HomeMy WebLinkAbout2018-06-26; Municipal Water District; ; License Agreement with North County Transit District for the Recycled Water Phase III Pipeline Expansion Segment 5Fiscal Analysis
NCTD generally requires an annual fee for license agreements for the life of the pipeline or in
perpetuity. Through negotiation with CMWD staff, NCTD has agreed to a one-time license fee
of $13,777, if executed by June 30, 2018. NCTD will be increasing their fee schedule as of July 1,
2018 and may increase the fee associated with this License Agreement if not executed by June
30, 2018. A summary of costs and available funds are shown in the table below:
RECYCLED WATER PHASE Ill -PIPELINES, CIP NO. 5208
Current Appropriation -Recycled Water Phase Ill -Pipelines, CIP No. 5208 $21,197,529
Current Expenditures/Encumbrances -Recycled Water Phase Ill -Pipelines, $16,821,084
CIP No. 5208
TOTAL AVAILABLE RECYCLED WATER PHASE Ill -PIPELINES, CIP NO. 5208 $4,376,445
RECYLCED WATER PHASE Ill PIPELINE EXPANSION SEGMENT 5, PROJECT NO. 5208-B
NCTD License Agreement One-Time Fee $13,777
REMAINING BALANCE AFTER PROJECT NO. 5208-B $4,362,668
ADDITIONAL APPROPRIATION NEEDED $0
NCTD's current license fee is $1,900 per year and is escalated each year by the increase in the
CPI. If staff assumes the pipeline has an industry standard useful life of 50 years, NCTD executed
a license agreement for the estimated useful life of the pipeline, and ignores any CPI escalation
or net present value calculations, paying the one-time license fee saves ratepayers
approximately $81,000.
Next Steps
The License Agreement will be submitted to NCTD for final execution. Once a Public Works
Contract is awarded for the Project, the contractor will prepare a workplan and submit a right-
of-way permit to NCTD for review and approval to work within the NCTD right-of-way.
Construction is estimated to begin in Fall 2018 and finish by Spring 2020.
Environmental Evaluation (CEQA)
An environmental impact assessment was conducted for the Program, and a Mitigated
Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP) was
approved by the CMWD Board through Resolution No. 1455, on Nov. 27, 2012 (SCH No.
2012091004).
This Project is a sub-component of the Phase Ill Recycled Water Program and is subject to the
Mitigation Measures that are identified in the Program MMRP. The Project is within the scope
of the prior environmental documents and there are no substantial changes to the project or
the circumstances under which it is being undertaken and no new information of substantial
importance that would require major revisions to these environmental documents. Therefore,
no further environmental documentation is required per CEQA Guidelines Section 15162. All
applicable mitigation measures contained in the prior environmental documents have been
incorporated into the construction documents.
June 26, 2018 Item #17 Page 2 of 20
Public Notification
This item was noticed in accordance with the Ralph M. Brown Act and was available for public
viewing and review at least 72 hours prior to the scheduled meeting date.
Exhibits
1. CMWD Board Resolution.
2. Location Map.
June 26, 2018 Item #17 Page 3 of 20
RESOLUTION NO. 1598
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD
MUNICIPAL WATER DISTRICT BOARD (CMWD), AUTHORIZING EXECUTION
OF A LICENSE AGREEMENT WITH NORTH COUNTY TRANSIT DISTRICT FOR
THE RECYCLED WATER PHASE Ill PIPELINE EXPANSION SEGMENT 5, PROJECT
NO. 5208-B.
EXHIBIT 1
WHEREAS, the Carlsbad Municipal Water District {CMWD) Board of Directors of the City of
Carlsbad, California has determined it necessary, desirable, and in the public interest to enter into a
license Agreement with North County Transit District (NCTD) to cross the recycled water pipeline
below the NCTD right-of-way; and
WHEREAS, an environmental impact assessment was conducted for the Phase Ill Recycled
Water Program, and a Mitigated Negative Declaration and Mitigation Monitoring and Reporting
Program was approved by the Board through Resolution No. 1455, on Nov. 27, 2012; and
WHEREAS, Coastal Development Permit CDP 6-18-0345 was approved by the California Coastal
Commission on June 8, 2018.
NOW, THEREFORE, BE IT RESOLVED by the CMWD Board of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the president of the Board is hereby authorized and directed to execute the License
Agreement with NCTD for the Recycled Water Phase Ill Pipeline Expansion Segment 5, Project No. 5208-
B, attached hereto as Attachment A.
PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad Municipal Water
District of the City of Carlsbad on the 26th day of June, 2018, by the following vote, to wit:
AYES:
NOES:
ABSENT:
M. Hall, K. Blackburn, M. Schumacher, C. Schumacher, M. Packard
None.
None.
June 26, 2018 Item #17 Page 4 of 20
NORTH COUNTY
TRANSIT DISTRICT
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of the effective date of :-Ij J ne.. .;L '} , 2018 ("Effective Date") by and between the North County Transit District,
("NCTD"), a public agency existing under the laws of the State of California, pursuant to California Public
Utilities Code sections 125000, et seq. and Carlsbad Municipal Water District ("Licensee").
RECITALS
A. NCTD has policies regulating and governing the use of its property ("Property") and Right-of-Way
("ROW") (sometimes collectively, the "Property").
B. Licensee has applied for the issuance of a License in accordance with such policies and NCTD
has agreed to allow Licensee to use that portion of the ROW identified in Exhibit "A" ("License
Area"}, subject to the terms and conditions of this Agreement.
C. Licensee agrees to be bound by the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein,
the parties agree as follows:
1. License to Use. In consideration of the covenants and conditions set forth in this Agreement,
NCTD licenses and permits Licensee to install, operate and maintain a 30" steel casing containing
recycled water pipelines and appurtenances at approximate milepost (MP) 231.40 further identified
in Exhibit "B" ("Facility").
2. Authority Not Exclusive. This License is non-exclusive. The Licensee shall respect the rights
and property of NCTD and other authorized users of the ROW, easements, power poles, street
light poles, vaults, and conduits. Except as otherwise required by applicable law, disputes between
the Licensee and parties other than NCTD over the use, pursuant to this Agreement, of the
easements, power poles, street light poles, vaults, conduits and other rights-of-way shall be
submitted to NCTD for resolution. Licensee expressly agrees the Facility shall not interfere with
any use of the surface property.
3. Relocation. Licensee acknowledges that the License Area is used in connection with NCTD's
public purpose and other services to the public, and agrees that such uses by NCTD are superior
in all respects to all uses by Licensee. Licensee shall, at Licensee's sole expense and within thirty
(30) days after receiving written notice from NCTD, protect, temporarily relocate, or remove the
Facility if NCTD determines, in its sole and absolute discretion that the Facility is inconsistent or
interferes with NCTD's current or planned use of the License Area or ROW. In consideration of
NCTD's agreement to enter into this Agreement, Licensee hereby waives any and all rights it may
now have, or hereafter obtain, to any "relocation assistance benefits" pursuant to the Federal
Uniform Relocation Assistance Act (42 U.S.C. § 4601 et seq.), the California Relocation Assistance
law (Cal. Gov. Code § 7260 et seq.) or any other statute that replaces or provides rights similar to
such statutes, if NCTD requires Licensee to relocate the Facility or makes use of the ROW in such
a way as to 'displace' Licensee from the License Area. Licensee shall in the future execute any
further documentation of the release and waiver provided hereby as NCTD may reasonably require.
4. Compensation. Licensee shall pay to NCTD a one-time License Fee in the amount of Thirteen
Thousand Seven Hundred and Seventy-Seven Dollars ($13,777) ("License Fee") in advance,
commencing on the Effective Date.
231 .40-0618-PL-CMWD
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June 26, 2018 Item #17 Page 5 of 20
NORTH COUNTY
TRANSIT DISTRICT
NCTD: North County Transit District
810 Mission Avenue
Oceanside, CA 92054
Attention: Real Estate Department
LICENSEE: Carlsbad Municipal Water District
5950 El Camino Real
Carlsbad, CA 92008
Attention: M A:O::: KALL..,
Mailed notices shall be deemed given upon actual receipt at the address required, or forty-eight
(48) hours following deposit in the mail, postage prepaid, whichever first occurs. Either party may
by notice to the other specify a different address for notice purposes.
In the event the tracks become damaged, blocked or fouled in any way, Licensee shall immediately
notify NCTD Rail Operations Center at (760) 966-6700.
15. Acceptance of License Area. Licensee accepts the License Area in its present physical "AS-IS"
condition, and agrees to make no demands upon NCTD for any improvements or alterations. By
signing this Agreement, Licensee represents and warrants that Licensee has independently
inspected the License Area and the area immediately surrounding and made all investigations,
tests, and observations necessary to satisfy Licensee as to the condition of the License Area,
zoning and land use laws, regulations, and ordinances affecting the License Area, and all of the
conditions, restrictions, encumbrances, and other matters of record relating to the License Area.
Licensee agrees that Licensee is relying solely on Licensee's independent inspection and that
NCTD has made no warranty or representation with regard to the License Area. NCTD shall not
be responsible for any latent defect or change in condition in the License Area and Licensee's
obligations under this Agreement shall not be diminished on account of any defect in the License
Area, any change of condition, or any damages occurring on the License Area. In case of the
eviction of Licensee by anyone owning or claiming title to or any interest in the License Area, NCTD
shall not be liable to Licensee for any damage of any nature whatsoever or to refund any moneys
paid hereunder. Licensee hereby releases NCTD from all future claims, actions, or demands that
Licensee may have or may hereinafter have, known and unknown, in any way relating to the quality,
fitness, or condition of the License Area, and Licensee specifically waives all rights under California
Civil Code section 1542, which provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect
to exist in his or her favor at the time of executing the release, which if known by him or
her must have materially affected his or her settlement with the debtor."
Licensee Initial: 1J/4__
16. General Provisions.
16.1 Waiver. No delay or omission in the exercise of any right or remedy of NCTD on any default
by Licensee shall impair such a right or remedy or be construed as a waiver. The receipt
and acceptance by NCTD of delinquent License Fee shall not constitute a waiver of any other
default; it shall constitute only a waiver of timely payment for the particular License Fee
payment involved. NCTD's consent to or approval of any act by Licensee requiring NCTD's
consent or approval shall not be deemed to waive or render unnecessary NCTD's consent
to or approval of any subsequent act by Licensee. Any waiver by NCTD of any default must
be in writing and shall not be a waiver of any other default concerning the same or any other
provision of this Agreement.
16.2 Time of Essence. Time is of the essence for each and every provision of this Agreement.
231.40-0618-PL-CMWD
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June 26, 2018 Item #17 Page 12 of 20
NORTH COUNTY
TRANSIT DISTRICT
16.3 Successors. This Agreement shall be binding on and inure to the benefit of the parties and
their successors and assigns, except as may otherwise be provided in this Agreement.
16.4 Modification. This Agreement cannot be amended or modified except by a written
agreement signed by both parties.
16.5 Singular and Plural. When required by the context of this Ag reement, the singular shall
include the plural.
16.6 Joint and Several Obligations. If NCTD or Licensee is more than one person or entity, the
obligations imposed on that party shall be joint and several.
16.7 Severability. The unenforceability, invalidity, or illegality of any provision shall not render
-the other provisions unenforceable, invalid, or illegal.
16.8 Captions. The captions, headings and index appearing in this Agreement are inserted for
convenience only and in no way define, limit, construe, or describe the scope or intent of the
provisions of this Agreement.
16.9 Agreement Administration. This Agreement shall be administered on behalf of NCTD or a
designee (collectively, the "NCTD License Agreement Administrator"), and on behalf of
Licensee by {rn LIT I E.S t>-J¢:I I t-->E.Ei2:H:)(.1 H 6 i2-or by another person designated in
writing by Licensee (collective the "Licensee's License Agreement Ad ministrator").
16.10 NCTD Approval. Except where stated in this Agreement to the contrary, the phrases "NCTD
approva l", and "NCTD written approval" or similar phrases shall mean approval of NCTD's
License Agreement Administrator.
16.11 Licensee's Agreement Administration. Licensee confirms that Licensee's License
Agreement Administrator has been given full operational responsibility for compliance with
the terms of this Agreement.
16.12 Business Days. The term "business days" as used in this Agreement means any calendar
day other than a Saturday, Sunday, or official NCTD holiday.
16.13 Cumulative Remedies. If a default under this Agreement occurs, each party's remedies
shall be limited to those remedies set forth in this Agreement. The remedies under this
Agreement are cumulative and not exclusive of any other remedies under this Agreement to
which the non-defaulting party may be entitled.
16.14 Entire Agreement. This Agreement, together with all attached addenda , exhibits and riders
attached to this Agreement, constitutes the entire agreement between NCTD and Licensee
with respect to the subject matter of this Agreement, and all prior or contemporaneous
agreements, understandings and representations, oral or written, are superseded.
16.15 Governing Law and Venue. This Agreement shall be governed, construed and enforced in
accordance with the laws of the State of California. If any action is brought to interpret or
enforce any term of this Agreement, the action shall be brought in a State or Federal court
situated in the County of San Diego, State of California.
16.16 Vibration and Noise from Train Operation; Barricades. Licensee recognizes and
acknowledges that railroad tracks are located on or adjacent to the License Area and that
the operation of trains over the tracks does and will produce vibrations which may affect the
231.40-0618-PL-CMWD
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June 26, 2018 Item #17 Page 13 of 20
NORTH COUNTY
TRANSIT DISTRICT
Facility and Licensee's use of the License Area. With knowledge and understanding of these
facts, Licensee by execution of this Agreement, agrees that no legal action or complaint of
any kind whatsoever shall be instituted against NCTD by Licensee or on Licensee's behalf
as result of vibrations or as a result of the use of the railroad tracks in general.
16.17 Public Document. Licensee acknowledges that this Agreement and all documents relating
hereto are "public records" (as defined in Section 6252(e) of the California Government
Code), except for any documents relating to Tenant's financial condition or otherwise exempt
from such status pursuant to law, and that public records, with limited exemptions, are subject
to public disclosure pursuant to the provisions of California Government Code, commencing
with Section 6250
16.18 Interpretation. The language of this Agreement shall be construed simply according to its
plain meaning and shall not be construed for or against either party.
16.19 Authority. If Licensee is a corporation, trust, or general or limited partnership, Licensee,
and each individual executing this Agreement on behalf of such entity represent and warrant
that such individual is duly authorized to execute and deliver this Agreement on behalf of
said entity. If Licensee is a corporation, trust or partnership, Licensee shall, deliver to NCTD
evidence of such authority satisfactory to NCTD upon execution of this Agreement.
16.20 Counterparts. This instrument may be executed in any number of counterpart copies, each
of which co unterpart copy shall be deemed an original for all purposes.
IN WITNESS WHEREOF, the parties have signed below, effective as of the Effective Date, by their duly
authorized representatives.
NCTD:
North County Transit District
By: J
Name: Tracey Foster
Title: Chief Development Officer
Legality
231.40-0618-PL-CMWD
LICENSEE:
Carlsbad Municipal Water District
APPROVED AS TO FORM
Celia A. Brewer, City Attorney
By.~(;~~~~~ Asst/Deputy City Attorney
City of Carlsbad, CA
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June 26, 2018 Item #17 Page 14 of 20
NORTH COUNTY m.;:-<Q
TRANSIT DISTRICT -
EXHIBIT C -INSURANCE REQUIREMENTS
Without limiting License's indemnification of NCTD as provided herein, Licensee shall provide and
maintain at its own expense during the term of this License the below listed and described policies of
insurance covering its operations hereunder. Evidence of such insurance satisfactory to NCTD along with
required endorsements will be delivered to NCTD concurrent with execution of this License. Such
evidence shall include certificate of insurance (Accord Form 25-S or equivalent). All evidence of insurance
shall be issued by a properly authorized officer, agent or qualified representative of the insurer and shall
certify the names of the insured, any additional primary insureds, where appropriate, the type and amount
of the insurance coverage, the location and operations to which the insurance applies and the expiration
date.
1. Commercial and General Liability: Licensee shall provide and maintain the following commercial
and general liability insurance:
A. Coverage for commercial general liability insurance shall be at least as broad as the Insurance
Services Office Commercial General Liability (occurrence form CG 0001) coverage.
B. Licensee shall maintain limits of no less than two million dollars ($2,000,000) per occurrence and
four million dollars ($4,000,000) aggregate limits for bodily injury, personal injury and property
damage, including injury or damage. The general liability policies are to be endorsed to contain
the following provisions:
a. NCTD, its Board of Directors, officers, employees, agents and volunteers are to be covered
as additional insureds as respects liability arising out of the Right-of-Way licensed by
Licensee. The coverage shall contain no special limitations on the scope of protection
afforded to NCTD, its directors, officers, employees, agents and volunteers.
b. For any claims related to this License, Licensee's insurance shall be primary insurance as
respects to NCTD, its Board of Directors, officers, employees, agents and volunteers. Any
insurance, pooled coverage or self-insurance maintained by NCTD, its directors, officers,
employees, agents and volunteers shall not be contributory.
c. Licensee's insurance shall apply separately to each insured against whom claim is made
or suit is brought, except with respect to the limits of the insurer's liability.
d. The liability insurance shall indemnify the Licensee and its contractors against loss from
liability imposed by law upon, or assumed under contract by the Licensee or its contractors
for damages on account of such bodily injury (including death), property damage, personal
injury and completed operations and products liability.
e. Any failu re to comply with reporting or other provisions of the policies including breaches
of warranties shall not affect coverage provided to NCTD, its Board of Directors, officers,
employees, contractors, agents or volunteers.
f. The insurance shall be provided on a policy form written by underwriters through an agency
satisfactory to NCTD, which includes a cross-suit clause, and covers bodily injury and
property damage liability, owned and non-owned vehicles and equipment, blanket
contractual liability and completed operations liability.
June 26, 2018 Item #17 Page 17 of 20
NORTH COUNTY -...,:-4i
TRANSIT DISTRICT -
2. Railroad Protective Liability:
A. The Licensee shall obtain a railroad protective liability policy for work done within fifty (50) feet of
railroad tracks. The standard limits shall be three million dollars ($3,000,000) per occurrence limit
and six million dollars ($6,000,000) aggregate. NCTD reserves the right to increase these limits,
depending on the scope of work related to the License.
B. All work requiring railroad protective liability insurance shall name in the endorsement and
schedules as additional insureds the following entities, including their directors, officers, agents
and employees as their interests may appear:
a. North County Transit District (NCTD)
b. Burlington Northern Santa Fe Railway (BNSF)
c. National Railroad Passenger Corporation (AMTRAK)
3. Automobile Liability: Coverage for automobile liability insurance shall be at least as broad as
Insurance Services Office Automobile Liability Coverage (Form CA 0001 ). Limits shall be not less
than two million dollars ($2,000,000) for bodily injury and property damage each accident limit from
automobiles owned, leased, hired or borrowed by Licensee. The insurance shall indemnify against
loss from liability imposed by law for damages on account of bodily injury, property damage, and
personal injury. The automobile liability policy shall cover all owned, non-owned, leased and hired
automobiles.
4. Workers Compensation and Employer's Liability: Licensee and its contractors and assigns shall
cover or under the applicable statutory California State or Federal laws relating to workers'
compensation insurance, all of their employees working on or about the Right-of-Way, and Licensee
shall defend, protect and hold harmless NCTD, its Board of Directors, officers, employees, agents
and volunteers from and against all claims, suits, and actions arising from any failure of the Licensee
or any of Licensee's contractors or assigns to maintain such insurance.
A. Licensee shall provide employer's liability insurance in the amount of one million ($1,000,000) per
occurrence for bodily injury and disease.
B. Licensee shall provide NCTD with a certificate of Workers' Compensation and Employer's liability
insurance coverage.
C. Such insurance may include an insurer's waiver of subrogation in favor of NCTD and will be in a
form and with insurance companies reasonably satisfactory to NCTD.
5. OPTIONAL (As required by Risk Dept.) Property Insurance: Licensee shall maintain property
insurance covering the full replacement cost of Licensee's personal property, fixtures, equipment,
and improvements against the hazards offire, extended coverage/vandalism and malicious mischief,
flood and other property-related losses. Deductible limits should be no more than five thousand
dollars ($5,000). However, NCTD reserves the right to modify deductible limits.
6. All policies required shall be issued by insurance companies who are rated not less than "A VII" by
the latest A. M. Best Company Key Rating Guide, who are authorized to transact business in
California.
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June 26, 2018 Item #17 Page 18 of 20
NORTH COUNTY -..;:_-<IQ
TRANSIT DISTRICT -
7. NCTD makes no representation that the limits or forms of coverage of insurance specified in this
section are adequate to cover Licensee's property or obligations under this License. NCTD reserves
the right to raise or lower limit requirements at the time of request, based upon the scope of work.
8. Prior to execution of this License, Licensee shall file with NCTD a certificate of insurance signed by
the insurer's representative. Such evidence shall also include confirmation that coverage includes or
has been modified to include required provisions as set forth herein. Licensee shall upon the
reasonable demand of NCTD, deliver to NCTD such policy or policies of insurance. Each insurance
policy required by this clause shall state or be endorsed to state that coverage shall not be amended
or cancelled, except after thirty (30) days prior notice by U.S. mail has been given to NCTD.
9. If any insurance coverage is canceled or reduced, Licensee shall, within ten (10) days after receipt
of written notice of such cancellation or reduction of coverage, file with NCTD a certificate showing
that the required insurance has been reinstated or provided through another insurance company or
companies, and said policy shall be submitted for approval as herein provided. At least fifteen (15)
days prior to the expiration of any such policy, a certificate, showing that the insurance coverage has
been renewed or extended, shall be filed with NCTD.
10. Every contractor or subcontractor of Licensee entering upon, using or performing any work upon the
Right-of-Way by or on behalf of Licensee shall provide evidence of insurance required herein prior to
entering upon the Right-of-Way.
11. NCTD reserves the right to increase the limits for the insurance required herein to amounts
recommended by NCTD's insurance risk manager or insurance representative.
12. Notwithstanding any other provision of this License, Licensee may self-insure for any risk set forth in
this section in the manner and to the extent that Licensee self-insures for similar risks with respect to
its operations, equipment and property. The manner in which such self-insured is provided and the
extent of such self-insurance shall be set forth in a letter of self-insurance, delivered to NCTD and
signed by an authorized representative of Licensee, which fully describes the self-insurance program
and how the program covers the risks set forth herein. Insurance provided by a joint powers authority
or insurance pool shall be considered self-insurance for the purpose of this paragraph. If, at any time
during the term of this License, Licensee elects not to self-insure, Licensee shall comply with all
applicable provisions herein to the extent Licensee does not so self-insure. NCTD reserves the right
to request Licensee financial statements for review prior to accepting self-insurance limits.
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June 26, 2018 Item #17 Page 19 of 20