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WITHDRAWN • OTHER - SEE MINUTES •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
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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
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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
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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
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Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15.
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California,
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, as follows that;
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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.
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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;
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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.
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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.
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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.
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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
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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