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HomeMy WebLinkAbout2015-10-06; City Council; 22096; License Agreement City and Encina Wastewater Authority 3492 3886 3949 5027CITY OF CARLSBAD - AGENDA BILL AB# 22,096 DATE 10-06-15 DEPT. PW-UTIL APPROVAL OF LICENSE AGREEMENT BETWEEN THE CITY OF CALRSBAD AND ENCINA WASTEWATER AUTHORITY, PROJEa NOS. 3492, 3886, 3949 AND 5027 DEPT. DIRECTOR CITY ATTY. CITYMGR. RECOMMENDED AaiON: Adopt Resolution No. 2015-246 approving a License Agreement between the City of Carlsbad and Encina Wastewater Authority for use of the "South Parcel" during the construction of the Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15, Project Nos. 3492, 3886, 3949 and 5027. ITEM EXPLANATION: On May 19, 2015, the City Council awarded the contract for construction of the Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15 (Project) to Pulice Construction through Resolution No. 2015-124. In order to facilitate the construction of the Project, a site for staging of equipment and materials near the construction site is necessary. Encina Wastewater Authority (EWA) Is the owner of a vacant parcel south of the Carlsbad Water Recycling Facility (CWRF) referred to as the "South Parcel". The South Parcel property Is located near the construction site and provides a suitable area for the staging of equipment and materials. The City of Carlsbad and EWA staff have generated a license agreement which provides Carlsbad and Its contractor temporary use of approximately six acres of land within the South Parcel for the purpose of staging equipment and material for the project. The agreement establishes the terms under which EWA will license the use of that defined portion of the South Parcel. FISCAL IMPAa: A nominal license fee of $1.00 per year for the duration of the Agreement has been determined In consideration of the Project's benefit to the EWA service area. ENVIRONMENTAL IMPACT: A Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP) were prepared for the Agua Hedionda Sewer Lift Station, Force Main and Gravity Sewer Replacement project (PDP 00-02 (C)/SP 144(L)/RP 10-26/CDP 10-17/HDP 10-05/SUP 10-02/HMP). DEPARTMENT CONTACT: Terry Smith 760-603-7354 terry.smith@carJsbadca.gov FOR CLERK USE COUNCIL ACTION: APPROVED CONTINUED TO DATE SPECIFIC • DENIED • CONTINUEDTO DATE UNKNOWN • CONTINUED • RETURNED TO STAFF • WITHDRAWN • OTHER - SEE MINUTES • AMENDED • REPORT RECEIVED • Ucense Agreement Carlsbad/EWA October 6, 2015 Page 2 of 2 The MND was adopted by the City Council on Dec. 6, 2011 in compliance with the California Environmental Quality Act (CEQA) Guidelines Section 15074. Furthermore, pursuant to Public Resources code Section 21065, a license agreement does not constitute a "project" within the meaning of CEQA in that it has no potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment, and therefore does not require environmental review. PUBLIC NOTIFICATION: None required. EXHIBITS: 1. Adopt Resolution No. 2015-246 tp approve and authorize an Agreement between the City of Carlsbad and Encina Wastewater Authority for use of the South Parcel during the construction of the Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15. 2. Location Map. 3. License Agreement between Encina Wastewater Authority and the City of Carlsbad. EXHIBIT 1 1 RESOLUTION NO. 2015-246 6 7 8 9 10 26 27 28 2 A RESOLUTION OF THE OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA APPROVING A LICENSE AGREEMENT BETWEEN THE CITY OF CARLSBAD AND ENCINA WASTEWATER 4 AUTHORITY FOR USE OF THE "SOUTH PARCEL" DURING THE CONSTRUCTION OF THE AGUA HEDIONDA SEWER LIFT STATION 5 AND VISTA/CARLSBAD INTERCEPTOR SEWER REACHES VCllB- VC15, PROJECT NOS. 3492, 3886, 3949 AND 5027 WHEREAS, on May 19, 2015, City Council approved the award forthe construction ofthe Agua Hedionda Sewer Lift Station and VIsta/Carlsbad Interceptor Sewer Reaches VC11B-VC15 (Project) with Pulice Construction (Contractor) through Resolution No. 2015-124; and 11 WHEREAS, a Mitigated Negative Declaration and Mitigation Monitoring and Reporting ^2 Program were adopted by the City Council on Dec. 6, 2011; and WHEREAS, a staging site for storage of equipment and materials is necessary for the contractor to facilitate the construction of the Agua Hedionda Sewer Lift Station and Vlsta/Carlsbad Interceptor Sewer Reaches VC11B-VC15; and 13 14 15 16 I y WHEREAS, Encina Wastewater Authority is owner of vacant land referred to as the "South 18 Parcel" near the construction site which Is suitable in area for the purpose of staging equipment and materials for construction of the Agua Hedionda Sewer Lift Station and Vlsta/Carlsbad 20 21 22 23 24 construction of the Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer 25 Reaches VC11B-VC15; and WHEREAS, the City Council ofthe City of Carlsbad, California, has determined it necessary Interceptor Sewer Reaches VC11B-VC15; and WHEREAS, Encina Wastewater Authority staff and the City of Carlsbad have generated a License Agreement to establish the terms for the temporary use of the South Parcel for the and In the public interest for the City of Carlsbad to enter into the License Agreement with Encina 1 Wastewater Authority for Carlsbad's use of the South Parcel for the purpose of staging ^ equipment and materials for the construction of the Agua Hedionda Sewer Lift Station and 3 Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15. 4 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, 5 , as follows that; 6 7 1. That the above recitations are true and correct. 8 2. The Mayor of the City of Carlsbad Is hereby authorized and directed to execute the ^ License Agreement between the City of Carlsbad and Encina Wastewater Authority. 10 11 12 13 14 15 24 25 26 27 28 // // // // // // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // // // // // 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 ofthe City Council ofthe City of Carlsbad on the 6*^ day of October, 2015, by the following vote to wit: AYES: NOES: Council Members Hall, Blackburn, Schumacher, Wood, Packard. None. ABSENT: None. ATTEST: BARBARA ENGLESON/City Clerk (SEAL) St^^^?.^^.^ 5 LOCATION MAP NOT ro SCALE PROJECT NAME EWA SOUTH PARCEL STAGING AREA FOR AHLS & V/C SEWER REACHES VC11B -VC15 PROJECT NUMBER 3492, 3886, 3949 & 502f EXHIBIT 2 PLOTTED BY: SCOTT EVANS PLOT DATE: 9/15/15 PATH:D:\UVUT1ES DEPARTUENT\LOCATI0N UAPS\AUTOCAD\VC SEKR CONTRACTOR STAGING AREADWG LICENSE AGREEMENT BETWEEN ENCINA WASTEWATER AUTHORITY AND CITY OF CARLSBAD Ref: Admin.15-12286 This License Agreement ("Agreement") is made this _/ day of OcTohcv^ 2015, ("Effective Date"), between ENCINA WASTEWATER AUTHORITY ("EWA"), a public joint powers authority organized under California Government Code 6500 et seq., and the CITY OF CARLSBAD ("CARLSBAD"), a California charter city and EWA member agency, (collectively "Parties"). RECITALS WHEREAS, EWA owns an approximately 22.8 acre parcel of land in the County of San Diego, City of Carlsbad, and which is bordered on the West by Avenida Encinas, on the East by Interstate Highway 5, on the South by a roadway, the North County Transit District Coaster Station and the Hoehn Porsche Dealership and on the North by the Carlsbad reclaimed water and wastewater facilities ("South Parcel"); WHEREAS, on or around July 9, 2015, CARLSBAD entered into a contract with Pulice Construction Inc. for construction of a lift station ("Project"), as set forth in Contract No. PWS13-40UTIL for Agua Hedionda Sewer Lift Station, Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15, and Recycled Water Line Project ("Pulice Contract"); WHEREAS, Carlsbad believes the South Parcel can provide an adequate, suitable area for the staging of construction-related equipment and materials necessary for the Project, and is within sufficient proximity to the Project; WHEREAS, the Parties desire to enter Into a short term license agreement whereby CARLSBAD will license approximately six ("6") acres of land within the South Parcel owned by EWA, and existing within the metes and bounds more particularly described in the Plat of Project attached hereto as Attachment A ("South Parcel License Area") for use as a staging area; WHEREAS, the purpose ofthis Agreement is to establish the terms under which EWA will license the use ofa portion ofthe South Parcel to CARLSBAD forthe purposes ofthe Project, as authorized by Article V, Section K of the June 27, 2001 Agreement Between EWA, the EWA Member Agencies and the City of Carlsbad Transferring Title to the EWA and Authorizing the Purchase ofa Portion ofthe South Parcel by the City of Carlsbad, and to allocate the costs and potential liabilities of the Parties in carrying out this Agreement; WHEREAS, it is the intent ofthe Parties that EWA shall have the right to enforce provisions ofthe Pulice Contract, and any other contract related to the Project, solely as respects insurance and Indemnity obligations and issues of safety relating to the use ofthe South Parcel License Area by CARLSBAD; WHEREAS, it is also the intent ofthe Parties that this Agreement will not create any right to continue any use, except as expressly provided herein, and that should EWA determine a more beneficial use for the licensed portion ofthe South Parcel, this Agreement may be terminated, as provided herein; WHEREAS, the Parties acknowledge that the Project benefits the EWA service area, and is being built specifically to benefit EWA member agencies CARLSBAD and the City of Vista; 7 NOW, THEREFORE, BE IT RESOLVED, that in consideration forthe promises and the mutual agreements of the Parties contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: ARTICLE I LICENSED PROPERTY 1.01 Ucense Agreement: Description of Propertv. EWA hereby licenses to CARLSBAD the exclusive use of the South Parcel License Area solely for use as a staging area in connection with the Project by CARLSBAD'S contractors and licensees. This Agreement licenses only the use of real property located within the boundaries identified in Attachment A, and does not include the right to use any fixtures, equipment or personal property located on, under or over the South Parcel, or attached thereto. 1.02 Title. EWA is the sole owner of the South Parcel License Area, and neither CARLSBAD, its contractors or licensees, nor any parties to or beneficiaries of the Pulice Contract or the Project, shall obtain any title to the South Parcel License Area, except as a licensee pursuant to the terms of this Agreement. 1.03 Utilities Excluded. This Agreement is limited to use of real property known as the South Parcel License Area for only those purposes specifically Identified herein, and expressly does not include the provision of or right to, water, sewer, electricity or other utilities, or any guarantee of such utility service. ARTICLE II LICENSE FEE 2.01 License Fee. CARLSBAD shall pay to EWA, a license fee for use ofthe South Parcel License Area as described herein, the sum of one dollar ($1.00) per year forthe duration ofthis Agreement. This nominal license fee is made in consideration ofthe Project's benefit to the EWA service area. 2.02 Timing and Location of License Fee. The license fee shall be due and payable beginning on the Effective Date of this Agreement and on the same date of the same month of each year thereafter for the duration ofthis Agreement, unless the due date falls on a weekend or holiday, in which case the license fee will be due on the following business day. The license fee shall be paid to EWA at the address for notice stated herein, or at such other location as EWA may designate in writing. ARTICLE III TERM 3.01 Term of Agreement. CARLSBAD's right to license the South Parcel License Area pursuant to the terms ofthe Agreement shall commence on the Effective Date and shall continue for a period of two {"2") years, terminating on October 6 , 2017 unless this Agreement is terminated at an earlier date in accordance with Section 3.02 herein, or extended by written agreement. 3.02 Earlv Termination. Either party may terminate this Agreement, with or without cause, upon one hundred and eighty (180) days written notice to the other party. Such termination shall be effective one hundred and eighty (180) days from the date of the notice. In the event of an early termination, any license fees paid up to that point will be forfeit. -2 3.03 Surrender. Upon termination of this Agreement, CARLSBAD shall surrender, and shall ensure that any of its licensees or contractors also surrenders, the South Parcel License Area in the same condition as at the Effective Date of this Agreement. CARLSBAD, at its sole cost, shall remove from the South Parcel License Area any personal property, business or trade fixtures, machinery, equipment, or alterations, improvements or additions which did not exist on the South Parcel License Area prior to the Effective Date ofthis Agreement. Should CARLSBAD fall to return the South Parcel License Area in the same condition, or fail to remove any personal property or alterations, EWA may perform any work necessary to return the South Parcel License Area to the same condition as at the Effective Date ofthis Agreement, and may recover from CARLSBAD the cost of any such work. 3.04 Holding Over. If CARLSBAD holds over Its use of the South Parcel License Area after the termination ofthis Agreement without the written consent of EWA, CARLSBAD shall become a licensee at sufferance only and EWA will be entitled to recover from CARLSBAD for any damage resulting from CARLSBAD's failure to deliver the South Parcel License Area to EWA (including damages claimed by new or concurrent licensees, if any). The Parties further agree that EWA has the right to seek Injunctive relief as remedy to enforce the terms of this Agreement, and to recover possession ofthe South Parcel License Area. ARTICLE IV USE 4.01 Use. CARLSBAD shall use the South Parcel License Area as a staging area for its contractors and licensees to store and stage equipment, machinery and materials as needed for construction under the terms and conditions of the Project, and for no other purpose, including for actual construction or for staging and activities relating to other construction projects. 4.02 Compliance with Laws. CARLSBAD shall use, and shall ensure that its licensees and contractors use, the South Parcel License Area in a careful and safe manner, and in compliance with all applicable zoning ordinances, building regulations, or other municipal, county, state or federal laws, ordinances or regulations, now or hereafter enacted, and shall obtain any and all permits necessary to carry out this Agreement. CARLSBAD shall, at its sole cost, shall promptly comply with all such laws, ordinances and regulations. 4.03 Carlsbad Oversight. CARLSBAD hereby agrees to perform reasonable and diligent oversight and supervision of its licensees and contractors' use of the South Parcel License Area, including but not limited to performing regular inspections of South Parcel License Area and the construction staging area, and to ensure compliance with this Agreement and the terms of the Pulice Contract and any other contract related to the Project. CARLSBAD further agrees it is responsible for the conduct of Its licensees and contractors relating to the South Parcel License Area and the construction staging area provided for by this Agreement. 4.04 Fence. CARLSBAD shall cause a fence to be erected around the South Parcel License Area for the duration ofthis Agreement, orthe duration of construction staging activities pursuant to this Agreement. CARLSBAD shall ensure that such fencing is sufficient to protect the safety of passersby and to prevent access to the South Parcel License Area and construction staging area by trespassers and other unauthorized persons. 4.05 Restrictions. -3- 4.05.1 No Residence. No persons will be permitted to live or take up residence on the South Parcel License Area. 4.05.2 Damage. CARLSBAD shall not damage or alter the South Parcel License Area. 4.05.3 Nuisance. Waste. CARLSBAD shall not cause, maintain, commit or permit any nuisance or waste with, on, or about the South Parcel License Area. 4.05.4 Ingress/Egress. This Agreement does not provide for direct access to the South Parcel License Area via Avenida Encinas, and EWA does not guarantee ingress and egress to or from the South Parcel License Area to the public street. It is the understanding of the Parties that CARLSBAD and its contractors and licensees will gain access to the South Parcel License Area through property owned and/or controlled by CARLSBAD. 4.06 Suitabilitv: No Warrantv. CARLSBAD accepts the South Parcel License Area in the condition existing as of the Effective Date of this Agreement. EWA makes no warranty as to the condition of the South Parcel License Area or its suitability for any particular use, nor of CARLSBAD's right to utilize any rights of way, encroachment permits or easements on, in or around the South Parcel License Area. By signing this Agreement, CARLSBAD further accepts and warrants that neither EWA nor EWA's agents have made any representation or warranty as to the suitability of the South Parcel License Area for any particular use. ARTICLE V RIGHTTO ENFORCE PROJECT PROVISIONS 5.01 EWA's Interest As Propertv Owner. The Parties acknowledge that as owner of the South Parcel License Area, which will be the location of construction staging for the Project pursuant to this Agreement, EWA has an interest in provisions ofthe Project and any Project contracts, including but not limited to the Pulice Contract, which relate to construction staging or otherwise concern use of the South Parcel License Area. 5.02 EWA's Right to Enforce Proiect Provisions. EWA shall have the right to enforce provisions of any contracts between CARLSBAD and its contractors and licensees, solely as they relate to construction staging or concern use of the South Parcel License Area, and specifically those provisions relating to indemnity insurance and indemnity obligations and issues of safety. ARTICLE VI MAINTENANCE AND RISK OF LOSS 6.01 Maintenance Obligations. EWA shall not be obligated to incur any expense or responsibility of any kind in connection with the maintenance or upkeep ofthe South Parcel License Area. CARLSBAD shall, at its sole cost, maintain the South Parcel License Area, including any installations located thereon, in good condition and repair and in accordance with all applicable laws, ordinances, rules, orders and regulations. CARLSBAD shall promptly and diligently repair and restore all or any part ofthe South Parcel License Area in order to comply with the maintenance obligations specified herein. EWA's prior written approval is required prior to any repairs conducted under this section. EWA will reasonably cooperate with CARLSBAD in obtaining any authorizations required for such work. 4- (0 6.02 Risk of Loss. During the term of this Agreement, CARLSBAD will be responsible for any loss or damage to persons or property occurring on the South Parcel License Area arising under this Agreement. ARTICLE Vll INSURANCE 7.01 Scope of Coverage. CARLSBAD shall ensure that its contractors and licensees procure and maintain, during the life ofthe Agreement, adequate workers' compensation, commercial general liability, auto and property damage insurance, to protect CARLSBAD, its contractors and licensees, EWA, and EWA's Member Agencies (to Include the City of Encinitas, the City of Vista, the Buena Sanitation District, the Leucadia Wastewater District and the Vallecitos Water District) and each of their respective officers, officials, directors, employees and volunteers from all claims for bodily injury. Including accidental death, and property damage claims arising from or in connection with use ofthe South Parcel License Area by CARLSBAD and CONTRACTOR, their agents, representatives, employees or subcontractors. The specific coverages required shall be as specified in CARLSBAD's contracts relating to the Project and shall be deemed adequate for purposes ofthis Agreement. 7.02 Additional Insured Coverage. As to the commercial general liability and property damage coverages required by this Agreement, CARLSBAD shall ensure that EWA and its Member Agencies (to include the City of Encinitas, the City of Vista, the Buena Sanitation District, the Leucadia Wastewater District and the Vallecitos Water District) and each of their respective officers, officials, directors, employees and volunteers, are named as additional Insureds under any Project contract for all claims for bodily injury, including accidental death, and property damage claims arising from or in connection with this Agreement. 7.03 Notice. No insurance policy required by this Article may be reduced or canceled, except after thirty (30) days' prior written notice has been given to EWA. 7.04 Proof of Insurance. Within thirty (30) days of EWA's written request, CARLSBAD shall provide EWA with certificates of insurance for the insurance policies required herein and all additional insured endorsements, including copies of those policies and endorsements required ofthe CONTRACTOR. ARTICLE Vlll DEFENSE AND INDEMNITY 8.01 Notwithstanding the provisions of Government Code Section 895.2, CARLSBAD shall, to the fullest extent allowed by law, indemnify, defend and hold EWA and the other member agencies of EWA, 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 Agreement, other than actual intentional or willful misconduct of an EWA employee, officer or agent not covered by the insurance required in Article Vll. The Buena Sanitation District, the Leucadia Wastewater District, the Vallecitos Water District, the City of Vista and the City of Encinitas are EWA member agencies who currently have no interest in or responsibility for enforcement related to the Project. 8.02 CARLSBAD further agrees to indemnify, defend and hold harmless the EWA member agencies listed in Section 8.01 above, 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 CONTRACTOR'S, or their officers', agents', or employees' alleged negligence, intentional or -5 / S willful misconduct regarding any work performed for the Project, pursuant to the Pulice Contract or regarding the license ofthe South Parcel License Area permitted by this Agreement. ARTICLE IX DEFAULT AND REMEDIES 9.01 Default. CARLSBAD's failure to timely perform any duty or obligation under this Agreement, and failure to remedy such nonperformance following written notice and opportunity to cure, will result in default. The following will also result in default: 9.01.1 Interference with Operations. If CARLSBAD's use of the South Parcel License Area interferes with or limits EWA's existing equipment or operations. 9.01.2 Unauthorized Use. If CARLSBAD's use is outside the scope authorized or otherwise falls to conform with this Agreement. 9.01.3 Lack of Insurance. If CARLSBAD fails to require maintenance ofthe insurance coverages required by this Agreement. 9.01.4 Unsafe Conditions. If CARLSBAD, its contractors or licensees, engages in unsafe or hazardous acts or omissions on or around the South Parcel License Area, or permits the existence of unsafe or hazardous conditions on or around the South Parcel License Area. 9.02 Remedies. In the event of a default the Parties shall have all the rights and remedies specified in this License, Including but not limited to termination. These remedies are not exclusive and are cumulative and in addition to any rights or remedies at law or in equity now or later allowed. ARTICLE X DISPUTE RESOLUTION 10.01 Mutually Beneficial Relationship. EWA and CARLSBAD agree that the maintenance of a cooperative and mutually beneficial relationship between them is an important aspect ofthis Agreement and therefore intend to provide means for resolving any disputes, claims, or controversies that may arise during the course of this Agreement in an efficient manner to avoid resort to legal actions against one another, if feasible. 10.02 Dispute Resolution. Except for any claim or action filed by a nonparty to this Agreement, any dispute, claim, or controversy arising with respect to the interpretation of this Agreement or the performance by any Party shall be subject to the Settlement of Dispute or Controversy provisions set forth in Section 18 ofthe Encina Joint Powers Authority Revised Basic Agreement. 10.03 No Waiver of Legal Remedies. Nothing in this procedure shall prohibit the Parties seeking remedies available at law. 10.04 Obligation to Continue Performance. During the course of any proceeding to resolve a Dispute, the Parties shall continue to perform any duties or obligations existing under the Agreement. ARTICLE XI GENERAL PROVISIONS 11.01 Assignment. CARLSBAD shall not assign, transfer, mortgage, or encumber this Agreement or any interest therein (collectively "assign") without the prior written consent of EWA. 11.02 Sublicense. CARLSBAD shall not sublicense its rights under this Agreement without prior, written consent by EWA. This provision does not affect CARLSBAD's right to contract with suitable contractors or licensees for work on the Project. 11.03 Notice. Any notice required herein shall be in writing and shall be personally delivered or sent by mail, as specified herein, or at such other address as such party may from time to time designate in writing. EWA's Address for Notice: Kevin M. Hardy EWA General Manager 6200 Avenida Encinas Carlsbad, CA 92011 CARLSBAD's Address for Notice: Kirsten Plonka Engineering Manager 5950 El Camino Real Carlsbad, CA 92008 11.04 Headings. The captions and paragraph headings used in this Agreement are inserted for convenience of reference only and are not Intended to define, limit or affect the interpretation or construction of any term or provision hereof. 11.05 Entire Agreement. This Agreement, together with any attachments hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are superseded. 11.06 Attachments. All Attachments referred to herein are incorporated by reference. 11.07 Modification. No modification, amendment, discharge or change of this Agreement shall be valid unless the same is in writing and signed by the party against whom the enforcement of such modification, amendment, discharge or change is sought. 11.08 Severability. If any term or provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder ofthis Agreement shall not be affected thereby, and each other term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 11.09 Costs of Suit: Attorneys' Fees. If either party brings any action for relief against the other, declaratory or otherwise, arising out of this Agreement, including any suit by EWA for the recovery of possession of, or damages cause to, the South Parcel Ucense Area, the losing party shall pay the prevailing party a reasonable sum for attorneys' fees and costs. 11.10 Binding Effect. Subject to the provisions ofthis Agreement restricting assignment and subletting, all the provisions of this Agreement shall bind and inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successors and assigns. 11.11 Jurisdiction and Venue. This Agreement shall be governed, construed and enforced in accordance with the laws ofthe State of California. The proper jurisdiction, forum and venue for any claims, causes of action or other proceedings arising out of or relating to this Agreement shall be in the state and federal courts located In the State of California, County of San Diego. 11.12 Waiver. No covenant, term or condition orthe breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed. Any waiver of the breach of any covenant, term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term or condition. Acceptance by EWA of any performance by CARLSBAD after the time such performance is due shall not be deemed a waiver of any preceding breach by CARLSBAD other than the failure of performance so accepted, regardless of EWA's knowledge of such preceding breach at the time of acceptance. No delay or omission by either party in exercising any relief or power accruing upon non-compliance or failure of performance by the other party shall impair or be construed as a waiver thereof, unless an intention to waive is expressly set forth in a writing signed by the waiving party. 11.13 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which together shall constitute one and the same agreement, and the signature of any party to any counterpart shall be deemed to be a signature to, and may be appended to, any other counterpart. BY SIGNING BELOW, THE PARTIES WARRANT THEY HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT AND HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT. ENCINA WASTEWATER AUTHORITY: ^jgrtcffure' 2\ • see- Date Approved As to Form CITY OF CARLSBAD: Signature Mayor Title October 7, 2015 Date Approved As to Form ATTACHMENT A 420.00' N 28-07 '52" W /56.05' N 20-22'43" W PROJECT NAME CONTRACTOR STAGING AREA (ENCINA SOUTH PARCEL) PLOTTED BY: SCOTT EVANS PLOT DATE: 7/22/IS PATH:D:\imJTIES D£P>W7J1£N7\D£S(GN D(MSKJN\Sllfl7H\VC WTERCEPTOR REACH MCJJ TD Va5\ENaNA SOUTH PARCEL STAGING AREA