HomeMy WebLinkAbout2024-02-06; City Council; ; Conference with Legal Counsel Regarding Anticipated Litigation() . . '
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CITY COUNCIL Staff Report
Meeting Date:
To:
From:
Staff Contact:
CA Review CJ(. M
Subject
Feb. 6, 2024
Mayor and City Council
Cindie I<. McMahon, City Attorney
Cindie I<. McMahon, City Attorney
Conference with Legal Counsel Regarding Anticipated Litigation
Recommended Action
That the City Council, by motion, authorize a closed session regarding significant exposure to
litigation of one case, pursuant to Government Code Section 54956.9(d)(2).
Feb. 6, 2024 Item #1 Page 1 of 1
Exhibits:
1.Agreement between the Buena Sanitation District and City of Carlsbad for the Lease of
Additional Capacity in the Encina Outfall
Exhibit 1
AGREEMENT BETWEEN THE BUENA SANITATION DlSlRICT AND CITY OF CARLSBAD FOR THE
LEASE OF ADDITIONAL tAPACITY IN THE ENCINA OUTFALL
Thh Agreement, made and entered tnto this 15th day of December ,
1987, by and between BUENA SANITATION DISTRICT, a county sa'1itation di strid, formed
and existing under the County Sanitation District Aet (Section 4700, et seq .• Health
and Safety Code) hereinafter referred to as "Buena" and the CITY OF CARLSBAO, a
municipal corporation hereinafter rreferred to as "Carlsbad."
WITNESSETH:
1. Carlsbad and Buena Sanitation D1str1ct entered into an Agreement for the lease af capacity in a land sewage outfall on June zo, 1966.
2. The City of Carlsbad and Buena Sanitation D1strict rescinded the 1966
Agreement and replaced it w;th a new agreement fn 1981.
3. Now the City of Carlsbad desires to temporarily lease additional capacity
in the land sewage outfall from Buena.
NOW THEREFORE, the parties hereto agree as follows:
Sectjqn 1. EFFECTIVE DATE: Th1s agreement shall take effect July 1, 1988.
Sectjon 2. LEASE OF CAPACITY: Buena agrees to lease to Carlsbad on a
temporary basis .8 peak mgd until a replacement sewer is constructed in accordance with Section 3 of this Agreement.
Section 3. NEW COHSTRUCTION: When peak flows in the interceptor reach 75% of the depth of the pipe in any reach of the Enc;na Outfall, as determined by the
Buena Sanitation District, Carlsbadshall construct a replacement outfall to e11minate the need for th1s lease. When the construction 1s completed this lease shall
terminate. when flows reach 75% of the depth of fiow of the pipe all payments
required in Section 4 of this agreement shall double and they w111 double again each year until the flows are re111oved from the line. lf other unanticipated capacity
problems arise relat1ng to th1s lease, Carlsbad, at Buena's request, w111 be required
to pay their share to correct the problem.
• Sect1on 4. TERMS OF LEASE: Carlsbadshall pay to Buena $7,500 per year for the term of this lease. If permanent capacfty should become available for acquisition Carlsbad shal 1 retain the option to acqui re said capacity and apply
previous lease payments towards the acquisition price.
Sect1on 5. C0NNECTIONS: Carlsbad, at its sole expense, shilll be
respons1ble for the construction, installation, maintenance, repair, replacement or reconstruction of any necessary transmission faciHt;es from the Carlsbad Service Area
to the Encina Outfall and for the connection of such transmission facilities together with any necessary appurtences to the Encinas Outfall. •
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Section 6. ENGINEER'S APPROVAL: The locationt installation, construction, repair (except emergency repai rs) replacement and/or reconstruction of
the connections to the Encinas Outfall shall be according to plans and specifications first approved by Buena's engineer.
Sectfon 7. LIMITATIONS 0N TYPE AND CONOITION OF SEWAGE: A 11 se w age discharged by Carlsbad into Encina Outfall shall conform to the oTdinances, resolution, rules and regulations which Buena must adopt in accordance with Agreements of the Encina Joint Powers concerning the conditiori of 'sewage and waste pennitted to
be discharged to the Joint System or any part thereof.
Section 8. METERING: Carlsbad shall, upon request øf Buena. provide a device to meter the flow of sewage in the Encina Outfall at a point below any lateral connect1on, but above the Encina Sewage Treatment Fac1lity. The meter will be installed and operated solely at Carlsbad's expense.
Section 9. INFILTRATION: It ts understood and agreed that there will be fnflow of water 1nto the Enc1na outfall because of leakage between the Carlsbad connection and the Enc1na Treatment Plant., Buena shall estimate the total waters that infiltrate the Encina Outfall between said connection and tre-atment plant (sometimes referred to harein as "infiltration") and apportion the same among all of such users of the Encina Outfall in the proportion that the amount of s~wage dtscharged into the Enc1na Outfall by each such user bears to the total amount of sew.-ge discharged 1nto the Encina Outfall by all of such users of sa1d Outfall. The amount of infiltration apport1oned to each such user shall be deemed a part of the sewage of such user for all purposes.
Section 10. MAINTENANCE CHARGE:
1. During such per1od as Carlsbad 1s author1zed to use a portion of the
capacity of the Encina Outfall, whether as lessee or owner of such capacity1 Carlsbad shall pay to Buena a share of the cost of the matntenance and operation of the Enc1na Outfall. said share of the cost to be in proportion to the average flow of sewage
discharged 1nto the Encina Outf•ll through Carlsbad's connect1ons to said outfall as
compared to the total average flow of sewage discharged into said Encina Outfall .
2. Buena shall b111 Carl.sbad for its share af tlle cost from t1me to time, but at least annually, and Carlsbadshall pay its share of the cost to Buena wtthin thirty (30) days after being so billed.
3. Buena shall keep accurate records of this cost of ma1nta1ntng and operating the Enci.na Outfall and such records shall -be open to 1nspection by Carlsbad
at all reasonable times .
Section 11. CHARGE AGAINST CAPACITY RIGHTS IN ENCINA TREATMENT PLANT AND OCEAN OUTFALL: All sewage d1scharged into the Enc1na Outfall through Carlsbad's connection, under the terms of thh Agreement and thereafter discharged into. thø Encina Treatment Plant, and all infiltration allocable to Carlsbad as determined by Section 9 of this Agreement. shall be charged against Car-lsbad's capacity r1ghts in and to the Encina Treatment Plant and Ocean Outfall.
Sectjon 12. REPAIRS: The Encina Outfall Sewer shall be maintained by Buena in good repair and working order in accordance with sound engineertng practices. It shal 1 be the duty of Buena to make repairs on satd Encina Outfall requ1red to keep such outfall sewer in good operating condft ion. Except as prov1ded in Section 13, t he cost of i ll repairs shall be part of the maintenance cost of the Encina Outfa]l.
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Section 1~. INTERRUPTION OF SERVICE: In the event of an interruption of
services to Carlsbad fn the Encina Outfall, as a result of disastert operat111n of
State or federa1 law, discontinuance or interruption of service to Buena by the Encina
Treat111ent Plant or Ocean Outfall, or any other cause beyond the control of Buena,
Buena shall bear no liabfl;ty and shall be held harmless by Carlsbad frolli any claims
and 1iabil1t1es for any 1njury to or damage to any person or persons or property or
for the death of any person or persons ar-Ising from or out of such 1nterruption of
service or for any other damages or costs incurred by Buena as a result of such
interruption of service.
Sectioo 14. ARBITRATION: Except as otherwise prov1ded herein, all
controver-sies rais1ng out of the interpretation or appltcation of this agreement or
the refusal of either party to perform the whole or any part thereof shall be settled
by arbitration in accordance with the provisions of this sect1on and where not
provided by this section, in accordance with statutory provisions of the State of
Californta then in force. The controversy shall be subnitted to a board of three (3)
arbltrators which shall be appointed, one by Buena, one by Carlsbad and the third by
the ffrst two. The party destr;ng arbitratton shall notify the other party by a
written notice stating the follow1ng: (1) that it desires arbitration, (2) the
controversy to be arbitrated, (3) that it has appointed its nominee, and (4) that it
request the other party to appo1nt 1ts nom1nee. W1th1n th1rty (30) days from the
receipt of said notice the other party shall appoint its nominee . Within fifteen (15)
days afte.r the last party has appointed its nominee the two nominees shall appe>int the
th;rd. None of the arbitrators shall be a res;dent of, or taxpayer in, or own
property in, or have a place of business in, or be employed in or by, or have any
contract wfth, or be an officer or employee of, either party. The arb1trat1on board
shall hold at least one hearing and, at least ten (10) days befo.re said hearing, shall
give each party written notice thereof. The arb itration shall be restr1cted to
matters relative to that stated 1n the notice requesting arbitration. The arb1trat1on
board shall have no authority to add to or subtract from this agreement. Each party
shall be given an opportunity to be heard and to present ev1dence. Upon conclusion of
the hearing or hear1ngs, the arbf trat1on board shall reduce their findtngs af faet,
conclusions of law and the award to writing, and sha11 sign the same 11nd deliver one
signed copy thereof to each public agency. Such award shall be final and binding upon
both part fes. A majority find1ng shall govern 1f the arbitrators' determination is
not unanimous. Each party shall pay its own expenses, including the expenses of the
arb1trator which it nominates. The expenses of the third arbitrator and the
administrative costs of the arbitration proceedings shall be shared equally.
Any Controversy wh1ch can be determined by an engineer's findings and which
under this sect1on could be submttted to arbttration may, 1f the parties thereto agree
in writ fng to do so, be submttted to a named engineer who shall be the so1e
arbitrator.
Such engineer shall be a member of the American Society of Civil Engineers
and shall be disinterested as hereinbefore in this section required of arbitrators on
an arbftrat1on board. He shall proceed 1n the samemannerand shall make f1ndings,
conclus1on and an award in the manner prov 1ded herein for an arbitrat1on board.
Section 15. NOTICE! Notice required or permitted under this agreement
shall be suffic1ently given if in wrfting and if either served personally upon or
mailed by registered or certified mail to the clerk or secretary of the governing body
of the affected party to this agreement.
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Section 16. LIABILITY: Noth1ng herein contained sha11 opetate to relieve Carlsbad of any liab111ty for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement or reconstruct1on of the aforesaid sewer connect1ons and appurtenances or from any action or inaction of Carlsbad or its officers, agents or employees in connection therewith.
. And except as ,provided in Section 17 nothing herein contained sha11 operate to relieve Buena of any lfability for damages to persons or property arising from or out of the installation, construction, operation, maintenance, repair, replacement and/or reconstruction of the aforesaid sewer connections and appurtenances or from any action or inact1on of Buena or of its officers, agents or employees in connect1on therewith.
Section 17. INDEMNJTY: To the extent it may legally do so, Carlsbad shall defend and save and hold free and hamless Buena and its agents, officers and e~ployees from any claims, l1ab11tties, penalties or fines for injury to ur damage to any person or property or for the death of any person arising from or out of any aet ar om1sston of Carlsbad, its agents, officers, employees or contractors, arising from ar out of any defects in the installation, construction. operation. maintenance, repair, replacement or reconstruction of said sewer connections or appurtenances.
Sectjon 18. TIME OF ESSENCE: Time 1s of the essence of thts agreement.
Sectjon 19. SEVERABILITY: lf any sect1on, subsection, sentence, clause, phrase or word of this agreement, or the application thereof, .to any party, or to any other person or circumstance is for any reason held invalid, it shall be deemed severabl e and the val idity or the remainder of the agreement or the appli cation of such provision to the other parties or to any other persons or circumstances shall not be affected thereby. Each party hereby declared that 1t would have entered into this agreement and each sect1on, subsect1on, sentence, clauses, phrase and work thereof irrespective of the faet that one or more sections, subsections, sentences, clauses, phrases or words, or the application thereof to any party or any other person or c1rcumstance be held invalid.
Sectjon 20. This agreement shall be binding upon the parties hereto and the successors and assigns of each of them.
IN WITNESS WHERE0F, each party hereto has pursuant to resolution duly passed and adopted by its respective governing body caused this agreement to be executed the date first above written.
BUENA SAHITATI0N DISTRICT
By ~~ //,Ild~
Clerk of the Board of D1rectors
/1t of
By /~ -t-&1.~-A~U~D-=-E ~A=--. 1.,,1:,14-c-:-Y:~~~=
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AftPROVED av ratF
OISfRIO BOARD OF DIRECTORS
IJ.. ... ,5 .,..9 0 (3/ • ••
~j;rA-~
·:I.ER\ OF THE Oisn;it'f EOARO 0F DIRECTORS
2008 15000
I 2009 30000
2010 60000
I 2011 120000
2012 240000
! 2013 480000
2014 960000
2015 1920000
2016 3840000
2017 7680000
2018 15360000
2019 30720000
2020 61440000
2021 122880000
2022 245760000
2023 491520000
TOTAL (all years) = 983025000
TOTAL (last 4 yrs) = ~ g'l/loopoo
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