HomeMy WebLinkAbout2016-04-12; City Council; Resolution 2016-0651
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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
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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.
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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)
ATIACHMENT A
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 April 2017.
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 Flagging 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 Site as 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
City of Carlsbad
5950 El Camino Real
Carlsbad, CA 92008
Attn: Terry L. Smith Attn: Dahvia Lynch
Chief Planning Officer
Phone: (760) 966-6654
E-mail: dlynch@nctd.org
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 (10) 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 (10) 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)
(ii)
December 22, 2015
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").
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.
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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
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
AGUA HEDIONDA LIFT STATION & VISTA/CARLSBAD
CONSTRUCTION AND HABITAT MITIGATION SITE
PLOTTED BY: SCOTT EVANS PLOT OA TE: J/17 /16 PA 7H: 0: \U11L/71ES OEPAR1MENT\LOCA 710N MAPS\AUTOCAD\ VC SEWER M111GA 710N.DWG
AGUA HED/ONDA
LAGOON
\
PROJECT
NUMBER
EXHIBIT
3886 2