HomeMy WebLinkAbout2020-11-03; Municipal Water District; ; Execution of a memorandum of understanding with Encina Wastewater Authority for the Flow Equalization Basin Remediation Project Meeting Date: Nov. 3, 2020
To: President and Board Members
From: Scott Chadwick, Executive Manager
Staff Contact: Vicki Quiram, General Manager
vicki.quiram@carlsbadca.gov, 760-438-2722
Dave Padilla, Interim District Engineer
dave.padilla@carlsbadca.gov, 760-603-7356
Subject: Execution of a memorandum of understanding with Encina Wastewater
Authority for the Flow Equalization Basin Remediation Project
Recommended Action
Adopt a resolution authorizing execution of a memorandum of understanding with the Encina
Wastewater Authority for remediation of soil settlement adjacent to the flow equalization
basins east of the Carlsbad Water Recycling Facility.
Executive Summary
This project deals with the flow equalization basins, located near the Encina Water Pollution
Control Facility and the Carlsbad Water Recycling Facility, that provide mutual benefit to the
Encina Wastewater Authority and the Carlsbad Municipal Water District, or CMWD. The basins
are owned by the authority, which uses them to store secondary effluent from the wastewater
treatment process, preventing plant overflow during extremely high flows. CMWD uses the
basins to store recycled water produced at the Carlsbad Water Recycling Facility, which
increases the availability of recycled water supply available to the district’s customers. Based on
the important shared benefit of the facility to both agencies, CMWD and the wastewater
authority wish to share equally in the cost of the Flow Equalization Basin Remediation Project.
Engineering plans and specifications to repair and safeguard the basins have been completed
by the wastewater authority. Execution of the memorandum of understanding will allow Encina
Wastewater Authority to solicit public bids and subsequently award a construction contract to
the lowest responsive and responsible bidder. Sufficient funding is available in CMWD’s Capital
Improvement Program budget to fund CMWD’s share of the project costs.
Discussion
The City of Carlsbad, the City of Vista, the Leucadia County Water District, the Vallecitos Water
District, the City of Encinitas and the Buena Sanitation District, known collectively as the
member agencies, are signatories to a joint exercise of powers agreement known as the
Revised Basic Agreement for Ownership, Operation and Maintenance of the Encina Wastewater
Authority Joint Sewerage System. On June 28, 1995, the member agencies executed an
agreement authorizing the wastewater authority to acquire land on behalf of the member
agencies under which the wastewater authority purchased about 37 acres adjacent to the
Nov. 3, 2020 Item #3 Page 1 of 23
Encina Water Pollution Control Facility southerly boundary. In 2001, the member agencies
entered into an agreement under which each member agency relinquished its equitable
interest and legal title in this land to the wastewater authority, and the City of Carlsbad, using
CMWD funds transferred to the city, purchased a portion of the land from the wastewater
authority to build and operate a recycled water treatment project.
On March 27, 2002, the City of Carlsbad and the wastewater authority entered into an
agreement (Exhibit 2) for design and construction of the Carlsbad Water Recycling Facility and
the flow equalization project joint use facilities, which provided for equitable sharing of costs
and allocation of responsibilities. The flow equalization basins, owned by the Encina
Wastewater Authority, were constructed in 2004 by the authority and are located directly east
of the Carlsbad Water Recycling Facility and south of the Encina Water Pollution Control
Facility. The basins are situated higher than the water pollution control facility and are
separated by a 46-foot high sloped embankment.
On May 1, 2005, CMWD entered into a memorandum of understanding with the Encina
Wastewater Authority for operation and maintenance of the Carlsbad Water Recycling Facility.
The two rectangular basins are separated by a reinforced concrete wall, and each basin is
approximately 23 feet deep, 123 feet wide and 188 feet long. The west basin is normally used
to store recycled water produced by the Carlsbad facility and the east basin is used for
secondary effluent storage and equalization for the Encina Water Pollution Control Facility’s
wastewater treatment process. Each basin is designed to hold four million gallons of secondary
effluent or recycled water and provide mutual benefit to CMWD and the Encina Wastewater
Authority.
By 2008, the northern slope area and backfill adjacent to the basins had settled 1.5 inches. In
2016, CMWD commenced construction of the Carlsbad Water Recycling Facility Expansion
Project, which included remedial work to reduce the potential for settlement-related distress to
the new improvements. During construction, CMWD and the wastewater authority each
commissioned geotechnical evaluations of pavement distress and voids occurring in the backfill
adjacent to the basins, which revealed the presence of loosely compacted fill soils with high
moisture contents to depths extending to 20 feet. In 2017, a construction change order was
issued to include work partially remedying near-surface settlement distress adjacent to the
basins until permanent repairs could be implemented.
The slope area and backfill adjacent to the basins continue to experience settlement and
require remediation to repair the distress and safeguard the integrity of the basins, subsurface
piping and the wastewater authority’s adjacent facilities at the bottom of the slope. Based on
the shared benefit of the flow equalization facilities, CMWD and the Encina Wastewater
Authority would like to equally share in the costs of this remediation work.
On Feb. 27, 2020, the Encina Wastewater Authority engaged Carollo Engineers, Inc. to design
and develop plans, specifications and oversee bidding and construction activities necessary to
remediate the settling soils around the flow equalization basins. Engineering plans and
specifications to conduct the remedial work have been completed. Execution of the
memorandum of understanding will allow the wastewater authority to release the project for
public bidding and subsequently award a construction contract to the lowest responsive and
responsible bidder.
Nov. 3, 2020 Item #3 Page 2 of 23
CMWD has a general CIP project (CIP Project No. 5203) to fund Encina Wastewater Authority
projects related to the Carlsbad Water Recycling Facility. The Flow Equalization Basin
Remediation Project is one of the projects that was budgeted in the CIP. The project is also
specifically included in the wastewater authority’s capital projects budget.
Fiscal Analysis
The project is budgeted in the fiscal year 2020-21 CIP budget. Settlement remediation efforts
and studies conducted prior to 2020 total $238,000. The engineer’s cost estimate for
construction, with 20% contingency, is $2,640,000. Fees for Encina Wastewater Authority
management, design, construction management, inspection and materials testing services are
estimated at $500,000, and future CMWD staff charges through the project’s completion are
estimated at $50,000. The total project cost is estimated at $3,428,000.
Based on these estimates, CMWD’s 50% share of costs is $1,714,000. Available funds are
sufficient to meet CMWD’s share of the project costs and provide a basis to authorize execution
of the memorandum of understanding. A summary of the estimated costs and available funds is
shown in the table below:
CARLSBAD WATER RECYCLING FACILITY (ENCINA CAPITAL PROJECTS)
CIP PROJECT NO. 5203
Total appropriation to date $2,231,710
Total expenditures and encumbrances to date $121,500
CURRENT PROJECT ACCOUNT BALANCE – CIP PROJECT NO. 5203 $2,110,210
Remediation costs (prior to 2020) $238,000
Construction contract (engineer's estimate) $2,200,000
Construction contingency (estimated at 20%) $440,000
Encina Wastewater Authority management, construction management,
inspection and material testing services (estimated) $500,000
CMWD staff time $50,000
TOTAL ESTIMATED PROJECT COST – CIP PROJECT NO. 5203 $3,428,000
CMWD 50% SHARE $1,714,000
REMAINING BALANCE – CIP PROJECT NO. 5203 $396,210
ADDITIONAL APPROPRIATION NEEDED $0
Nov. 3, 2020 Item #3 Page 3 of 23
Next Steps
Encina Wastewater Authority staff will release the project for public bidding and evaluate the
bids in December 2020. Upon notification from the wastewater authority of the bid results,
CMWD staff will confirm that the apparent low bid is within the budget estimate. The Encina
Wastewater Authority Board will then authorize award of the construction contract, estimated
in January 2021, and the work will be managed by wastewater authority staff. CMWD staff will
monitor progress and authorize progress payments under the terms of the memorandum of
understanding.
If bids exceed CMWD’s current budget, staff will return to the CMWD board for authorization of
additional funding before the wastewater authority board awards the construction contract.
Environmental Evaluation (CEQA)
In keeping with Public Resources Code Section 21065, this action does not constitute a
“project” within the meaning of the California Environmental Quality Act in that it has no
potential to cause either a direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment, and therefore does not require
environmental review.
Public Notification
Public notice of this item was noticed in accordance with the Ralph M. Brown Act and it was
available for public viewing and review at least 72 hours prior to the scheduled meeting date.
Exhibits
1. Resolution
2. Agreement between the Encina Wastewater Authority and the City of Carlsbad for the
design and construction of flow equalization project joint use facilities
Nov. 3, 2020 Item #3 Page 4 of 23
RESOLUTION NO. 1646
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD
MUNICIPAL WATER DISTRICT OF THE CITY OF CARLSBAD, CALIFORNIA,
AUTHORIZING EXECUTION OF A MEMORANDUM OF UNDERSTANDING
WITH ENCINA WASTEWATER AUTHORITY FOR REMEDIATION OF SOIL
SETTLEMENT ADJACENT TO THE FLOW EQUALIZATION BASINS EAST OF THE
CARLSBAD WATER RECYCLING FACILITY
WHEREAS, the Carlsbad Municipal Water District (CMWD) Board of Directors of the City of
Carlsbad, California, has determined it necessary and in the public interest to execute a Memorandum
of Understanding (MOU) between CMWD and Encina Wastewater Authority (EWA) for soil settlement
remediation adjacent to the flow equalization basins; and
WHEREAS, the City of Carlsbad, the City of Vista, the Leucadia County Water District, the
Vallecitos Water District, the City of Encinitas, and the Buena Sanitation District (collectively 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; and
WHEREAS, the Member Agencies executed an agreement, dated June 28, 1995, authorizing
EWA to acquire land on behalf of the Member Agencies (the "1995 Agreement") under which EWA
purchased approximately thirty-seven (37) acres of land adjacent to the Encina Water Pollution Control
Facility's ("EWPCF") southerly boundary (the "South Parcel"); and
WHEREAS, 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 the City of Carlsbad, using CMWD transferred funds, purchased from EWA a
portion of the South Parcel (the "Recycled Water Project Site" or "CWRF") to construct and operate a
recycled water treatment project; and
WHEREAS, in 2002, EWA and the City of Carlsbad executed the Flow Equalization Project Joint
Use Facilities Agreement (the "Facilities Agreement") whereby the Parties cooperated in the design
and construction of the flow equalization basins; and
WHEREAS, since construction, CMWD regularly uses the flow equalization facilities, and the
"Add-On" facilities connecting the CWRF to the east flow equalization basin consistent with the
Facilities Agreement and the RBA; and
WHEREAS, CMWD entered into a MOU with EWA for operation and maintenance of the CWRF,
owned by CMWD; and Nov. 3, 2020 Item #3 Page 5 of 23
WHEREAS, EWA's use of the flow equalization facilities is to divert wastewater into the flow
equalization facilities during high flows to prevent spills and CMWD's use of the flow equalization
facilities is at different times and provides for customers' increased irrigation demands; and
WHEREAS, in response to the continuing soil settlement adjacent to the flow equalization
facilities, the Parties agree that certain remediation work must be performed; and
WHEREAS, given EWA's and the City of Carlsbad's joint use of the flow equalization facilities and
based on the principles of joint participation described in the RBA, each Party (EWA and CMWD) desires
to pay 50% of consultant and contractor costs associated with the remediation work as described in
this MOU; and
WHEREAS, on Feb. 27, 2020, EWA engaged Carollo Engineers, Inc. to design and develop plans,
specifications and oversee bidding and construction activities necessary to remediate the settling soils
around the east flow equalization basin; and
WHEREAS, plans and specifications have since been completed; and
WHEREAS, EWA and CMWD agree that remediating the settling soils around the flow
equalization basins is essential for the ongoing operations of the CWRF, and therefore enter into this
MOU in furtherance of the Flow Equalization Basin Remediation; and
WHEREAS, execution of the MOU will allow EWA to release the project for public bidding and
subsequently award a construction contract to the lowest responsive and responsible bidder; and
WHEREAS, sufficient funding is available for the project in CMWD's Capital Improvement
Program Budget.
NOW, THEREFORE, BE IT RESOLVED by the CWMD Board of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the President of the CMWD Board of Directors of the City of Carlsbad is hereby
authorized and directed to execute the MOU between CMWD and EWA, attached hereto as
Attachment A.
3. That CMWD staff is authorized and directed to monitor construction progress and
authorize progress payments, as described under the terms of the MOU, attached hereto as
Attachment A.
Nov. 3, 2020 Item #3 Page 6 of 23
PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad Municipal Water
District Board of Directors of the City of Carlsbad on the 3rd day of November, 2020, by the following
vote, to wit:
AYES: Hall, Blackburn, Bhat-Patel, Schumacher.
NAYS: None.
ABSENT: None.
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MATT HALL, President
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BARBARA ENGLESON, Secretary
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ATTACHMENT A
MEMORANDUM OF UNDERSTANDING FOR
FLOW EQUALIZATION BASIN REMEDIATION
This Memorandum of Understanding for Flow Equalization Basin Remediation (MOU) is
entered into as of , 2020 by and between the Carlsbad Municipal Water
District, a Public Agency organized under the Municipal Water District Law of 1911, and a
Subsidiary District of the City of Carlsbad, hereinafter referred to as "CMWD" and the Encina
Wastewater Authority, a joint powers authority organized pursuant to Government Code §§
6500 et seq., hereinafter referred to as "EWA". Each shall be referred to in this MOU as a
"Party" and collectively as the "Parties".
RECITALS
A. The City of Carlsbad (the "City"), the City of Vista, the Leucadia County Water
District, the Vallecitos Water District, the City of Encinitas, and the Buena Sanitation District
(collectively 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.
B. The Member Agencies executed an agreement, dated June 28, 1995, authorizing
EWA to acquire land on behalf of the Member Agencies (the "1995 Agreement") under which
EWA purchased approximately thirty-seven (37) acres of land adjacent to the Encina Water
Pollution Control Facility's southerly boundary (the "South Parcel").
C. 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 the City, using transferred CMWD funds, purchased from EWA a
portion of the South Parcel (the "Carlsbad Water Recycling Facility" or "CWRF") to construct
and operate a recycled water treatment project.
D. In 2002, EWA and the City executed the Facilities Agreement whereby the Parties
cooperated in the design and construction of the CWRF. Since construction, CMWD regularly
uses the Flow Equalization Facilities, and the "Add-On" facilities connecting the CWRF to the East
Flow Equalization Basin consistent with the Facilities Agreement and the RBA.
E. In 2005, EWA and CMWD executed a Memorandum of Understanding for the
operation and maintenance of the CWRF. To the extent the stabilization and remediation work
described in this MOU allows for the continued operation of CWRF, CMWD desires to enter into
this MOU with EWA.
F. When EWA uses the Flow Equalization Facilities it diverts water into the Flow
Equalization Facilities during high flows to prevent spills. Conversely, CMWD uses the Flow
Equalization Facilities to address increased customer irrigation demands.
G. In response to the recent subsidence or settling of soils around the Flow
Equalization Basis, the Parties agree that certain remediation work, described below, must be
performed.
H. Based on the principals of joint participation described in the RBA, each Party
agrees to pay 50% of consultant and contractor costs associated with the remediation work as
described in this MOU.
Nov. 3, 2020 Item #3 Page 8 of 23
On February 27, 2020, EWA engaged Carollo Engineers, Inc. (Consultant) to
design and develop plans, specifications and oversee bidding and construction activities
necessary to remediate the settling soils around the Flow Equalization Basins.
J. The Parties agree that remediating the settling soils around the Flow Equalization
Basins (as shown in Exhibit A) is essential for the ongoing operations of the CWRF, and therefore
enter into this MOU in furtherance of the Flow Equalization Basin Remediation.
NOW, THEREFORE, in consideration of the mutual promises, obligations and covenants
set forth herein, CMWD and EWA agree to the following terms:
Section I. EWA'S RESPONSIBILITIES
1.1 EWA shall be responsible for oversight and management of the above-referenced
agreement with Consultant for design, planning, bidding and oversight of the remediation work
covering the subsidence of soil around the Flow Equalization Basins as shown in Exhibit A. The
remediation work includes paving, grading, curb and gutter repair, slope stabilization, and
installation of a flap gate on the recycled water pipeline feeding the East Flow Equalization Basin.
(i) EWA shall approve the final design of the remediation plans and
specifications, subject to section 2.1 of this MOU, and shall provide reasonable notice to CMWD
before approving the final design.
(ii) EWA shall provide to CMWD, through CMWD's Project Manager, copies of
the monthly statements from Consultant within 10 business days of receipt by EWA. CMWD shall
notify EWA of any errors concerning statements of amounts due within ten (10) business days of
receipt by CMWD's Project Manager.
1.2 EWA shall conduct the bidding process and shall contract for the remediation work
described in Section 1.1 above (the "Construction Contract") in accordance with EWA's policies
and applicable law. EWA's purchasing policies shall apply to implementation and performance
of the Construction Contract, and any other activity under this MOU. EWA shall oversee the
performance of the Construction Contract and be responsible for accepting the remediation work
upon completion.
1.3 EWA shall itemize and bill, on a quarterly basis, 50% of actual costs related to the
Consultant's contract and the Construction Contract in accordance with the RBA; EWA shall be
responsible for 50% of such costs.
Section II. CMWD'S RESPONSIBILITIES
2.1 CMWD shall be given a reasonable opportunity to review and comment upon the
plans and specifications provided by Consultant.
2.2 CMWD shall pay 50% of all costs related to the Consultants' Contract and the
Construction Contract.
2.3 CMWD waives all claims and releases EWA from all liability for damages that
occur due to Construction 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 CMWD, acts of a contractor in the performance of a contract with CMWD,
Page 2 of 6
DOCS 4220761.3 Nov. 3, 2020 Item #3 Page 9 of 23
fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and weather, or delays
of subcontractors due to such causes, or delays caused by failure of CMWD, or the owner of a
utility, to provide for removal or relocation of existing utility facilities.
Section III. COST ALLOCATION
3.1 It is the intent of the Parties that each Party bear one-half of all costs incurred for
completion of the Consultant's contract and the Construction Contract described in this MOU.
3.2 EWA's share of costs shall be allocated among the Member Agencies in
accordance with each agency's percentage of ownership of Unit I, as set forth in the RBA.
Section IV. OWNERSHIP
4.1 EWA is the owner of the Flow Equalization Facilities, as described in Exhibit A on
behalf of the Member Agencies, excluding the Add-On Facilities. The Member Agencies share
beneficial ownership of the Flow Equalization Facilities according to each Member Agency's
percentage ownership in Unit I, as set forth in the RBA.
4.2 CMWD is the owner of its Water Recycling Project and the Add-On Facilities, as
described in Exhibit A.
Section V. ACCOUNTING AND AUDITS
5.1 EWA shall maintain financial records showing all expenses associated with or
related to the Flow Equalization Facilities Settlement Project. These records shall conform to
generally accepted accounting principles and shall be examined by a certified public accountant
as a part of EWA's annual audit.
Section VI. LIABILITY
6.1 CMWD shall indemnify, defend and hold EWA and the other Member Agencies,
their officers, agents and employees, harmless from any and all claims, demands, liens, actions,
liabilities, costs, and expenses, including reasonable attorneys' fees, based upon or arising out of
or claimed to have arisen out of any act or omission by CMWD, its officers, agents or employees
arising out of this MOU, except for those claims and costs determined to be due to the negligent
or willful misconduct of EWA and the other Member Agencies, their officers, agents, or
employees.
6.2 EWA and the other Member Agencies shall indemnify, defend and hold harmless
CMWD and its officers, agents and employees, from any and all claims, demands, liens, actions,
liabilities, costs, and expenses, including reasonable attorneys' fees, based upon 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 arising out of this MOU, except for those claims and costs
determined to be due to the negligent or willful misconduct of CMWD, its officers, agents, or
employees.
Section VII. INSURANCE
7.1 CMWD shall maintain general liability coverage in connection with, or related to,
the work to be performed by CMWD under this MOU and the Transfer Agreement. The aforesaid
Page 3 of 6
DOCS 4220761.3 Nov. 3, 2020 Item #3 Page 10 of 23
coverage shall in no manner limit CMWD's indemnity provisions of the MOU. In addition, CMWD
shall obtain such property insurance as CMWD may deem necessary to safeguard the CWRF.
EWA and the other Member Agencies shall be named as additional insureds on the general
liability coverage obtained by CMWD. The aforesaid coverage shall in no manner limit the
indemnity provisions of this MOU.
7.2 EWA shall maintain general liability coverage in connection with, or related to, the
work to be performed by EWA under this MOU. The aforesaid coverage shall in no manner limit
EWA's indemnity provisions of the MOU. EWA shall take reasonable steps to require that the
Consultant, and Contractors engaged through Consultant, 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 EWA's policies and procedures.
Section VIII. NOTICES
8.1 For CMWD, all notices, statements, demands, requests, consents, approvals,
authorizations, agreements, appointments or designations hereunder shall be given in writing and
addressed to:
Executive Manager
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Assistant Executive Manager
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
General Manager
Carlsbad Municipal Water District
5950 El Camino Real
Carlsbad, CA 92008-8802
With a copy to:
City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Deputy City Manager
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
8.2 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, ENCINA WASTEWATER AUTHORITY, 6200 Avenida Encinas,
Carlsbad, CA 92011.
Page 4 of 6
DOCS 4220761.3 Nov. 3, 2020 Item #3 Page 11 of 23
Section IX. DISPUTE RESOLUTION
9.1 Maintenance of a cooperative and mutually beneficial relationship between the
Parties is an important aspect of this MOU. Therefore, the means of resolution for any disputes,
claims, or controversies that may arise during the course of this MOU shall follow those
procedures described in Section 18 of the RBA.
9.2 Nothing in this MOU prohibits the Parties from seeking remedies available to them
at law.
Section X. SEVERABILITY
10.1 If any one or more of the terms, provisions, promises, covenants or 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, promises,
covenants and conditions hereof shall not be affected thereby and shall be valid and enforceable
to the fullest extent permitted by law.
Section XI. MODIFICATIONS
11.1 This MOU shall not be altered except by written amendment executed by both
Parties.
Section XII. GOVERNING LAW
12.1 This MOU 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 MOU is San Diego County,
California.
IN WITNESS WHEREOF, the Parties agree to the terms set forth in this MOU and hereby
execute this MOU as of the day and year first above written.
CARLSBAD MUNICIPAL WATER DISTRICT By:
Its:
ENCINA WASTEWATER AUTHORITY By:
Its:
APPROVED AS TO FORM By:
Counsel for
Carlsbad Municipal Water District
APPROVED AS TO FORM By:
Counsel for
Encina Wastewater Authority
Page 5 of 6
DOCS 4220761.3 Nov. 3, 2020 Item #3 Page 12 of 23
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Page 6 of 6
DOCS 4220761.3 Nov. 3, 2020 Item #3 Page 13 of 23
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:
1.
2.
3.
4.
5.
6.
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:
EXHIBIT 2
Nov. 3, 2020 Item #3 Page 14 of 23
Page 2 Ref: Admin.02-6882
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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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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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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EXHIBIT A - SITE MAP
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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
-
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
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