HomeMy WebLinkAboutEncina Wastewater Authority; 2002-03-27;AGREEMENT BETWEEN THE ENCINA WASTEWATER AUTHORITY AND THE CITY OF CARLSBAD FOR THE DESIGN AND CONSTRUCTION OF FLOW EQUALIZATION
PROJECT JOINT USE FACILITIES
Ref: Admin.02.6882
This Agreement (the “Facilities Agreement”) is entered into and effective as of
March 27. 2002 (the “Effective Date”) by and between the Encina Wastewater Authority, a
public agency, hereinafter referred to as “EWA, and the City of Carlsbad, a general law city,
hereinafter referred to as “CARLSBAD, with respect to the following facts:
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RECITALS
CARLSBAD, the CITY OF VISTA, the LEUCADIA COUNTY WATER DISTRICT, the
VALLECITOS WATER DISTRICT, the CITY OF ENCINITAS. and the BUENA
SANITATION DISTRICT, hereinafter referred to collectively as the “Member Agencies”,
are signatories to the joint exercise of powers agreement known as the Revised Basic
Agreement (“RBA) for Ownership, Operation and Maintenance of the EWA Joint
Sewerage System (“Joint System”).
The Member Agencies entered into an Agreement, dated June 28, 1995, Authorizing the
EWA to Acquire Land on Behalf of the Member Agencies (the “1 995 Agreement”) under
which EWA purchased approximately thirty-seven (37) ames of land adjacent to the
Encina Water Pollution Control Facility’s (“EWPCF”) southerly boundary (the “South
Parcel”).
In 2001. the Member Agencies entered into an agreement (the “Transfer Agreement”)
whereby each Member Agency quitclaimed its equitable interest and legal title in the
South Parcel to EWA, and Carlsbad purchased from EWA a portion of the South Parcel
(the “Recycled Water Project Site”) to construct and operate a recycled water treatment
project as depicted on a map attached hereto as Exhibit A.
CARLSBAD intends to utilize flow equalization facilities to be constructed by EWA on
EWA’s portion of the South Parcel (“Flow Equalization Facilities”) in connection with its
recycled water treatment project, as previously consented to by the Member Agencies in
the Transfer Agreement.
Committee recommendation satisfies RBA requirements for modifications to the Joint
Member Agency Approval of the Transfer Agreement by way of Joint Advisory
System.
CARLSBAD and EWA desire to cooperate in the design and construction of the
Recycled Water Project and the Flow Equalization Facilities and provide for the
equitable sharing of costs and allocation of responsibilities.
NOW, THEREFORE, in consideration of the mutual promises, obligations and
covenants set forth herein, CARLSBAD and EWA agree as follows:
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Article 1 : PROJECT TEAM AND REVIEW
1.1 The General Manager of EWA and the City Manager of CARLSBAD shall
Agreement. The General Manager of EWA and the City Manager of CARLSBAD may replace each designate a Project Manager to coordinate the activities set forth in this Facilities
or remove the Project Manager representing their respective agencies at their discretion. The
initial Project Manager for EWA shall be Mr. Paul Bushee. The initial Project Manager for
Carlsbad shall be Mr. William Plummer. In addition, the General Manager of EWA shall request
and seek input from the other Member Agencies’ managers or their representatives regarding
the location and design of the Flow Equalization Project and Recycled Water Project. The other
Member Agencies’ managers shall be asked by the EWA General Manager to make
recommendations to the General Manager and to the City of Carlsbad regarding, construction
sequencing, operational responsibilities and other issues that may arise during the
implementation of these projects which are not addressed by this contract
Article 2: EWA’S RESPONSIBILITIES
the Flow Equalization Facilities, other than any costs related to the design and construction of . .
“add-on facilities”, the purposes of which are solely to meet the needs of the Recycled Water
Project (the “Add-on Facilities”). For the purposes of this Agreement, Carlsbad’s Add-on
facilities shall include the equipment and appurtenances associated with its influent pump
station, influent piping to its water recycling facility, recycled water pump station and tank air gap
compartments as outlined in Exhibit A.
2.1 EWA shall be responsible for all costs for the design and construction of
2.2 EWA shall oversee the implementation of the Consultant Design Contract
(the “Design Contract”) for the completion of the design of the Flow Equalization Facilities.
(a) EWA shall approve the final design of the Flow Equalization
Facilities, subject to section 2.1 of this agreement.
(b) EWA shall require Consultant to itemize EWA and CARLSBAD
to CARLSBAD, through CARLSBADs Project Manager copies of the monthly
design costs as part of the Design Contract and in monthly invoices. EWA shall provide
statements from Consultant within five (5) business days of receipt by EWA.
CARLSBAD shall notify EWA of any errors concerning statements of amounts due within
ten (1 0) working days of receipt by CARLSBAD’s Project Manager.
2.3 EWA shall conduct the bidding process and shall contract for the
construction of the Flow Equalization Facilities (the “Construction Contract”) in accordance with
EWAs policies and applicable law. EWAs purchasing policies shall apply to implementation
and performance of the Construction Contract, and any other activity under this agreement.
EWA shall oversee the performance of the Construction Contract and be responsible for
accepting the Flow Equalization Facilities upon completion.
2.4 EWA shall bill CARLSBAD for actual costs related to the design and
construction of Add-on Facilities. EWA shall itemize and bill the actual costs to CARLSBAD
quarterly in accordance with Section 13.1.3 of the RBA or, if necessary, on a supplemental
basis in accordance with Section 17.2.3 of the RBA.
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Article 3: CARLSBAD’S RESPONSIBILITIES
3.1 As required by Section 4 of the RBA, Carlsbad and Vista shall approve
the plans and specifications for the Flow Equalization Facilities, as provided in Section 2.1 of
this agreement.
construction of the Add-on Facilities. CARLSBAD shall deposit with EWA ten percent (10%) of
the projected costs for Add-on Facilities, based upon the Montgomery Watson Harza
Preliminary Design Construction Cost Breakout, attached as Exhibit B. This shall be used by
EWA as part of the construction contract retention amount. This amount shall be deposited
within fifteen (1 5) business days of acceptance by EWA of a bid for the Construction Contract.
Following deposit of such funds, CARLSBAD shall be credited with any interest earned on the
deposit of such funds in the Local Agency Investment Fund by EWA, subject to any rights the
contractor may have to escrowed funds. Other costs billed by EWA shall be paid by
CARLSBAD in accordance with Section 13.1.3 of the RBA.
3.2 CARLSBAD shall pay for all costs for the design, engineering and
3.3 CARLSBAD waives all claims and releases EWA from all liability for
damages that occur due toConstruction Contract work stoppages or delays beyond the control
of EWA, including but not limited to Acts of God, acts of a public enemy, acts of a government
agency other than EWA, acts of CARLSBAD, acts of a contractor in the performance of a
contract with CARLSBAD, fires, floods, epidemics, quarantine restrictions, strikes, freight
embargoes, and weather, or delays of subcontractors due to such causes, or delays caused by
failure of the CARLSBAD or the owner of a utility to provide for removal or relocation of existing
utility facilities.
Article 4: COST ALLOCATION
4.1 The initial cost allocation between EWA and CARLSBAD for the design
and construction of the Flow Equalization Facilities shall,be as set forth by the Montgomery
Watson Harza Preliminary Design Construction Cost Breakout, attached as Exhibit B. All costs
related to facilities to meet the electrical requirements of the Flow Equalization Facilities shall be
the “add-on” facilities as set forth in Montgomery Watson Harza’s Preliminary Design
apportioned based upon estimated future electrical demands of the flow equalization facility and
Construction Cost Breakout, attached as Exhibit B.
Equalization Facilities (other than the Add-on Facilities) shall be allocated among the Member
Agencies in accordance with each agency’s percentage of ownership of Unit J, as set forth in
the RBA
4.2 MA’s share of costs for the design and construction of the Flow
Article 5: OWNERSHIP
5.1 EWA shall be the owner of the Flow Equalization Facilities, as described
and depicted in Exhibit A on behalf of the Member Agencies, excluding the Add-on Facilities.
The Member Agencies shall share beneficial ownership of the Flow Equalization Facilities
according to each Member Agency’s percentage ownership in Unit J, as set forth in the RBA.
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Page 4 Ret: Admin.02-6882
5.2 CARLSBAD shall be the owner of its Water Recycling Project, and of the
Add-on Facilities upon their completion and acceptance by EWA, as described in Exhibit A.
Article 6: ACCOUNTING AND AUDITS
6.1 EWA shall maintain financial records showing all expenses associated
with or related to the Flow Equalization Facilities Project. These records shall conform to
generally accepted accounting principles, and shall be examined by a certified public
accountant as a part of EWAs annual audit.
Artlcle 7: LIABILITY
7.1 CARLSBAD shall defend, indemnify, and hold RNA and the other
Member Agencies, their officers, agents and employees, harmless from any and all claims,
demands, liens, actions, liabilities, costs, and expenses, including attorneys’ fees, based upon
or arising out of or claimed to have arisen out of any act or omission by CARLSBAD, its officers,
agents or employees arising out of this Facilities Agreement, except for the negligent or willful
misconduct of EWA and the other Member Agencies, their officers, agents, or employees.
7.2. EWA and the other Member Agencies shall defend, indemnify, and hold
demands, liens, actions, liabilities, costs, and expenses, including attorneys’ fees, based upon harmless CARLSBAD and its. officers, agents and employees, harmless from any and all claims,
or arising out of or claimed to have arisen out of any act or omission by EWA, the other Member
Agencies, their officers, agents or employees related to this Facilities Agreement, except for #w
those claims and costs determined to be due to the negligent or willful misconduct of
CARLSBAD, its officers, agents, or employees.
Article 8: INSURANCE
8.1 CARLSBAD agrees to maintain general liability coverage for the Add-on
Facilities upon ownership.. In addition, CARLSBAD shall obtain such property insurance as
CARLSBAD may deem necessary to safeguard the Add-on Facilities. EWA and the other
Member Agencies shall be named as additional insureds on the general liability coverage
obtained by CARLSBAD. The aforesaid coverage shall in no manner limit the indemnity
provisions of this Facilities Agreement.
8.2 EWA shall maintain general liability coverage in connection with, or
related to, the work to be performed by EWA under this Facilities Agreement. The aforesaid
coverage shall in no manner limit the indemnity provisions of the Agreement. EWA shall take reasonable steps to require that the contractors for the Design Contract and the Construction
Contract procure and maintain such insurance as EWA may deem prudent and reasonably
available during the life of the contracts, including coverage for worker’s compensation, builder’s
all-risk, fire, professional liability and/or errors and omissions, and property damage, in
accordance with EWAs policies and procedures. CARLSBAD and the other Member Agencies
shall be named as additional insureds on the general liability coverage obtained by EWA.
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Page 5 Ref: Adrnin.02-6882
Article 9: NOTICES
9.1 For CARLSBAD, all notices, statements, demands, requests, consents,
approvals, authorizations, agreements, appointments or designations hereunder shall be given
in writing and addressed to: City Manager, City of Carlsbad, 1200 Carlsbad Village Drive,
Carlsbad, CA.
9.2 For EWA, all notices, statements, demands, requests, consents,
approvals, authorizations, agreements, appointments or designations hereunder shall be given
in writing and addressed to: General Manager, EWA, 6200 Avenida Encinas, Carlsbad, CA.
Article 10: DISPUTE RESOLUTION
10.1 EWA, the Member Agencies and Carlsbad agree that the maintenance of
a cooperative and mutually beneficial relationship between them is an important aspect of this
Agreement and therefore the means of resolution for any disputes, claims, or controversies that
described in Section 18 of the RBA. may arise during the course of this Agreement may be the same as those procedures so
10.2 Nothing in this procedure shall prohibit the parties seeking remedies
available to them at law.
Article 11: SEVERABILITY
conditions hereof shall be adjudged invalid, unenforceable, void or voidable for any reason
whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions,
enforceable to the fullest extent permitted by law.
promises, covenants and conditions hereof shall 'not be affected thereby and shall be valid and
Article 12: MODIFICATIONS
11 .I If any one or more of the terms, provisions, promises, covenants or
12.1 This Facilities Agreement shall not be altered except by written
amendment executed by both Parties.
Article 13: GOVERNING LAW
13.1 This Agreement is to be governed by and construed in accordance with
the laws of the State of California. The Parties agree and stipulate that the proper venue and
jurisdiction for resolution of any disputes between the parties arising out of this Agreement is
San Diego County, California.
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Page 7 Ref: Adrnin.02-6882
EXHIBIT A - SITE MAP
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Page 8 Ref: Admin.02-6882
EXHIBIT B
PRELIMINARY CONSTRUCTION COST BREAKOUT
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Section No. 5
Cost and Cost Allocation
Opinion of Probable Construction Cost and Table 5-1
Cost Allocation
tem
'roject Wide
Yard Piping
Repair of Existing Landscaping
Subtotal
:ombined Pump Station
Civil Work
Concrete
Metals
Equipment
Mechanical
Subtotal
iqualization Basin
Site Work
Concrete
Metals
Mechanical
Subtotal
inished Water Pump Station
Concrete
Architectural Work
Equipment
Mechanical
Electrical
Subtotal
1 EWACost
1 666,000
I 54,000 ! 720,000
49,000
176,000
9,000
599,000
537,000
1,370,000
792,000
3,000,000
35,000
141,000
3,968,000
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Electrical Work (Combined PS Only)
6,818,000 PROJECT SUBTOTAL
760,000
7,838,000 PROJECT TOTAL
1,020,000 Project Contingency @ 15%
Total Cost
666,000
54,000
720,000
71,000
116,000
4,000
140,000
109,000
440,000
120,000
291,000
13,000
740,000
646,000
1,810,000
50,000
6,000
22,000
78,000
I 792,000 I
3,040,000
41,000
163,000
4,036,000
238,000
2 17,000
238,000
380,000 380,000
105,000 105,000
191,000 191,000
2 17,000
1,131,000 1,131,000
620,000 1,380,000
2,269,000 9,077,000
340,000 1,360,000
2,609,000 10,437,000
MONTGOMERY WATSON Page 62