HomeMy WebLinkAbout2019-07-09; City Council; Resolution 2019-121RESOLUTION 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)
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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