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HomeMy WebLinkAbout2016-04-12; City Council; 22259; Authorize MOU between City of Carlsbad and North County Transit District for temporary right-of-way for construction of Agua Hedionda Sewer Lift Station PN 3886CITY OF CARLSBAD-AGENDA BILL 5 /') AB# 22,259 AUTHORIZE A MEMORANDUM OF UNDERSTANDING ~~ DEPT. DIRECTO~ DATE 04-12-15 BETWEEN THE CITY OF CARLSBAD AND NORTH COUNTY CITY ATTY. 1-1~ TRANSIT DISTRICT FOR TEMPORARY USE OF RIGHT-OF-' ,' vv WAY FOR CONSTRUCTION OF THE AGUA HEDIONDA DEPT. PW-UTIL SEWER LIFT STATION, PROJECT NO. 3886 CITY MGR. RECOMMENDED ACTION: Adopt a Resolution authorizing the Memorandum of Understanding (MOU) between the City of Carlsbad and North County Transit District (NCTD) for temporary use of NCTD right-of-way for the construction of the Agua Hedionda Sewer Lift Station, Project No. 3886. 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. The City of Carlsbad holds an easement over part of the Project area that is within the NCTD right-of-way. In order to facilitate the construction of the Project, additional area outside ofthis easement is required. The area needed for construction is within the NCTD right-of-way, a portion of which has been designated for use as a natural habitat mitigation site. The habitat mitigation site is in the early stages of growth and is maintained by NCTD. In return for the temporary use of this property and disturbance to a portion of the habitat, the City of Carlsbad proposes to enhance portions of the undisturbed mitigation site with additional planting and irrigation at the completion of the Project. The enhancement will improve the likelihood that NCTD's mitigation site will meet the success criteria for establishment. Upon completion of the initial enhancements by the city's contractor, all subsequent maintenance and permit requirements will be the responsibility of NCTD. City and NCTD staff have negotiated an MOU, which provides the City of Carlsbad and its contractor temporary use of approximately one-half acre of land within the NCTD right-of-way for the purpose of construction of the Project. Staff views the MOU as mutually beneficial to both parties and it has the support of the U.S. Army Corps of Engineers, which is the permitting agency for the habitat mitigation site. FOR SECRETARY USE. COUNCIL ACTION: DEPARTMENT CONTACT: Lindsay Leahy 760-603-7325 or Lindsay.leahy@carlsbadca.gov APPROVED DENIED 0 CONTINUED D WITHDRAWN 0 AMENDED 0 CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER-SEE MINUTES REPORT RECEIVED D ____ _ D D 0 D 1 MOU with NCTD and City of Carlsbad Apri/12, 2016 Page2 of2 FISCAL IMPACT: The City of Carlsbad intends to negotiate a change order with Pulice Construction for this additional work since Pulice is already performing work of similar scope for the Project. The cost of the additional work is expected to be less than two percent of the Project's change order allowance as approved in Resolution No. 2015-124, which is $3,535,624. Adequate funds are available for this work. 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). The MND was adopted by the City Council on Dec. 6, 2011, in compliance with the California Environmental Quality Act (CEQA) Guidelines Section 15074. The work to be performed under the MOU is within the scope ofthis MND, and no further environmental review is required. PUBLIC NOTIFICATION: None Required. EXHIBITS: 1. Resolution authorizing a Memorandum of Understanding between the City of Carlsbad and North County Transit District for temporary use of right-of-way for construction of the Agua Hedionda Sewer Lift Station, Project No. 3886. 2. Location Map. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2016-065 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CARLSBAD AND NORTH COUNTY TRANSIT DISTRICT FOR TEMPORARY USE OF RIGHT-OF- WAY FOR CONSTRUCTION OF THE AGUA HEDIONDA SEWER LIFT STATION, PROJECT NO. 3886. EXHIBIT 1 WHEREAS, on May 19, 2015, City Council approved the Award of Contract for construction of the Agua Hedionda Sewer Lift Station and Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15 (Project) with Pulice Construction through Resolution No. 2015-124; and WHEREAS, a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program for the Project was adopted by the City Council on Dec. 6, 2011; and WHEREAS, the North County Transit District (NCTD) and the City of Carlsbad entered into an amended Easement Agreement for the Project's new infrastructure. This agreement is on file with the San Diego County Recorder's office as Document No. 2014-0017925, dated Jan. 14,2014;and WHEREAS, the City of Carlsbad requires the temporary use of additional area from NCTD for the construction of the new infrastructure, which is located outside the city's existing easement; and WHEREAS, a portion of the additional area required by the City of Carlsbad is a habitat mitigation site being created by NCTD in compliance with a permit issued to NCTD by the Army Corps of Engineers; and WHEREAS, the City of Carlsbad and NCTD staff have negotiated a Memorandum of Understanding (MOU), which defines the terms for the City of Carlsbad's temporary use of the 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 additional area, and subsequent restoration of the property at the completion of the Project; and WHEREAS, both parties will mutually benefit from this MOU and the City of Carlsbad has adequate funds in the Project's change order allowance as established in Resolution No. 2015- 124 to implement its obligations under the MOU. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California as follows: 1. That the above recitations are true and correct. 2. That the Public Works Director of the City of Carlsbad is hereby authorized and directed to execute the Memorandum of Understanding between the City of Carlsbad and North County Transit District, attached hereto as Attachment A. II II II II II II II II II II II 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 12th day of April, 2016, by the following vote to wit: AYES: Council Members Hall, Wood, Schumacher, Blackburn, Packard. NOES: None. ABSENT: None. (SEAL) ATIACHMENTA NCTD Doc. No. 2015-22 N C T D PROCUREMENT & CONTRACT ADMINISTRATION DEPARTMENT MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN NORTH COUNTY TRANSIT DISTRICT AND CITY OF CARLSBAD REGARDING USE OF NCTD ROW FOR CITY LIFT STATION This Memorandum of Understanding ("MOU") is made and entered into by and between the NORTH COUNTY TRANSIT DISTRICT (NCTD), operating under and pursuant to Public Utilities Code Section 125000, et seq. and CITY OF CARLSBAD ("CITY"), individually referred to as a "Party" and collectively referred to herein as "Parties". · RECITALS The following recitals are a substantive part of this Agreement: WHEREAS, NCTD owns certain railroad right-of-way (ROW) properties, which the CITY wishes to utilize for the purposes of construction of infrastructure associated with a sewer pipeline and sewer lift station (City Lift Station) in and adjacent to the ROW; WHEREAS, the Parties entered into an amended easement agreement (Easement Agreement) for the new infrastructure, which is on file with the San Diego County Recorder's office as Document No. 2014- 0017925, dated January 14, 2014; WHEREAS, CITY needs to utilize a portion of NCTD's property for construction of the infrastructure improvements, which is currently used as natural habitat mitigation under permit with the United States Army Corps of Engineers. This permit required that NCTD restore portions of the NCTD property for re- vegetation and habitat creation, including the area proposed to be impacted by the CITY; WHEREAS, to offset the disturbance of the mitigation site, the CITY has requested NCTD allow the use of certain areas of the ROW, and in return to restore the areas used by the CITY to a state acceptable to both NCTD and to the applicable permitting agencies; and WHEREAS, both Parties will mutual benefit by this MOU and wish to memorialize their agreement in this MOU to carry out the purposes set forth above; AGREEMENT NOW THEREFORE, in consideration of the mutual promises set forth herein, the Parties agree as follows: CITY AGREES: 1. To protect and enhance a minimum of 1.00 acre in total of the existing mitigation area as shown on Exhibit A to this MOU (Mitigation Site) and as described below in Items 2 through 4. 2. Provide and install in the Mitigation Site container plants and/or hydroseed of a quantity and type to be determined jointly by NCTD and CITY biologist. NCTD shall reimburse CITY for one-half of the costs for purchase and installation. 3. Establish a water source and install an irrigation system for the Mitigation Site. 4. Install temporary chain link fencing during construction to keep animals and persons out of the Mitigation Site. 5. Pay for costs associated with any temporary fencing required to protect Mitigation Site in-place during construction of City Lift Station. December 22, 2015 NCTD Doc. No. 2015-22 6. Install permanent t-post with three-strand wire fence along the perimeter of the east Mitigation Site immediately after completion of Items 2 through 4 above. Fencing shall not be placed within the Foul Zone. NCTD shall reimburse the City for costs associated with the permanent fencing. 7. NCTD and CITY biologist to jointly agree to a planting and irrigation plan as prepared by NCTD. CITY to install. 8. CITY agrees to initiate enhancement of Mitigation Site prior to April2017. 9. Comply with all NCTD requirements to obtain ROW access to perform the work as outlined on NCTD's website and as directed by NCTD, http://www.gonctd.com/working-around-the- rails#submittals. NCTD agrees to expedite review of these submittals and work cooperatively to provide the necessary approvals. Cost for Fl;3gging shall be paid by NCTD. 10. Comply with all applicable Federal/State/Local requirements, codes, and laws associated with activities conducted in the NCTD ROW. 11. Comply with all terms and conditions of the Right-of-Entry (ROE) Permit. 12. To defend, indemnify and hold NCTD, its Board of Directors, contract management and staff; agents, and member agencies harmless from any and all liability, claims, damages or injuries to any person or property, including injury to CITY's employees, arising from or connected with CITY's performance of or failure to perform its obligations under this MOU. NCTD AGREES: 13. Grant the CITY a Right-of-Entry (ROE) for the purposes of executing this MOU and pay for related Flagging costs. 14. Pay for costs of irrigation water. 15. Pay for costs associated with any permanent fencing. 16. Perform and pay for the ongoing Mitigation Site maintenance after City completes enhancement of Mitigation Siteas describe above. NCTD shall be responsible for meeting the Mitigation Site success criteria as set forth by permitting agencies. 17. Obtain meter from CITY for water and pay meter fees. 18. To jointly agree with CITY biologist to a planting and irrigation plan that NCTD will develop and CITY will install. 19. To reimburse CITY for one-half of the costs for purchase and installation for container plants of a quantity and type to be determined jointly by NCTD and CITY biologist. 20. Perform all activities required under United States Army Corps of Engineers or Regional Water Quality Control Board permits and associated documents other than those identified within this MOU or unanticipated impacts from work performed in the NCTD ROW by the CITY or their contractors. 21. Maintain all infrastructure following installation, including: permanent fencing (t-post with three-strand or similar), plantings and irrigation lines for a period as required by permitting agencies. 22. Comply with Federal/State/Local requirements, codes, and laws. 23. To defend, indemnify and hold CITY, its elected officials, contract management and staff, and agents, harmless from any and all liability, claims, damages or injuries to any person or property, including injury to NCTD's employees, arising from or connected with NCTD's performance of or failure to perform its obligations under this MOU. December 22, 2015 2 7 NCTD Doc. No. 2015-22 THE PARTIES MUTUALLY AGREE: 1. The above Recitals are true and correct and are integrated as part of this MOU. 2. Any correspondence required or permitted under this MOU may be personally served on the other Party by the Party giving notice, or may be served by email, fax or prepaid registered or certified USPS mail, return receipt requested, to the following addresses: For NCTD: For CITY: North County Transit District 810 Mission Avenue Oceanside, CA 92054 Attn: Dahvia Lynch Chief Planning Officer Phone: (760) 966-6654 E-mail: dlynch@nctd.org City of Carlsbad 5950 El Camino Real Carlsbad, CA 92008 Attn: Terry L. Smith Public Works-Utilities Engineering Phone: (460) 602-2751 E-mail: terry.smith@carlsbadca.gov 3. That unless it is amended by the Parties in writing, this MOU shall terminate on December 31, 2017, or such earlier or later date as the Parties may agree to in writing. This MOU may be terminated prior to this date if a Party to the MOU gives 60 (sixty) days written notice of its desire to withdraw from the MOU. 4. The Easement Agreement and indemnification provisions of this MOU shall survive termination of the MOU. 5. This MOU shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this MOU, the action shall be brought in a state or federal court situated in the County of San Diego, State of California. 6. Disputes. Any dispute, controversy, or claim arising out of or related to this Agreement or any claimed breach thereof, shall be resolved in accordance with the provisions of this Section. 6.1 Notice of Dispute. If any dispute, controversy, or claim arises out of or relating to the Agreement or any claimed breach thereof, the disputing Party shall give the other Party written notice of the dispute, controversy, claim, or claimed breach ("Notice of Dispute"). The Notice of Dispute shall include a brief statement of the claim(s) and the relief demanded. 6.2 Right to Resolve or Cure. The other Party shall have ten (1 0) days after receipt of the Notice of Dispute to agree in writing to resolve or cure the dispute, controversy, or claim. 6.3 Failure to Resolve or Cure. If the dispute, controversy, or claim has not been resolved or cured by the Parties within ten (1 0) days after the disputing Party gives the Notice of Dispute, the Parties agree, that as a precondition to the initiation of litigation, the controversy, claim, or dispute shall first be submitted to mediation. The mediation is non- binding, and intended to provide an opportunity for the Parties to evaluate each other's cases and arrive at a mutually agreeable resolution of the dispute. (i) The mediation process set forth in this Section shall be administered by the American Arbitration Association (AAA} and governed by their rules in effect at the time of filing, or by any other neutral organization agreed to by the Parties (hereinafter called "Administrator"). (ii) The costs for all mediation, including the administrative fees and mediator compensation, will be shared equally by all Parties. Fees shall be jointly negotiated by all Parties directly with the Administrator. If all Parties agree, then the mediation costs may increase as required for resolution of the dispute. The expenses of witnesses for any Party shall be paid by the Party producing such witnesses. December 22, 2015 3 NCTD Doc. No. 2015-22 (iii) A single mediator, acceptable to all Parties, shall be used to mediate the dispute. The mediator will be knowledgeable in construction matters, and, if possible, with rail systems design and construction issues, and will be selected from lists furnished by the Administrator. The initial mediation session shall commence within thirty (30) days of filing, unless otherwise agreed by the Parties, or at the direction of the mediator. (iv) At least ten (1 0) days before the first scheduled mediation session, each Party shall provide the mediator a brief memorandum setting forth its position with regard to the issues that need to be resolved. At the discretion of the mediator, such memoranda may be mutually exchanged by the Parties. At the first session, the Parties will be expected to produce all information reasonably required for the mediator to understand the issue presented. The mediator may require each Party to supplement such information. (v) Mediation hearings will be conducted in an informal manner and discovery will not be allowed unless agreed to by all Parties. All discussions, statements, or admissions will be confidential to the proceedings and will not be used for any other purpose as they relate to either Party's legal position. There shall be no stenographic record of the mediation. (vi) Mediation sessions are private. The Parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the Parties and with the consent of the mediator. The Parties may have an attorney present and shall advise the other Parties no less than five (5) working days before the mediation of their intent to have an attorney present, so that the other Parties may also have their attorneys present. (vii) The mediator does not have authority to impose a settlement on the Parties but will attempt to assist the Parties in reaching a satisfactory resolution of their dispute. The mediator is authorized to conduct joint and separate meetings with the Parties and to make oral and written recommendations for settlement. Whenever necessary, the mediator may also obtain expert advice concerning technical aspects of the dispute, provided the Parties agree and assume the expenses of obtaining such advice. Arrangements for obtaining such advice shall be made b the mediator or the Parties, as the mediator shall determine. (viii) The mediator is authorized to end the mediation whenever, in the mediator's judgment, further efforts at mediation would not contribute to a resolution of the dispute between the Parties. (ix) Any resultant agreements from mediation shall be documented in writing, as agreed upon during the mediation, and may be used as the basis for a change order or other directive as appropriate. All mediation results and documentation shall be non-binding and inadmissible for any purpose in any legal proceedings, unless such admission is otherwise agreed in writing by all Parties. Mediators shall not be subject to any subpoena or liability and their actions shall not be subject to discovery in subsequent proceedings. (x) The mediation shall be terminated by the execution of a Settlement Agreement by the Parties; by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or by a written declaration of a Party or Parties to the effect that the mediation proceedings are terminated. 7. All terms, conditions, and provisions hereof shall inure to and shall bind each of the Parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. December 22, 2015 4 NCTD Doc. No. 2015-22 8. In the event the CITY elects to use a contractor or its own staff to construct, it shall insure that the contract meets the requirements of FTA Circular 4220.1.F. by providing NCTD with (1) a copy of the contract that shows that the current FTA clauses and required certifications are included, and; (2) that original copies of the certificates made out to NCTD, signed by the contractors, and (3) proof that a competitive process was used in the selection of a contractor. If the work exceeds $10,000.00 in value, the sealed bid method must have been used. These are requirements for NCTD to utilize its federal funds and make payment to the CITY for work performed on NCTD's behalf. No payment can be made to the CITY if the contracting requirements outlined herein have not been followed and evidence of such is not on record at NCTD. Attached to this MOU is a copy of the current FTA clauses required for contracts and certificates requiring contractor signature. The entire Circular 4220.1 F can be provided upon request. If (state name of entity) has any questions or concerns about complying with the FTA requirements, the named party must contact NCTD's Chief of PCA for guidance." FTA Circular 4220 can be found at http://www.fta.dot.gov/laws/circulars/leg reg 8641.html. For any questions or concerns about FTA compliance, contact the NCTD contact named in item 2, above. 9. For purposes of this MOU, the relationship of the Parties is that of independent entities and not as agents of each other or as joint ventures or partners. The Parties shall maintain sole and exclusive control over their personnel, agents, consultants, and operations. 10. No alteration or variation of the terms of this MOU shall be valid unless made in writing and signed by the Parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the Parties hereto. 11. Nothing in the provisions of this MOU is intended to create duties or obligations to or rights in third Parties to this MOU or affect the legal liability of the Parties to this MOU. 12. Each Party declares that, prior to execution of this MOU; it has consulted with its attorney in order that it may intelligently exercise its own judgment in deciding whether to execute this MOU. 13. Each Party declares that it has read this MOU and understands and knows the contents thereof and represents and warrants that each of the Parties executing this MOU is empowered to do so and herby binds the respective Party. 14. This MOU may be executed in any number of identical counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument when each party has signed one such counterpart. The Parties further agree that a facsimile copy of the executed counterparts shall have the same force and effect as an original. (SECTION INTENTIONAL Y LEFT BLANK) December 22, 2015 5 10 NCTD Doc. No. 2015-22 IN WITNESS WHEREOF, the Parties have caused this MOU to be executed and delivered as of the last date of the Parties signature. NORTH COUNTY TRANSIT DISTRICT Matthew 0. Tucker Executive Director '}_I !5/Znlk DatE! Signed' ' Lori A. Winfre~if' General Counsel Date Signed December 22, 2015 6 CITY OF CARLSBAD APPROVED AS TO FORM Name::;i1Pw-t--. 5~ Deputy City Attorney #13/1& Date Signed EXHIBIT A NORTH COUNTY TRANSIT DISTRICT MITIGATION SITE CITY OF CARLSBAD 2009 AERIAL PHOTO NOT TO SCALE PROJECT NAME LOCATION AGUA HEDIONDA LAGOON SITE MAP PACIFIC OCEAN AGUA HEDIONDA LIFT STATION & VISTNCARLSBAD CONSTRUCTION AND HABITAT MITIGA T/ON SITE PLOTTED BY: SCOTT EVANS PLOT DATE:J/17/16 PATH:D:\U71U71ES DEPARTMENT\LOCA710N MAPS\AUTOCAD\VC SEWER M/71GA710N.DWG AGUA HEDIONDA LAGOON VICINITY MAP NOT TO SCALE PROJECT NUMBER EXHIBIT 3886 2