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HomeMy WebLinkAbout2004-09-14; City Council; Resolution 2004-3051 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 Exhibit 1 RESOLUTION NO. 2004-305 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEhIENT WITH THE ENCINA WASTEWATER AUTHORITY FOR TEMPORARY USE OF THE CARLSBAD WATER RECYCLING FACILITY WHEREAS, the Encina Wastewater Authority (“Authority”) plans to construct a new administration building which began on June 2004; and WHEREAS, the Authority needs to relocate their staff to temporary facilities while the existing administration building is demolished and the new facilities are under construction; and WHEREAS, the City of Carlsbad (“City”) desires to allow the Authority to house temporary facilities on its Carlsbad Water Recycling Facility property as described in the Agreement Regarding Use of Carlsbad Water Recycling Facility (“Agreement”); and WHEREAS, the City and Authority have consulted regarding the installation and location of the temporary facilities, and have assessed the utility infrastructure, cost effectiveness of the installation of temporary facilities, and minimization of disruption of the property. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, as follows: 1. That the above recitations are true and correct. 2. That the Agreement attached hereto as Exhibit “A” is hereby approved. Ill Ill Ill Ill Ill Ill 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 3. That the City Manager is hereby authorized to execute the Agreement on behalf of the City. PASSED, APPROVED AND ADOPTED at a meeting of the City Council of the City of Zarlsbad held on the 14th day of September ,2004 by the following vote, to wit: AYES: Council Members. Lewis, Finilla, Kulchin, Hall and Packard. YOES: None ABSENT: None B ATTEST: -OR- M. WOOD, City Clerk 3 AGREEMENT BETWEEN CITY OF CARLSBAD, THE CARLSBAD MUNICIPAL WATER DISTRICT AND ENCINA WASTEWATER AUTHORITY REGARDING TEMPORARY USE OF CARLSBAD WATER RECYCLING FACILITY Ref Admin 04-7848 The Agreement Regarding Use of Carlsbad Water Recycling Facility (“Agreeiiieut”), dated, 9 .- 1‘7 - 2004, is made by and between the City of Carlsbad (“City”), the Carlsbad Municipal Water District (“District”) and the Eiicina Wastewater Authority (“Authority”), and provides that City and District do hereby authorize Authority to use and occupy the property described herein, under the specified terms and conditions. WHEREAS, Authority plans to construct a new administration building beginning in .lime 2004; and WHEREAS, the Authority needs to relocate staff to temporary facilities while the existing administration building is deinolished and the new facilities are under construction; and WHEREAS, City and District desire to allow Authority to house the temporary facilities on its Carlsbad Water Recycling Facility property as described in attachment A hereto (“the Property”) and to utilize the operations building on that property for specified piiiposes while tlic Authority completes its building program. in exchange for Authority’s provision of spccified supervisory and maintenance services for the property; and WHEREAS, City and District and Authority have consulted regarding the installation and location of the temporary facilities, and have assessed the utility infrastructure of the property, cost effectiveness of the installation of temporary facilities, and minimization of disruption to the property; and WHEREAS, potable water is available at the northeast coiner of the property and may be used to provide watcr to Authority’s temporary facilities; sewer connections are available acjjacerit to the property; and electricity is available from the District’s operations building on the property and other potential locations along a driveway which will house the temporary facilities. WHEREAS, Authority is scheduled to complete construction of the Flow Equalization Joint Use Facility, which will supply secondary treated water to the Carlsbad Water Recycling Facility, and provide storage and pumping capacity to receive recycled water from the Carlsbad Water Recycling Facility. NOW, THEREFORE, each of the parties hereto does agree as follows: 1. PROPERTY AND PARKING AREAS. 1 1.1 PROPERTY. City and District hereby authorize Authority, for the term and in accordance with all of the conditions set forth herein, to use and occupy the real estatc property, building and improvements known as the Carlsbad Water Recycling Facility situated on Aveiiida Encinas south of Authority’s Encina Water Pollution Control Facility in the City of Carlsbad, California (the “Property”). City and District reserve the right to access the Property at any time to conduct any activities on the Property. 1.2 VEHlCLE PARKING. Authority may peniiit vehicles on the Property as Authority deems necessary in connection with Authority’s administrative and operation activities. 2. TERM. 2.1 TERM. The initial tcrm of this Agreement shall be eighteen (1 8) niontlis conimenc i n g on S ep teinb er I , 2 004 (“Coniinenc em en t Date”), and end in g on February 2S, 2006, unless terminated pursuant to the provisions of this Agreement. 2.2 RENEWAL. 11.1 the City and District’s sole discretion Authority may renew this Agreement for not more than two (2) additional six (6) month terms. Authority shall notify City and District in writing no longer than thirty (30) days prior to the expiration of the Agreement tenn that Authority would like to renew. 3. SUPERVISION OF PROPERTY; OPERATION EXPENSES AND UTILITIES. 3.1 SUPERVISION OF PROPERTY BY AUTHORITY. In consideration for allowing Authority to occupy the Property, Authority shall supervise the Property throughout the entire Agreement Term as described in Section 3.2 below. 2 . -- 3.2 UTILITIES: OPERATING EXPENSES. (a) with operating and niaintaining the Carlsbad Water Recycling Facility operations building. “Operating Expenses” is defined, for purposes of this Agreement. as all reasonable costs incui-red by Authority, if any, for: Authority shall directly pay for all Operating Expenses associated The operation and general maintenance, i ti good order and condition, of the Carlsbad Water Recycling Facility operating building, including windows, plumbing, electrical wiring and outlets, HVAC, and lighting fixtures and fac i 1 it i es . Trash disposal services, if any. Maintenance of Authority signs, if any. Fire detection system including sprinkler system ni a int enaiice and repair. Daily security inspections of the Property. Janitorial Services. Any other services that is referred to elsewhere in this agreement as an “Operating Expense.” Maintenance of tlie water recycling facility in a standby condition until commencement of operation of the facility subject to any conditions and limitations mutually agreed upon in writing pursuant to a pre-conveyance inspection attended by representatives of the City, District and Authority to ascertain the then existing condition of the The cost of water. gas, electricity, telephone and sewer service to the Property associated with the Autliority’s use of tlie operations building and temporary structures on Property. The Property may be separately metered to deteniiine City and District’s use, if any, of tlie Property utilities during the term of this Agreement. water recycling facility on the property,: I (17) Authority may install utility facilities to serve its relocatable buildings to be installed on the Property. Authority shall pay for all installations, connections, removal, and related fees for such utilities, and shall pay for all utility services to its relocatable buildings on the Property. 3.3 LANDSCAPING SERVICES. Authority will contract for and manage landscape maintenance services for the Property. The cost of landscape maintenance services for tlie Property will be paid by the Authority and billed to the City. 3 4. I PERMITTED USES The Property shall be used and occupied only for the following uses ( Peiinitted Uses”): (a) Installation and occupation of relocatable building to house Authority’s staff during the demolition and construction of hiiildings on Authority’s property, with the coiifiguration of the rclocatable buildings to be mutually approved by the City Manager and Authority’s General Manager; (b) Authority’s use of the Carlsbad Water Recycling Facility operations building, to conduct meetings, perform reclaimed \\.:iter analyses, and provide restroom and locker facilities to SlL1t-f; (c) A iithori ty’s installation of fiiriiisliings therein; (d) Other related uses not in conflict with the City and District use o I’ the Property; and, (e) Other related uses made necessary or appropriate by the Rcvised Basic Agreement for Ownership, Operation and Maintenance of a Joint Sewerage System, as aincnded, and the R cv i sed Establishment Document for the Eiic i iia W ut ewater Aiitliority, as amended, by and between the City oi’C‘arlsbad, (‘ily of Vista, City of Encinitas. Leucadia Wristcwatcr District, \‘allecitos Water District and Buena Sanitation District. 4.2 CEQA EXEMPTION This we is exempt from the provisions of the California Environmental Quality Act as coiistniction or placeinelit of minor structiires accessory to existing facilities; and new construction of limitcd small new facilities; installation of sinall new eqiiipiiient and facilities in small structures; and conversions of the use of small cxisting structures. (14 Cal. Code Regs. 4 I53 I I ; 15303). 42 COM PLlANCE WITH APPLICABLE REGULATIONS. (a) Throughout the terms of this Agreement and any renewal thereof, City and District employees and contractors shall have unlimited access to the property for their purposes. City and District may inspect Authority’s installatioiis and improvements to ascertain compliance with this agreement. (b) Except as otherwise provided in this Agreement, Authority hcreby accepts the Property in its condition as of the Comnienceinent Date subject to all applicable zoning, 4 municipal, county and state laws, ordinances and regulations governing and regulating the Permitted Use of the Property. 5. AUTHORITY'S OBLIGATIONS. 5.1 OBLIGATIONS (a) (i) Subject to the provisions of paragraphs 3.2 (Operating Expenses), and 4.1 (Permitted Use), Authority at Authority's expense, shall maintain the Property in good ordcr and co I 1 dit ion. The City and District shall continue maintenance of tlie foundation, exterior walls, structural condition of interior bearing walls, and the roof of the Carlsbad Water Recycling Facility operations building. City and District shall also repair any damage to structures or mechanical equipment associated with the water recycling facility on the property, except that Authority shall be responsible for damage to the extent that such damage was caused by the negligence, intentional acts or omissions of the Authority, it's officers, employecs. agents, contractors or invitees caused by sole negligence. (iii) Authority shall provide written notice to City and District if ;I portion, section, fixture, or other aspect of. the Property is in necd of maintenance or repair to be perfomied by City or District. Commencement Date subject to all applicable zoning, miiniciyal, county and state laws, ordinances and regulations gowrning and regulating the Peiiiiitted Use of the Property. (c) If the Authority fails to perfonii its obligations under paragraph 5. I or under any other paragraph of this Agreement, City or District may perfonii such obligations on Authority's behalf to put the Property in good order, condition and repair and charge tlic Authority any expenses incurred in doing so. Failure to maintain the property may also be grounds, in City and District's sole discretion, for termination of the Agreement upon 30 days written notice of termination, unless within that 30 day pcriod the Authority cures such stated failures to tlie satisfaction o1'rhe City and District. termination Authority shall surrender the Property to City and District in substantially the same condition as received, fi-ee of dekris, with the exception of ordinary wear and tear. Any damage or deterioration of the Property shall not be deemed ordinary wear and tear if the same could have been prevented by (ii) (b) Authority hereby accepts the Property in its condition as of the (d) On the last day of the term, or upon that of any earlier 5 good inaintenance practices. Authority shall repair any damage to the Property occasioned by the installation or removal of Authority’s relocatable buildings, alterations, f~ii-~iisliings or equipment. Notwithstanding anything to the contrary otherwise stated in this agreement, Authority shall leave any electrical distribution system and panels, lighting fixtures, air conditioning fixtures, and plumbing in the Carlsbad Water Recycling Facility opcrating building in good operating condition. (e) Authority shall pay, upon demand all claiins for labor or materials to or for Authority at or for use at the Property. (f) All alterations, improvements, additions and utility iiistallations, which may be made on tlie Property during the term of this Agreement shall be the property of City and District and shall remain upon and be surrendered with the Property at tlie expiration of the Agreement teim, with the exception of relocatable structures installed by the Authority and their associated infrastructure shall be removed at the end of the terni of the Agreement at tlie Authority’s expense. Notwitlistanding tlic provisions of this paragraph. Authority’s machinery and equipiiient, other than that which is affixed to tlie Property so that it cannot be removed without niaterial daniage to the Property, shall remain the property of the Authority and niay be rciiioved by Authority. opcration of the Carlsbad Recycling Facility Lipon substantial completion of the Flow Equalization Joint Use project and in anticipation of execution of an Operation and Maintenance Agreement between Carlsbad and tlie Authority. (g) Authority shall cooperate and assist in the final start-up and 6. HAZARDOUS MATERIALS. 0. I any flammabIe items, explosives, radioactive materials, hazardous or toxic substances, niaterial or waste or related materials, including any substances cicfined as or included in the definition of “hazardoiis substances”. “hazardous wastes”, “hazardous materials” or “toxic substances” now or subsequently regulated under any applicable federal, state or local laws or regulations. As uscd in this Agreement, the terrn “Hazardous Material” means 6.2 Authority shall not cause or knowingly permit any Hazardous Material to be generated, produced, brought upon, used, stored. treated or disposed of in or about the Property by Authority, its agents, employees, contractors, or invitees without the prior written consent of City or District, exccpt for items and substances commonly used in wastewater laboratory analysis or that may be present in tlie wastewater analyzed. City or District shall be entitled to take into account such other factors or facts as City or District may reasonably detennine to be relevant in determiniiig G 7. whether to grant or withhold consent to Authority’s proposed activity with respect to Hazardous Material. In no event, however, shall City or District be required lo consent to the installation or use of any storage tanks on the property. City or District represents that tlie Property is fi-ee from the presence of hazardous materials. RANCE 7.1 111 i nilnuin 1 iiii i t indicated herein: Authority shall maintain the following types of coverage and (a) Comprehensive General Liability Insurance. $ I ,000,000 combined single-limit per occurrence for bodily injury, pcrsonal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits shall apply scparately under this contract or the general aggregate shall be tu’ice the required per occurrence limit. (b) Automobile Liability (for tlie use of an aiitomobile by Authority’s employees or agents or subcontractors in conjunction with its use of the premises) $1,000,000 combined single-limit per accident for bodily iiijiiry and property cl ani age. (c) M’orkcr’s Compensation and Employer’s Liabi lity. Worker’s (‘onipensatioii limits as required by the Labor Code of the State 01’ California and Employer’s Liability limits of .Fl,OOO.O00 per accident for bodily injury. (d) Authority shall ensure that the policies of insurance required iiiider this agreement contain, or are endorsed to contain, the tiJllowing provisions: (i) (ii) (iii) The City and the District shall be designated as an additional insured on all policies excluding Worker’s Compensation and Employers’ I iability. Authority’s coverage shall be primary in tlie event that it overlaps policies in effect for the benefit of City and District. Authority shall obtain occurrence coverage for all policies. Authority shall furnish certificate of insurance and endorsements as required to tlie City and the District before coniinencement of this Agreement. This insurance shall be in force during the life of tlie agreenient and shall not be canceled without thirty (30) days prior written notice to the City and the District sent by certified mail. 7.2 Specified coverages against loss may be purchased through customary commercial insurance carries or provided tlirough risk sharing 7 pools created pursuant to, and operated and inailitailled in conformance with, the California Joint Powers Insurance Authority law-. I 8. INDEMNITY. S. 1 AUTHORITY IDEMNITY Authority shall indemnify and hold harniless City and the District from and against any and all claims arising from Authority’s use of the Property including any activity or work, permitted or suffered by Authority on or ahout the Property. Authority shall further indemnify and hold harniless City froiii and against any and all claims arising from any breach or default in thc performance of any obligation of Authority under the ternis of this Agreement, or arising from any act or oinission of Authority, its officers, employees, agents, contractors, or invitees, and from and against all costs, attorneys’ fees expenses and liabilities incurred in tlic defense of any such claim of any action or proceedings brought against City or District by rcason of any such claim. Authority upon notice fi-om City or District shul I defend the City or District at Authority’s expense by counsel reasonably satisfactory to City and District shall cooperatc with Aiitliority in such defense. 5.2 SURVIVAL OF IDEMNITY The indemnity provided for in 8.1 above shall survive the temi of this agreement and any renewal period. 9. ASSIGNMENT Authority shall not voluntarily or by operation of law assign, transfer, mortgage, or otherwise transfer or encumber all or any part of Authority’s interest in this Agreement or in the Property. 10. DEFAULT; REMEDIES. IO. 1 DEFAULT BY AUTHORITY. The occiirrence of any one or more of the following events shall constitute ;I material default of this Agreement by Authority: (a) The failure by Authority to observe or perforni any of the covenants, conditions or provisions of this Agreement. (b) Where such failure shall continue for a period of thirty (30) days after written notice thereof from City or District to Authority, provided that if the nature of Authority’s noncompliance is such 8 that more than thirty (30) days are reasonably required for its cure, then Authority sliall not be deemed to be in default if Authroity commenced such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. 10.2 CITY’S AND DISTRICT REMEDIES. In the event of any such material default by Authority, City or District may at an\! time thereafter, with notice or demand and without limiting City or District in the exercise of any right or remedy, whicli City or District may have by reason of such default: (a) ‘fcriiiinate Authority’s right to possession of the Property by any lawful means, in whicli case this Agreement and the term hereof shall tcrminate and AUTHORITY sliall surrender possession of the Property to City or District within thirty (30) days. In such event City or District shall be entitled to recover from Authority damages incurrcd by City or District by reason of Authority’s default. (b) Pursue any other legal remedy now or hereafter available to City 01- District. 11. SEVERABILITY. The invalidity of any provision of this Agreement as determined by ;I court of competent jurisdiction, shall in no way affect the validity of any other provision hereof. 12. TIME OF THE ESSENCE. Time is of the essence with respect to the obligations to be performed under this Agreem eiit. ..- 9 13. NOTICES. Any notice required or permitted to be given liereunder shall be in writing and may be given by personal delivery or by certified mail, and if given personally or by mail. shall be decmed sufficiently given if addressed to Authority or to City or District at the address noted above the signature of the respective parties, as the case niay be. Either party niay by notice to the other specify a different address for notice purposes. A copy of all notices required or permitted to ke given to City or District hereunder shall be concurrently transmitted to such party or parties at such addrcsses as City or District may from time to time designate by notice to Authority. 14. WAIVERS. No wniwr by either Party of any provision hereof sliall be deemed a waiver of any other provision hereof or of any subsequent breach by either Piu-ty of the same or any other provision. City or District's consent to, or approval of, iiny act shall not be deemed to render unnecessary the obtaining of City or District's consent to or appro\,al of-any subsequent act by Authority. The acceptance of money hereunder by City or District for the payment of any costs hereunder by Authority shall not bc a waiver of any preceding breach by Authority of any provision hereof, regardless of either City or District's knowledge of such preceding breach at the time of acceptance of such money. 15. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 16. BINDING EFFECT; CHOICE OF LAW. This Agreement shall be governed by the laws of the Sate of California. and venue for any disputes arising from this Agreement sliall be North San Diego Co1111ty. 10 17. ENTIRE AGREEMENT. This Agreement contains all agreeineiits of the parties with respect to any matter mentioned herein. No prior or contemporaneous agreement or iunderstanding pertainins to any such matter shall be effective. This Agreement may be modified in writing only, sigiicd by the parties in interest at the time of the modification. CITY OF CARLSBAD ENCINA WASTEWATER AUTHORITY: 0200 Avenida Encinas Carlsbad, CA 92009- 1005 At tenti on : BY Its Mayor Its Exccuted 011 q- 17-04 Executed on CARLSBAD MUNICIPAL WATER DISTRICT 5950 El Camino Real Carlsbad, CA 9534108 Its President Executed on 7- 11-olt 11