Loading...
HomeMy WebLinkAbout2019-07-09; City Council; ; Memorandum of Understanding between the City of Carlsbad and North County Transit District for temporary use of right-of-way to construct the Agua Hedionda Sewer Lift StaCA Review ~~=·v CITY COUNC I L St aff Report Meeting Date: To: From: Staff Contact: Subject: July 9, 2019 Mayor and City Council Scott Chadwick, City Manager David Hull, Associate Engineer david.hull@carlsbadca.gov, 760-603-7322 Memorandum of Understanding between the City of Carlsbad and North County Transit District for temporary use of right-of-way to construct the Agua Hedionda Sewer Lift Station. Recommended Action Adopt a Resolution authorizing execution of a Memorandum of Understanding (MOU) between the City of Carlsbad and North County Transit District (NCTD) for temporary use of the NCTD right-of-way to construct the Agua Hedionda Sewer Lift Station, Capital Improvement Program, Project No. 3886. Executive Summary On May 19, 2015, City Council approved Resolution No. 2015-124 awarding a contract to Pulice Construction, Inc., (Contractor) for construction of the Agua Hedionda Sewer Lift Station (AHLS) and Vista/Carlsbad Interceptor Sewer Reaches VC11B-VC15 (Project). On April 12, 2016, the City Council approved Resolution No. 2016-065 authorizing an MOU between the City of Carlsbad and NCTD for temporary use of the NCTD right-of-way; this MOU expired on Dec. 31, 2017. The City of Carlsbad currently holds an easement over a portion of the Project area that is within the NCTD right-of-way. However, the city requires the temporary use of NCTD right-of- way outside of the city's current easement to complete the Project. Additionally, due to construction delays, the Project's expected completion date has been extended and requires a new MOU to replace expired Resolution No. 2016-065. Staff recommends authorizing the proposed MOU to facilitate Project completion. Discussion The City of Carlsbad entered into an easement agreement (Agreement) with NCTD for the · current easement, dated Oct. 24, 2000, to construct, use, operate, own and maintain infrastructure facilities on NCTD property for the Project. The Agreement was subsequently amended on Dec. 19, 2013, to expand the easement area and to add the City of Vista as an additional grantee. The Agreement was amended a second time on Feb. 9, 2018, for inclusion of additional utilities within the easement area. July 9, 2019 Item #9 Page 1 of 9 The city requires the temporary use of NCTD right-of-way outside of the city's current easement to complete construction of the AHLS and associated activities. This area (as shown on Exhibit A of the MOU) is currently utilized as natural habitat mitigation under a permit between NCTD and the United States Army Corps of Engineers (USACE). The USACE permit requires that NCTD restore portions of the NCTD property for revegetation and habitat creation. Within the original MOU, the city agreed to offset mitigation site disturbance that is attributable to the city's construction activities by restoring the area to a condition that is acceptable to both NCTD and the applicable permitting agencies. The city has completed a majority of the mitigation site restoration measures, which were accepted by USACE on May 8, 2017, and the Regional Water Quality Control Board on July 9, 2018. Remaining work includes removal of a temporary fence and installation of a permanent fence along the perimeter of the mitigation site. Project delays have resulted in deferral of this remaining work. Upon completion of the final conditions set forth in the proposed new MOU, all subsequent maintenance and permit requirements will be the responsibility of NCTD and the city will be reimbursed by NCTD for the cost of a new permanent fence. Fiscal Analysis In accordance with the conditions of the new MOU, the city negotiated a change order item with the Contractor for the remaining mitigation site work, which includes permanent fencing around the mitigation site. NCTD will reimburse the city $9,905.17 for costs associated with the permanent fencing. The cost for the work was provided by the Contractor via a proposal, as requested by the city. Next Steps Staff will route two original copies of the MOU for signature and submit to NCTD for execution. NCTD will return one original copy for city records. Environmental Evaluation (CEQA} 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 of this MND, and no further environmental review is required. Public Notification and Outreach None required. Exhibits 1. City Council Resolution. 2. Location Map. July 9, 2019 Item #9 Page 2 of 9 RESOLUTION NO. 2019-121 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING EXECUTION OF A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CARLSBAD AND NORTH COUNTY TRANSIT DISTRICT (NCTD) FOR TEMPORARY USE OF THE NCTD RIGHT-OF- WAY TO CONSTRUCT THE AGUA HEDIONDA SEWER LIFT STATION, CAPITAL IMPROVEMENT PROGRAM {CIP) PROJECT NO. 3886. EXHIBIT 1 WHEREAS, the City Council of the City of Carlsbad, California, has determined it necessary, desirable and in the public interest to execute a Memorandum of Understanding (MOU) between the City of Carlsbad and NCTD for the temporary use of NCTD's right-of-way to construct the Agua Hedionda Sewer Lift Station, CIP Project No. 3886 (Project); and WHEREAS, on Oct. 24, 2000, the cttY and NCTD entered into an easement agreement for the city's construction, use, operation, ownership and maintenance of new infrastructure facilities on NCTD property for the Project, which was recorded on Jan. 4, 2001, with the San Diego County Recorder's office as Document No. 2001-0005893; and WHEREAS, on Dec. 6, 2011, City Council adopted Resolution No. 2011-276, approving a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program for the Project; and WHEREAS, on Dec. 19, 2013, the city and NCTD entered into an amendment to the easement agreement for expansion of the area for infrastructure facilities and addition of the City of Vista as a grantee, which was recorded on Jan. 14, 2014, with the San Diego County Recorder's office as Document No. 2014-0017925; and WHEREAS, on May 19, 2015, City Council authorized award of the contract for construction of the Project to Pulice Construction through Resolution No. 2015-124; and WHEREAS, on April 12, 2016, City Council adopted Resolution No. 2016-065, authorizing an MOU between the city and NCTD for temporary use of NCTD's right-of-way; and WHEREAS, the MOU expired on Dec. 31, 2017; and WHEREAS, on Feb. 9, 2018, the city and NCTD entered into a second amendment to the easement agreement for inclusion of additional utilities within the easement area, which was recorded on March 6, 2018, with the San Diego County Recorder's office as Document No. 2018-0086899; and WHEREAS, the city requires the temporary use of additional area from NCTD for construction of new infrastructure, which is located outside the city's existing easement; and July 9, 2019 Item #9 Page 3 of 9 EXHIBIT 1 WHEREAS, a portion of the additional area required by the city is a habitat mitigation site being created by NCTD in compliance with a permit issued to NCTD by the United States Army Corps of Engineers; and WHEREAS, the city and NCTD have negotic1ted an MOU that defines the terms for the city's temporary use of the additional area, and subsequent property restoration at completion of the Project; and WHEREAS, both parties will benefit from this MOU and NCTD will reimburse the city for the cost of permanent fencing in the amount of $9,905.17. NOW, THEREFORE, BE IT RESOLVED by the City Coun~il of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute the MOU between the City of Carlsbad and NCTD, attached hereto as Attachment A. 3. That the Deputy City Manager, Public Works, is authorized to execute amendments to said MOU related to extensions of its term if additional time is necessary to complete the Project. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 9th day of July, 2019, by the following vote, to wit: AYES: NAYS: ABSENT: Hall, Blackburn, Bhat-Patel, Schumacher, Hamilton. None. None. MA~~y~n lizm({M Rm7!l~ BARBARA ENGLESON, City Clerk (SEAL) ,,,,11111111111111,,, ,,,,, ~ CA b ,,,,, ~"'Qt"" r(~ ~/~ ~\ .. -~~~~ ~L-._/ ~ ·-.. ~~ I::::l-\-v~ ~ 0 [ I 2':.A \ C ~ \ \~_p;/ J ~ ~ .. ' -· ....... ~ -❖. '#tf (·•• .. ······~,'r ~ ~,,,,,,, IFOf\ ,,,,,,-s- 111111,11111111111' July 9, 2019 Item #9 Page 4 of 9 NORTH COUNTY TRANSIT DISTRICT MOU 2019-ZD 230.5-0719-MOU-CSBD 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; and WHEREAS, the Parties entered into an Easement Agreement dated October 4, 2000 granting City the right, in perpetuity, to construct, use, operate and maintain storm drain and sewer facilities on NCTD property, which is on file with the San Diego County Recorder's office as Document No. 2001-0005893, dated January 4, 2001; and WHEREAS, the Parties entered into an Amendment to Easement Agreement dated December 19, 2013 for the new infrastructure, which is on file with the San Diego County Recorder's office as Document No. 20140017925, dated January 14, 2014; and WHEREAS, the Parties entered into a Second Amendment to Easement Agreement dated February 9, 2018 to expand the infrastructure to include additional underground utilities, which is on file with the San Diego County Recorder's office as Document No. 2018-0086899, dated March 6, 2018 (collectively, the "Easement Agreement"); and 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; and 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, the Parties entered into an MOU dated July 15, 2016, NCTD Doc No. 2015-22, ("MOU 2015-22") for the mutual benefit of both Parties. MOU 2015-22 expired on December 31, 2017 and the CITY requires additional time to complete construction of the City Lift Station and for continued use of the mitigation area; and WHEREAS, City provided and installed the hydroseed, and the mitigation site was accepted by the Regional Water Quality Control Board on July 9, 2018, and by the Army Corps of Engineers on May 8, 2017. Remaining work includes removal of a temporary fence and installation of the permanent fence along the perimeter of the eastern mitigation site; and WHEREAS, the Parties wish to enter into a new MOU to memorialize their agreement and to carry out the purposes set forth above. July 9, 2019 Item #9 Page 5 of 9 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. 2. To remove the temporary chain link fencing installed during construction and install permanent t-post with three-strand wire fence along the perimeter of the east Mitigation Site. Fencing shall not be placed within the 25' Foul Zone. NCTD shall reimburse the City for costs associated with the permanent fencing. 3. 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/. NCTD agrees to expedite review of these submittals and work cooperatively to provide the necessary approvals. Cost for Flagging shall be paid by NCTD. 4. Comply with all applicable Federal/State/Local requirements, codes, and laws associated with activities conducted in the NCTD ROW. 5. Comply with all terms and conditions of the Right-of-Entry (ROE) Permit issued by NCTD to City. NCTD AGREES: 6. Grant the CITY a Right-of-Entry (ROE) permit for the purposes of performing the work outlined in this MOU, and pay for related Flagging costs per NCTD policy. 7. Pay for costs associated with any permanent fencing around the Mitigation Site, in no event to exceed $9,905.17. 8. To perform long-term maintenance of the Mitigation Site pursuant to the conditions in the 401- Water Quality Certificate Permit (09C-093) issued by the San Diego Regional Water Quality Control Board. 9. Comply with Federal/State/Local requirements, codes, and laws. THE PARTIES MUTUALLY AGREE: 10. The above Recitals are true and correct and are integrated as part of this MOU. 11. 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 City of Carlsbad 81 O Mission Ave, Oceanside, CA 92054 5950 El Camino Real, Carlsbad, CA 92008 Attn: Real Estate Department Attn: Terry L. Smith Phone: (760) 966-6556 Public Works -Utilities Engineering Phone: (460) 602-2751 E-mail: terrv .sm ith@carlsbadca.gov 12. That unless it is amended by the Parties in writing, this MOU shall terminate on June 30, 2020, 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. 13. The indemnification provisions of this MOU shall survive termination of the MOU. 14. 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. 15. All claims, counterclaims, disputes and other matters in question between the Parties arising out of or relating to this MOU or its breech will be decided by arbitration if the Parties mutually agree or in a court of competent jurisdiction in accordance with item 16. July 9, 2019 Item #9 Page 6 of 9 16. 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. 17. Neither Party nor any officer thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by the other Party under or in connection with any work, authority or jurisdiction delegated thereto under this Agreement. It is understood and agreed that, pursuant to Government Code section 895.4, the Parties shall mutually defend, indemnify and save harmless one another, including all officers, agents and employees from all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Government Code section 810.8) occurring by reason of anything done or omitted to be done by either Party under or in connection with any work, authority or jurisdiction delegated thereto under this Agreement. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 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 <[fi dt-L O J- Matthew 0. Tucker Executive Director DltiJn'J/ 17 AND LEGALITY CITY ~CAR:!D ~ fi ~ MattH~ ~~ Mayor r; /10/19 Date Signed APPROVED AS TO FORM cl L ,· / Name: --=-----~ Deputy City Attorney ._,, July 9, 2019 Item #9 Page 7 of 9 EXHIBIT A NORTH COUNTY TRANSIT DISTRICT MITIGATION SITE CITY OF CARLSBAD 2014 AERIAL PHOTO July 9, 2019 Item #9 Page 8 of 9 NOT TO SCALE PROJECT NAME LOCATION MAP AGUA HEDIONDA LAGOON SITE AGUA HEDIONDA LIFT STATION & VISTA/CARLSBAD CONSTRUCTION AND HABITAT MIT/GA T/ON SITE PLOTTED BY: SCOTT EVANS PLOT DATE:3/17/16 PA711:D:\UTIUTIES DEPARTMENT\LOCATION MAPS\AUTOCAD\VC SEIIER MITIGATION.DWG AGUA HEDIONDA LAGOON PROJECT ·NUMBER 3886 EXHIBIT 2 \ July 9, 2019 Item #9 Page 9 of 9