided by EWA and vesting the city of Vista with the responsibility to implement
capital improvements, the MOU provides for indemnification of the EWA by the owner-agencies;
annual emergency response plan drills; and, protocols for the dissemination of public
information. The facilities maintained by EWA under the proposed MOU are depicted as
exhibits within the MOU.
FISCAL IMPACT:
There is no fiscal impact by approving this MOU. The City of Vista and City of Carlsbad
presently share proportionate operating costs for both pump stations. This MOU memorializes
the operational responsibilities.
EXHIBITS:
1. Resolution No. >o ~ $8 Authorizing the Mayor to Approve the Memorandum of
Understanding for Operation and Maintenance of the Agua Hedionda and Buena Vista
Pump Stations.
2. Memorandum of Understanding.
RESOLUTION NO. 98-88
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A RESPOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR
TO APPROVE MEMORANDUM OF UNDERSTANDING
FOR OPERATION AND MAINTENANCE OF AGUA
HEDIONDA AND BUENA VISTA PUMP STATIONS
WHEREAS, a Memorandum of Understanding has been prepared between the City of
Carlsbad, the City of Vista and the Encina Wastcwater Authority (EWA); and
WHEREAS, the EWA Revised Basic Agreement (RBA) states that EWA shall operate
the Agua Hedionda and Buena Vista Pump Stations; and
WHEREAS, in response to EWA Board direction a Memorandum of Understanding
(MOU) has been developed; and
WHEREAS, this MOU memorializes the operational duties provided by EWA and vests
the City of Vista with the responsibility to implement capital improvements; and
WHEREAS, the MOU also provides for indemnification of the EWA; annual
emergency response plans; and, protocols for the dissemination of public information.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California,
1. That the above recitations are true and correct.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
50
21
22
23
24
25
26
27
28
2. That the Memorandum of Understanding for Operation and Maintenance of
Agua Hedionda and Buena Vista Pump Stations is hereby approved.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council on the
2Ath day of March 11993 by the following vote, to with:
AYES' Council Members Lewis, Finniia, Nygaard, Kulchin and Hall
NOES: None
ABSElsBT: None
CLA'
ATTEST:
/z^ ikf*—.
ALEtHA L. RAUTENKRANZ, City Cierk
MEMORANDUM OF UNDERSTANDING FOR
OPERATION AND MAINTENANCE OF BUENA VISTA PUMP STATION
AND AGTJA HEDIONDA 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 surrounding the Buena .
Vista and Agua Hedionda pump stations, as shown on Exhibit 1,
shall be collectively referred to as the "Pump Stations."
2. 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 (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.
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 EWA 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 (O&M) 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.
.1/20/98
ARTICLE II; 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. These
expenses shall include but not be limited to such things as
salaries and benefits, maintenance costs, utilities, chemicals,
permits, monitoring, accounting and auditing costs,
administration costs, legal services, overhead costs, and
insurance.
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:
1. Concurrently with the preparation of the annual
operating budgets for EWA, but no later tjian 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.
2. 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.
3. ..EWA shall not be responsible to prepare or execute
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. To
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;
1/20/98
however, EWA shall have no obligation to accept responsibilityfor undertaking such improvements.
Except as otherwise agreed, VISTA shall be responsible for
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.
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
o'f the current fiscal year, EWA shall have no obligation to
continue to provide services hereunder after the close of the
fiscal year.
ARTICI.B IIIi PtJMDlM<3
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
responsibility .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
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 reserve, is less than the audited
actual expenses then EWA shall bill CARLSBAD and VISTA the
additional expenses in the October 1 billing.
3. The emergency contingency reserve amount will be billed
and collected only on written demand by the EWA if ah event
occurs at the Pump Stations outside normal operations and
maintenance. .
4. . In•accordance with the Revised Basic Agreement, the
failure by one of the parties, CARLSBAD or VISTA, to pay budgeted .
expenses 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 Vs LIABILITY
Notwithstanding the provisions of Government Code Section
895.2, CARLSBAD and VTSTA 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
or 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 Leueadia County Water District, the
Vallecitos Water District, and the City of Encinitas currently
have no ownership interest in the Pump Stations.
1/20/98
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 tp 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 Public 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 to general operations of the
Pump Stations.
2. Emergencies; Communications Plan. The parties agree to
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. •
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,
the EWA General Manager or his/her designee may release'suchinformation to the public as necessary.
ARTICLE VII: INStJRANCE
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
1/20/98
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
coverages obtained by EWA. CARLSBAD and VISTA shall be named as
additional insureds as to any property insurance obtained by EWA
for the Pump Stations, in accordance with their ownership
interests. Insurance obtained by EWA shall be approved by
CARLSBAD 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. The aforesaid insurance shall in no manner limit the
indemnity provisions of Article V hereof.
ARTICLE VIII: DISCLAIMERS ;
1. EWA shall not be involved in setting 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, arid 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(s) 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.
4. EWA also shall make good faith efforts to comply with
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
1/20/98
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 Memorandum, 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 tiime to time.
ARTICLE X: WARRANTS AND REPRESENTATIONS
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 VJSTA,
their agents or assigns, and any other person regarding the
operation or maintenance of the Pump Stations.
ARTICLE; XI: NOTICES
All notices, statements, 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;
and the EWA General Manager at 6200 Avenida Encinas, 'Carlsbad,CA.
1/20/98
ARTICLE XII: DISPUTE RESOLUTION
EWA, CARLSBAD 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
provide means for resolving any disputes, claims, or
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.
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 (3) •
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. If, after a reasonable amount of time and
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 ("AAA") 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. Any statements'made during mediation shall remain
confidential and may not be disclosed without consent of all
participants.
In the event mediation does not resolve the Dispute, any
party may then elect arbitration by providing a written notice of
such election to the other parties. Such request must be mailed
to the other parties within -30 days following the conclusion of
mediation. Upon serving written notice upon the other parties,
1/20/98
the request for arbitration shall be filed at the AAA and the
arbitration shall be conducted in accordance with the rules
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. The parties may agree to be bound by the results of the
arbitration and may agree that any award by or decision of an
arbitrator shall be final.
Nothing in this procedure shall prohibit the parties seeking
remedies available to them at law.
During the course of any proceeding to resolve a Dispute,
the parties shall continue to perform any duties or obligations
existing under the Memorandum.
ARTICLE XIII: SEVERABILITY
*
If any one or more of the terms, provisions, 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; ASSIGNMENT ;
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:. GOVERNING LAW
This Memorandum is to be governed by and construed in
accordance with the laws of the State of California.
1/20/98
10
IN WITNESS WHEREOF, the parties hereto have caused this
Memorandum to be executed as of the day and year first above
written.
CITY
Approved as to form
Bv:
CARLSBAD
CITY OF VISTA
By:.
Approved as to form
By:.
VISTA Counsel
ENCINA AUTHORITY
Approved as to form
By:.
1/20/98
EXHIBIT 2
SCOPS OF WORK FOR ANNUAL OPERATION AND MAINTENANCE SERVICES
OPERATION AND MAINTENANCE OF BUENA VISTA AND AGUA HEDIONDA
PUMP STATIONS
EWA shall be responsible for all tasks needed to operate and
maintain the Pump Stations. These tasks shall be performed
within the annual operating budgets and shall include:
1. 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 Vista Pump
Station and the Agua Hedionda Pump Station., Operation
and maintenance of the Pump Stations shall be
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.
2. Development and execution of contracts in connection
with the operation and maintenance of the Pump
Stations.
3. Employment of agents and employees to operate,
maintain, administer, and manage the Pump Stations.
4. Preparation of annual operating and annual capital
acquisitions budgets.
5. Incurring of debts, liabilities or obligations in
connection with the operation, maintenance, .
administration and management o£ the Pump stations.
6. Provision of financial and audit services for services
provided by EWA hereunder.
7. Acquisition, holding, and disposition of such equipment
as may be reasonably necessary to the operation,
-maintenance, administration, and management of the Pump
Stations.
8. Filing of reports associated with the operation,
maintenance, administration, and management of the Pump
Stations.
Maintenance of insurance for maintenance and operationsperformed by EWA.
1/20/98
••*.
10. The design capacity of the Buena Vista Pump Station
with four pumps on is 23.1 million gallons per day
(rogd), with three pumps on is 21.5 mgd and with two
pumps on is 17.8 mgd. BWA 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
CARLSBAD.
11. The design Capacity of the Agua Hedionda Pump Station
with three pumps on, and one in standby, is 31 mgd. No
pumping restrictions have been placed on this station's
output.
12. 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.
13. Preparation of draft spill response plans fbr the Pump
Stations for inclusion by VISTA and CARLSBAD in the
spill response plans VISTA and CARLSBAD maintain for
the RWQCB or other regulatory agencies.
GVN\ACKT\S9990.5
1/20/98
••t*
ATTACHMENT 1
Encina Wastewater Authority
Pump Station Public Information Protocols
January 6,1998
Reft 3705
1. EWA will make a unilateral determination to implement the Incident Command
System (ICS) in response to an emergency incident at the Buena Vista or Agua
Hedionda Pump Stations (stations). '•
2. EWA will notify the Vista Qty Manager and the Carlsbad Director of Public Works
within 30 minutes of establishing the ICS in response to an emergency incident at
the stations.i
3. The owner agencies will designate a single point of contact (designee) for the
emergency, * ^'".>
4. Designees will make their best effort to respond to the scene of the emergency
within one hour after EWA makes initial contact pursuant to paragraph 2.
5. For the purpose of providing public information related to an emergency incident at
the stations, all communication between EWA and the owner agency will be
directed through the designee.
6. Prior to the release of any public information related to the emergency incident
EWA and the designee(s) will confer and agree upon the:
a. form (Le, verbal or written);
b. forum (Le., place and timing); ;
c. format (prepared or extemporaneous, limits on Q& A, letterhead);
d. content of the release; and,
e. person who will act as the owner agencies' spokesperson
7. A spokesperson addressing the media in response to an inquiry in any way related
to an emergency incident at the stations shall begin their address by making' the
following statement
"The (name of station) is owned by the cities of Vista and Carlsbad. The Encina
Wastewater Authority is the contract operator of the facility. I am (name)
(position) (agency) and have been designated spokesperson for the owner
agencies."
WRITE IT - DON'T SAY IT!
Date April 3 1998
To Marie Gof f redo, CMWD \ DReply Wanted
From Kathleen Shoup, Clerks j&INo Reply Neceisary
Per yoar instructions, I am sending you all four original Memorandum of Understandings
with the City of Vista and Encina Wastewater Authority for Operation and Maintenance
of the Agua Hedionda and Buena Vista Pump Stations.
After you have them processed for final signatures from Vista and EHA, please return
one signed original to the City Clerk's office for our files.
(For your reference I have also enclosed a copy of Agenda Bill No. 14,609 and also
Resolution No. 98-88.)