•
❑ CITY COUNCIL
AGENDA ❑ COMMUNITY DEVELOPMENT COMMISSION
REPORT ❑ SUCCESSOR AGENCY
® BUENA SANITATION DISTRICT
❑ JOINT POWERS FINANCING AUTHORITY
Department: Engineering Item No: C5
Ken Knatz, Sewer Engineering Manager
Prepared by: Erin Adams, Management Analyst Meeting Date: October 25, 2022 Greg Mayer, City Engineer
Approved by: Amanda Lee, Assistant City Manager Agenda Location: Consent Calendar SUBJECT: CIP NO. 8346: VALLECITOS FAILSAFE OUTFALL REHABILITATION —APPROVAL OF 50 PERCENT COST-SHARE
RECOMMENDATION: Adopt Buena Sanitation District Resolution No. 2022- , approving a 50 percent cost-share with the Vallecitos Water District for the Failsafe Outfall Rehabilitation (CIP No. 8346).
CORRELATION TO CITY COUNCIL GOALS: Routine operational item not directly corresponding to a specific City Council goal.
PRIOR ACTION: On October 30, 1981, the Buena Sanitation District (BSD) entered into a Failsafe Outfall Agreement with the Vallecitos Water District (VWD) and the City of Carlsbad that establishes capacity share and maintenance obligations in three separate reaches of the pipeline. Ownership of capacity in the Buena Reach is equally shared between Vallecitos Water District and Buena Sanitation District at 50 percent between each agency.
STATEMENT ON THE SUBJECT: The Vallecitos Failsafe Outfall Rehabilitation, Capital Improvement Project (CIP) No. 8346, includes the rehabilitation of 9228 linear feet of 16-inch ductile iron pipe that has met its useful life within the limits of the Buena Reach. BSD owns 50 percent capacity in this segment and is responsible for operation and maintenance costs, and for repair and replacement projects (with prior Board approval necessary for such projects exceeding $10,000), in proportion to its capacity ownership per the 1981 Failsafe Pipeline Agreement.
Based on the terms of the Agreement, BSD is responsible for 50 percent of the costs associated with the rehabilitation of the pipeline upon Board approval for the project. The project design has been completed and VWD has requested BSD's approval of the project prior to moving ahead with public bidding and awarding the project as the lead agency. By approving the needed improvements, BSD will best mitigate any potential environmental regulatory liability associated with pipeline operations, and any additional costs that could arise in an emergency failure.
FISCAL IMPACT: The Failsafe Outfall Rehabilitation is currently estimated to cost a total of$4 million with BSD cost-share equal to $2 million. Funding in the amount of$1,750,000 was budgeted and is available in the Fiscal Years 2022/23 and 2023/24 Capital Improvement Program Budget in CIP 8346 the Vallecitos Failsafe Outfall Rehabilitation Project Source Appropriation Account (No. 5066515.578999.8346). The project was originally budgeted from VWD 90 percent design estimates received in February 2022 and has been adjusted by VWD's consultant to account for 100 percent design updates and inflation. The need for ACTION: Approved above recommendation, adopted Buena Sanitation District Resolution No. 2022-20.
Vote: 5-0
Clerk/Se-retary
10/25/2022 C5 Page 1 of 28
MEETING DATE: October 25, 2022 PAGE 2
SUBJECT: CIP NO. 8346: VALLECITOS FAILSAFE OUTFALL REHABILITATION —APPROVAL OF
COST-SHARE
a supplemental funding appropriation will be evaluated after opening of public bids. If required, staff plans to request a supplemental appropriation as part of the quarterly budget adjustment process based on final estimated project costs are tabulated after the bid opening.
EXHIBITS:
1. Buena Sanitation District Resolution No. 2022- , approving a 50 percent cost-share with the Vallecitos Water District for the Failsafe Outfall Rehabilitation (CIP No. 8346)
2. Failsafe Outfall Agreement
3. Location Map
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RESOLUTION NO. 2022-
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE
BUENA SANITATION DISTRICT, APPROVING A 50 PERCENT COST-SHARE
WITH VALLECITOS WATER DISTRICT FOR THE FAILSAFE OUTFALL REHABILITATION PROJECT (CIP No. 8346)
The Board of Directors of the Buena Sanitation District does resolve as follows:
1. Findings. The Board of Directors hereby finds and declares the following:
A. The Buena Sanitation District entered into a Failsafe Outfall Agreement with the Vallecitos Water District and the City of Carlsbad on October 30, 1981 that establishes capacity share and maintenance obligations of the pipeline for each of the agencies.
B. The Buena Reach of the Failsafe Outfall has reached the end of its useful life and is in need of rehabilitation. The District is responsible for 50 percent of the costs to rehabilitate the Buena Reach segment per the 1981 Failsafe Outfall Agreement, subject to the requirement that the Board provide prior approval for the rehabilitation project.
2. Action.
A. The 50 percent cost-share between the Buena Sanitation District and the Vallecitos Water District for the Failsafe Outfall Rehabilitation (CIP No. 8346) is approved, and the Finance Director is authorized to issue project reimbursements per the terms of the 1981 Failsafe Agreement.
3. Adoption. PASSED AND ADOPTED at a meeting of the Board of Directors of the Buena Sanitation District held on October 25, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
JUDY RITTER, CHAIRPERSON
APPROVED AS TO FORM: ATTEST:
WALTER CHUNG, DISTRICT COUNSEL KATHY VALDEZ, CLERK OF THE BOARD By: By:
APPROVED
Walter C.Chung
20221012153951
000563935 EXHIBIT 1
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AGREEMENT
SAN MARCOS COUNTY WATER DISTRICT, BUENA SANITATION
DISTRICT AND THE CITY OF CARLSBAD AGREEMENT FOR THE
OPERATION AND MAINTENANCE OF AN OCEAN FAILSAFE
TREATED EFFLUENT OUTFALL PIPELINE
THIS AGREEMENT is made and entered into by and between the SAN MARCOS COUNTY WATER DISTRICT (SAN MARCOS), the BUENA SANITATION DISTRICT (BUENA) , and the CITY OF CARLSBAD (CARLSBAD), collectively referred to as PARTIES.
RECITALS
THIS AGREEMENT between the PARTIES is entered into in view of the following facts and purposes.
1 . SAN MARCOS is a public entity organized and functioning pur- suant to the COUNTY WATER DISTRICT LAW, California Water Code 30000 et seq.; BUENA is a public entity organized and functioning pursuant to the COUNTY SANITATION DISTRICT ACT, Health and Safety Code 4700 et seq.; CARLSBAD is a General Law City,Government Code 34102, organized and functioning pursuant to the provisions of the California Constitution, Article XI 2 (a) and Government Code 36500 et seq.
2. The SAN MARCOS COUNTY WATER DISTRICT, pursuant to an agreement dated March 3, 1980 (Basic Agreement) with DAON CORPORATION, a Delaware Corpora- tion, authorized to do business in California (DAON) , is having an ocean outfall fail-safe pipeline sewer constructed from SAN MARCOS MEADOWLARK treatment plant to the coast to transport treated sewage into the Encina Ocean Outfall , by-passing -1- CUNTR CT N0. / 7 9."
10/25/2022 EXHIBIT 2 C5 Page 4 of 28
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the Encina* Treatment Plant; the contemplated routing of this pipeline is set forth in Exhibit "A" to this agreement which is made a part hereof.
3. Pursuant to the Basic Agreement, DAON and SAN MARCOS agreed to permit an enlargement of portions of the pipeline, the cost to be borne by the PARTIES requesting the enlargement.
4. SAN MARCOS has entered into a MEMORANDUM OF UNDERSTANDING with a number of owners of real property, collectively referred to as "DEVELOPERS", dated June 16,. 1980, (MEMORANDUM) whereby developers have re- quested and agreed to pay for the enlargement of portions of the pipeline.
5. The enlarged sections of the pipeline are designated to handle treated sewage generated in lands served by BUENA and CARLSBAD and to be treated in plants operated and owned by BUENA and CARLSBAD. The point of connection of the treated sewage transmission lines of BUENA and CARLSBAD at the proposed point of joining with the SAN MARCOS outfall is depicted on Exhibit "A".
6. The MEMORANDUM provides for the assignment by developers of their ownership of the right to use the capacity of the enlarged pipeline to BUENA and CARLSBAD.
7. BUENA wishes to accept the assignment of capacity in the pipe- line to serve both a separate project of DAON known as Shadow,ridge, located within the BUENA service area and the BUENA service area in general . The arrangements between BUENA and DAON-Shadowridge for such assignment are matters of separate agreement .to be reached between DAON and BUENA and are not a part of this Operation and Maintenance Agreement.
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8. CARLSBAD wishes to accept the assignment of capacity in the pipeline to serve proposed developments known as Koll , Calavera, and others; the arrangements between CARLSBAD and the participating developers for such assignment are matters of separate agreement between developers and CARLSBAD and are not a part of this Operation and Maintenance Agreement.
9. SAN MARCOS, BUENA and CARLSBAD are entering into this Agreement in order to delineate their respective rights and duties with respect to joint ownership of capacity in the enlarged portions of the pip?line which are to serve the respective parties and the operation and maintenance of those portions of the pipeline which are subject to said ownership, when construction is com- pleted and the assignment by developers-to BUENA and CARLSBAD is complete and effective.
COVENANTS
IT IS, THEREFORE, AGREED BY AND BETWEEN THE PARTIES, SUBJECT TO THE MUTUAL COVENANTS AND CONDITIONS AS SET FORTH HEREIN, AS FOLLOWS:
10. GENERAL PROVISIONS
10.1 SAN MARCOS shall be the lead agency and shall be responsible for supervision of the construction of the pipeline as enlarged and for the opera- tion and maintenance of the pipeline after construction. •
10.2 The percentage of capacity owned by each party in the project is set forth in this section. The final capacity will be determined by applying the percentages of this section to the pipeline as finally constructed. -3-
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SAN MARCOS BUENA CARLSBAD
San Marcos Reach 100% -0-% -0-%
Buena Reach 501, 50% _0-%
Carlsbad Reach 16.3% 16.3% 67.4%
Capacity is defined as the maximum instantaneous flow rate in millions of gallons per day.
11 . CONSTRUCTION
11 .1 DAON is responsible for construction of the outfall as enlarged pursuant to the Basic Agreement and the MEMORANDUM.
11.2 •SAN MARCOS shall administer the construction contract, DAON shall notify SAN MARCOS of the total amount and basis for each progress payment.
11 .3 Change orders in or amendments to the approved plans and specifications and change orders or extra items will be authorized by con- current action of DAON and SAN MARCOS.
11.4 SAN MARCOS shall monitor the construction of the project to insure compliance by the contractor with the approved plans and specifications or approved changes or amendments to the approved plans and specifications. 11 .5 Under the basic agreement DAON, with the assistance of SAPS MARCOS, shall take any and all steps necessary to acquire easements of rights of way for the project; in the event eminent domain proceedings are necessary, then SAN MARCOS shall take any necessary legal proceedings; all PARTIES agree to adopt any necessary resolutions connected with said legal proceedings; the cost of all such legal proceedings shall be part of the construction cost.
12. ROUTINE MAINTENANCE AND OPERATION OF THE PROJECT
12.1 On completion of the project, SAN MARCOS shall own the line and shall maintain and operate the project in accordance with this agreement. -4-
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• 12.2 This agreement, when executed by SAN MARCOS and CARLSBAD, shall be effective as to CARLSBAD, upon acceptance by CARLSBAD.of the assignment of capacity right in the enlarged pipeline from Koll , Calavera, and others. CARLSBAD shall provide to SAN MARCOS a copy of the executed assignment. This agreement when executed by SAN MARCOS and BUENA, shall be effective as to BUENA upon acceptance by BUENA of the assignment of capacity rights in the enlarged pipeline from Daon-Shadowridge. BUENA shall provide to SAN MARCOS a copy of the executed assignment. Costs of maintenance and• operation shall be shared between SAN MARCOS, BUENA and CARLSBAD in proportion to their respective capacity rights on a reach by reach basis and as specified in Section 10.2 hereof.
12.3 Costs of expendables for all PARTIES, such as, but not limited to, power, chemicals, etc. , will be borne and paid by each of the PARTIES in a ratio of their flow to the total flow of water transported through the project for each of the PARTIES for the preceding calendar year; until such time as a preceding calendar year is available, the period of time shall be the cumulative preceding months of operation. Costs of expendables benefitti6g less than all PARTIES shall be borne by the PARTY or PARTIES concerned.
12.4 SAN MARCOS shall bill BUENA and CARLSBAD periodically (but not less than annually) for that PARTY's share of such costs and maintenance; BUENA and CARLSBAD shall pay such statement within sixty (60) days after receipt of the billing.
12.5 SAN MARCOS shall keep and maintain proper books of account and records in which complete and current entries shall be made of all transactions, including all receipts and disbursements, relating to the administration, mainten- ance, operation and repair of the project; BUENA and CARLSBAD shall have the right, at reasonable times, from time to time, during regular business hours to inspect all such books and records to verify any statement rendered by SAN MARCOS to BUENA or CARLSBAD for charges payable by those PARTIES to SAN MARCOS. SAN MARCOS shall utilize the "Uniform Accounting Program" of the State Controller's office for this purpose.
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12.6 BUENA'S consent to the common use of BUENA'S right of way, attached hereto and made a part hereof as Exhibit "B", is conditioned on payment of special costs to BUENA for maintaining BUENA'S existing pipeline due to the close proximity of the joint use pipeline until July 7, 2000. This cost, if incurred, shall be allocated as a maintenance and operation expense based on the percentage of ownership of capacity on a reach by reach basis in the affected area.
12.7 It is acknowledged and agreed by the PARTIES that it is difficult to establish in advance a detailed plan for accounting and allocation of operation and maintenance costs. Maintenance and operating costs shall mean the necessary costs of maintaining and operating the outfall based on generally accepted accounting pri.nciples, including, but not limited to, expenses necessary to maintain and preserve the outfall in good repair and working order, as well as insurance, taxes, administration, and any costs attributable to its maintenance and operation.
13. REPAIRS OR REPLACEMENT
13.1 Except in cases of emergency repairs, prior to making any repairs to any part of the pipeline in which BUENA or CARLSBAD have capacity rights which are estimated to cost in excess of' Ten Thousand Dollars, SAN MARCOS shall obtain prior approval of BUENA and CARLSBAD for any such expenditures.
13.2 The expenses of repair shall be charged to each PARTY on the basis of percentage of capacity in the reach involved and shall be substantiated by customary accounting procedures and shall be paid by BUENA and CARLSBAD within sixty (60) days after billing; provided, however, such costs benefitting less than all PARTIES shall be borne by the PARTY or PARTIES concerned. -6-
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13.3 The cost of replacing any portion of the pipeline shall be allocated on the basis of the percentages of capacity as set forth herein for the respective reach of the outfall being replaced.
13.4 SAN MARCOS shall undertake any necessary repairs or replacement at the earliest possible date,
14. METERS
14.1 SAN MARCOS, BUENA and CARLSBAD shall maintain meters to measure the flow of their treated effluent into the pipeline. Any PARTY removing treated effluent from the pipeline shall maintain meters to measure the amount of effluent being removed.
14.2 Each PARTY shall bear the full cost of the water meter and appurtenances installed for the use of that PARTY in measuring the amount of water discharged into or removed from the pipeline.
15. SPECIAL PROVISIONS
. 15.1 In the event that the California Regional Water Quality Control Board, San Diego Region, its successor, or any other Agency having jurisdiction over the operation, maintenance and use of the outfall other than the PARTIES requires that additional facilties be constructed as a condition of pipeline use or that the pipeline be modified, the costs thereof shall ,be *borne by the PARTIES on the basis of percentage of capacity for the particular reach for which the expense is required to be incurred.
15.2 No structural change or modification of the outfall lying outside the boundary of SAN MARCOS shall occur without first obtaining the written consent of all of the parties to this agreement involved in that joint use. Said consent shall not be unreasonably withheld. -7-
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16. TECHNICAL REQUIREMENTS
16.1 The PARTIES shall normally maintain a quality of effluent that complies with'standards established in the National Pollution Discharge Elimination System (NPDES) Permit of Encina or the provisions thereof as amended from time to time by the California Regional Water Quality Control Board, San Diego Region, on behalf of the State of California and the Environmental Protec- tion Agency. The PARTIES further agree that they will not deliver to the pipeline any material or substance which directly or indirectly or in combination with other material or substance delivered to the pipeline by others to this Agreement which would prevent Encina from complying with said permit.
16.2 The PARTIES may mutually agree to maintain a quality of effluent that complies with standards for reuse of said effluent as defined by Title 22 California Administration Code 60001 , et seq. as amended from time to time, provided the modified standard of quality of effluent complies with the effective discharge permit for the Encina 0utfall .
16.3 During the period of temporary connection to the Leucadia-Carlsbad by-pass of the Encina Treatment Plant, the PARTIES shall co- operate to insure that the >naximum hydraulic head at that point is less than
13.0 psi.
16.4 Each PARTY agrees to exert its best efforts on a con- tinuing basis to enforce regulations prohibiting the discharge of toxic materials to Encina. Each PARTY agrees to enforce rules and regulations relative to the .discharge of sewage and waste water to the pipeline to insure that anything - introduced into the pipeline is consistant with the' Encina NPDES discharge permit.
16.5 Any PARTY failing to comply with the provisions of Section 16 shall pay any costs directly or indirectly resulting therefrom, 10/25/2022 C5 Page 11 of 28
including the cost of ascertaining and establishing that such did occur as well as any fines, penalties, engineering, accounting, administrative and legal costs, as well as any resulting increased operating, maintenance and replacement or repair costs that are incurred.
17. OWNERSHIP, USE AND SALE OF RECLAIMED WATER
17.1 BUENA, CARLSBAD and SAN MARCOS, individually, shall be sole and exclusive owner of the treated effluent which they discharge into the pipeline and shall be the sole judge of the manner of distribution or sale of the treated effluent owned, respectively, 'by each of the parties within the territory of such PARTY; no other PARTY shall have any right, title or interest or claim with respect to any other PARTY'S use or disposition of the treated effluent which is owned by that individual party within the territory of such PARTY.
17.2 Each PARTY now or may in the future reuse or reclaim its sewage and wastewater. Neither execution of this Agreement nor use of the SAN MARCOS outfall. shall be construed as a dedication of any sewage, wastewater or resulting effluent or reclaimed water for public use. Ownership of such sewage, wastewater or resulting effluent or reclaimed water shall remain in its proper quantity as to the PARTY delivering or causing such to be delivered to SAN MARCOS outfall until it is discharged from the Ocean Outfall .
18. INDEMNITY OF BUENA AND CARLSBAD .
18.1 SAN MARCOS shall indemnify; assume the defense of, and hold, free and harmless, BUEP+A and CARLSBAD, their officers, directors, agents and employees from any and all obligations, liabilities, liens, claims, demands, losses, damages and expenses, of whatever type or nature, including, but not limited to, attorney's fees and all litigation costs arising out of SAN MARCOS' -4-
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operation or maintenance of the pipeline or any other act or omission to act by SAN MARCOS, its agents, servants, employees, invitees, or independent contractors relating to the operation and maintenance of the pipeline.
18.2 Notwithstanding the foregoing, the indemnity agreement created by this Paragraph 18 shall not indemnify BUENA or CARLSBAD, their directors, agents or employees against any liability arising from the negligence or willful misconduct of BUENA or CARLSBAD, their officers, directors, agents, employees or independent contractors.
19. SAN MARCOS TO MAINTAIN INSURANCE
19.1 SAN MARCOS shall maintain in force during the full period of this agreement a full comprehensive public liability and property damage insurance policy insuring against any and all claims for injuries or death of persons or damage to property occurring in, upon, or about the property subject to this agreement.
19.2 The insurance.contract shall have limits of not less than $1 ,000,000,00 single-limit coverage, BUENA and CARLSBAD, their officers, directors, agents and employees, shall be listed as additional insureds, and it shall provide for at least forty-five (45) days notice of cancellation or modification of coverage or limits. Said insurance shall be included as an operating and main- tenance expense as provided in Section 12.7.
20. NOTICES
20.1 Notices which any PARTY is required to give or desires to give hereunder may be served upon another PARTY by personally delivering a copy thereof, or by mailing any such notice by certified mail , return receipt requested, postage prepaid, addressed as follows:
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. SAN MARCOS COUNTY WATER DISTRICT
788 W. San Marcos Boulevard
San Marcos , California 92069
BUENA SANITATION DISTRICT
c/o Department of Sanitation & Flood Control (0384) County of San Diego
County Operations Center
5555 Overland Avenue
San Diego, .California 92123
CITY OF CARLSBAD
1200 Elm Avenue
Carlsbad, California 92008
20.2 Any PARTY may from time to time designate a different address for notice by notifying the other PARTIES; any notice mailed by regular mail shall be deemed received by the PARTY to whom such notice is addressed forty-eight (48) hours after the mailing thereof; any- notice mailed by certified mail , return receipt requested, shall be deemed received by the PARTY to whom such'notice is addressed on the date of the return receipt. 21 . MODIFICATION ,
This Agreement may not be-altered in whole or in part except ,by modification in writing, executed by all PARTIES to this agreement.
22. ATTORNEY'S FEES
22.1 In the event any arbitration proceedings, administrative proceeding or litigation in law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions or performance of this agreement, the prevailing PARTY shall be entitled to the award of a reasonable attorney's fee and the costs of the proceeding, which shall be determined by the Court or the presiding officer having authority to make this determination. -11-
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22.2 If any PARTY to this agreement becomes a party to any litigation, administrative proceeding or arbitration concerning the enforcement or interpretation of the provisions of this Agreement or the performance of this Agreement by reason of any act or omission of another party or authorized repre- sentatives of another party to this Agreement and not by any act or omission of the party that becomes a party to that proceeding or any act or omission of its authorized representatives, the party that causes another party to become involved in the proceeding shall be liable to that party for reasonable Attorneys •fees and costs of the proceeding incurred by that party in the proceeding. The award of reasonable attorney's fees and costs shall be determined as provided above.
22.3 In the event opposing PARTIES have each prevailed on one or more causes of action actually contested or admitted by pleadings or pre- hearing documents on file, the presiding officer shall make an award of a ttorney's fees and costs, but the presiding officer may prorate such fees and costs between prevailing parties based on the necessity of the proceeding and the importance of the issue upon which each party has prevailed.
23. ENTIRE AGREEMENT
This Agreement, together with the exhibits hereto, contains all representations and 'the entire•understanding between the PARTIES with respect to the subject matter of this Agreement. Any prior correspondence, memoranda ,or agreements are replaced in total by this Agreement and exhibits hereto.
24. NO MERGER
The obligations herein contained shall not merge with transfer of title but shall remain in effect until fulfilled. 10/25/2022 C5 Page 15 of 28
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25. ASSIGNMENT
No party to this Agreement shall be entitled to assign all or any portion of their rights or obligations contained in this Agreement without obtaining the prior written consent of the other PARTIES.
26. BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon parties hereto and their respective successors, heirs, and assigns.
27. APPLICABLE LAW
This Agreement and any disputes relating to this Agreement shall be construed under the laws of the State of Califonia.
28. UNENFORCEABLE PROVISIONS
28.1 The terms, conditions, and covenants of this Agreement should be construed, wherever*possible; consistent with applicable laws and regulations.
28.2 To the extent that any provision of the Agreement violates any applicable law or regulation, the remaining provisions shall nevertheless be carried into full force and effect and remain enforceable.
29. ARBITRATION OF DISPUTES
29.1 Any controversy or claim between the parties to this Agreement including, but not limited to, any claims, disputes, demands, differences, controversies, or misunderstandings arising under, out of, or in relation to this Agreement, or any alleged breach of this Agreement, shall be submitted to and determined' by arbitration in accordance with the California Arbitration provisions contained in Civil Procedure 1280 et seq. , as amended from time to time.
29.2 The arbitrator or arbitrators shall determine the rights of the PARTIES in accordance with the law and the award shall be subject to review 10/25/2022 Page 16 of 28
LL4J
as to the arbitrator's application of the law by any court having jurisdiction of the matter, whether or not any mistake of the law shall appear upon the face of the award. As to all question of fact, however, the determination of the arbitrator or arbitrators shall be binding upon all PARTIES and shall be deemed final and conclusive. Each PARTY shall be entitled to written findings of fact and conclusions of law as to all issues determined by the award. Subject to the above limitations, the award granted by the arbitrator shall be binding upon all PARTIES to the arbitration and judgement upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction over the matter.
30. VENUE. For the purpose of litigation or arbitration, venue shall lie in the North County Judicial District, County of San Diego, State of Calif- ornia, or, if such venue cannot be exercised, in the Federal or State Court nearest to the North County Judicial District, County of San Diego.
31. TERM This Agreement is executed and is to be performed in the North County Judicial District, County of San Diego, State of California, and consists of 22 pages (including exhibits), and shall continue in effect until terminated by mutual agreement of the PARTIES.
IN WITNESS WHEREOF the respective PARTIES have caused this instrument to be executed by their respective officials and to be sealed by the official seal pursuant to motions duly adopted by the Board of Directors of each PARTY. -14-
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Signature page to Agreement titled "San Marcos Water District, Buena . .. Sanitation District and the City of Carlsbad Agreement for the Operation and Maintenance of an Ocean Failsafe Treated Effluent Outfall Pipeline. (SEAL)
DATED: '� SAN COS COU
By:
J STRICT
/ 1 �
/
App d as to fo Marg et E. Ye-rgu,§on res ent By:
erno A. Pe tier, Dis ct Counsel es F. Mc ay ecretary (SEAL)
DATED: BUENA SANITATION DISTRICT
By:
Porter D Cremans , Clerk of the
Approved as to form: Board of Directors
County. Counse
(SEAL)
DATED: • 3 O r 4 P CITY OF CARLSBAD � -
Approved as to form: By. --"-Ironald C. Packard, Mayor i cen io o, r City
Attorney
10/25/2022 C5 Page 18 of 28
- Signature Page to Agreement titled "San Marcos County Water District, Buena Sanitation District and the City of Carlsbad Agreement for the Operation and Maintenance of an Ocean Failsafe Treated Effluent Outfall Pipeline. (SEAL)
Dated: / SAN f
COUNTY WA I ICT
Byv'lae M -
Appr d as to Fo Margar E. Fergus6n, P sident 67 B��j
Ve n A. Peltier, Distri Counsel es F. Mc y ecretary (SEAL)
Dated: /Q-.to- ri BUENA SANITATION DISTRICT
By: �-�
Approved as to Form Por er remans, Clerk of the Board of Directors
County Counsel
(SEAL)
Dated: CITY OF CARLSBAD
BY:
Approved as to Form Ronald C. Packard, Mayor Vincent F. Biondo, Jr. City Attorney
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10/25/2022 C5 Page 19 of 28
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CONSENT TO COMMON USE AGREEMENT
THIS AGREEMENT, entered into this day of , 19.7o , by and between Buena Sanitation District, hereinafter called "Buena," and the San Marcos County Water District, hereinafter called "San Marcos,"
WITNESSETH
Whereas, Buena is the owner in possession of certain rights of way and _ easements, hereinafter referred to as "Buena's easement," and described by . the following easement documents:-
File/Page No. 126860 recorded July 14, 1964 and by Superior Court Case 286258 Tecorded as File/Page No. 212128 on November 20, 1964; File/Page No. 126861 recorded July 14, 1964 and by Superior Court Case 286258 recorded as File/Page No. 672 on January 4, 1965; File/Page No. 28063 recorded February 16 1965 and Superior- Court Case 286258 recorded as File/Page No. 27924 recorded February 16, 1965; File Page/No. 1288 recorded January 5, 1965 and Tile/Page No. 17135 recorded ' Septemtier 21, 1965; all in the official records of. San Diego County.
-and
°Whereas, San Marcos has acquired certain lands for reclaimed sewage pur- poses in the vicinity of San Marcos, County of• San Diego, near Palomar Air- port Road, hereinafter referred to as "San Marcos R/W," and
RECEIVED
JUL 2 Q 1980
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Whereas, the San Marcos right of way occupies a ,portion of Buena's •ease- ment and is subject to said easement which said portion is hereinafter re- ferred to as "area of common use," and is described as follows: a portion of the existing easement from station 10+50 to station 147+33.79. .Now, Therefore, Buena and San Marcos, hereby mutually agree as follows:
1. Buena hereby consents to the construction, reconstruction, main- tenance or use by San Marcos of a reclaimed sewage failsafe line, over, along _and upon Buena's easement in the area of common use upon and subject to the terms and conditions herein contained.
2. San Marcos acknowledges Buena's title to. Buena's easement in said .area of common use and the priority of Buena's title over the title of San 14arcos therein. Buena has and reserves the right and easement to use, in common with San Marcos's use of said fai lsafe line, said area of common use for all of the purposes for which Buena's easement was acquired, without need :for -any further permit or permission from San Marcos. Except in emergencies, • Buena shall give reasonable notice to San Marcos before performing any work •ten Buena's facilities in said area of common use. 3_ a) TV Inspection of Existing Buena Outfali Sewer. At San Marcos -expense, a TV inspection of the sewer will be made prior to the start of :construction, along the length of sewer that placement of the proposed pipeline will occur, to establish the existing condition of said sewer, upon -Completion of construction, a second TV inspection will be made to determine "what effects the construction process had on the outfall sewer, 10/25/2022 C5 Page 22 of 28
Should the second inspection reveal any damage to outfall sewer, San Marcos will be responsible for the reoairs necessary to restore the sewer to its previously existing condition.
b. Excess Cost of Future Maintenance to Outfall Sewer. San Marcos agrees to reimburse Buena for excess costs, both direct and indirect, for excavation, shoring, or bracing incurred during maintenance or repair work to the Buena outfall sewer, as a result of the presence of the failsafe pipeline. The term of this excess cost reimbursement agreement shall be 20 years.
e. San Marcos agrees to hold Buena harmless from damage claims by others due to construction of the San Marcos failsafe line; damages include but are not limited to damage to agricultural crops near the construction site from dust, interruption of irrigation systems, etc.
4. In the event that the future use of said failsafe line shall at any time or times necessitate a rearrangement, relocation, reconstruction or re- moval of any of Buena's facilities then existing in said area of common use and San Marcos shall notify Buena in writing of such necessity and agree to. -reimburse Buena on demand for its costs incurred in complying with such no- tice, Buena will provide San Marcos with plans . of its proposed rearrangement and an estimate of the cost thereof and, upon approval of such plans by San Marcos, Buena will promptly proceed to effect such rearrangement, relocation, reconstruction or removal . No further permit or permission from San Marcos for such rearrangement shall be required and if 10/25/2022 C5 Page 23 of 28
such rearrangement shall require the relocation of any of Buena's facilities outside of said area of common use, San Marcos will (1) enter into a standard form of joint use agreement covering the new location' of Buena's easement - within the San Marcos right of way, (2) provide excuted document(s) granting to Buena a good and sufficient easement outside of the San Marcos right of way if necessary to replace Buena's easement or any part thereof, and (3) reimburse Buena for any costs it may be required to expend to acquire such easement, provided it is mutually agreed in writing that Buena shall acquire such easement.
5. Except as expressly set forth, herein, this agreement shall not in any way alter, modify or terminate any provision of Buena's easement. Both • San Marcos and Buena shall use said area of common use in such a manner as not to inerfere unreasonably with the rights of the other. Nothing herein contained shall be construed as a release or waiver of any claim for compensation or damages which Buena or San Marcos may now have or 'may hereafter acquire resulting from the construction of additional facilities or the alteration of existing facilities by either San Marcos or Buena in such a manner as to cause an unreasonable interference with the use of said area of -common use by the other party.
fi. THIS AGREEMENT shall inure to the benefit of and be binding upon the successors and assigns of both parties.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed in duplicate by their respective officials thereunto duly authorized.
10/25/2022 C5 Page 24 of 28
SAN MARCOS COUNTY WATER DISTRICT
BY
President, Board of Directors
By
Secretary, San Marcos County Water District
BUENA SANITATION DISTRICT
'APPRO= �F
DWRtcr 80 Oz D1R:CtCR
JUL
BY 41,
er of the Board of Directors
l�s
CLERK Or SUE mmv Do►n of 4:. '
APPROVED AS TO FORM AND LEGAUlV
CoU►yry �CJ;�SEL
B
DEPUTY
10/25/2022 C5 Page 25 of 28
SAN 1ARCOS COUNTY WATER DISTRICT
BY
Presi enJ Board of Directors .
By
cretary, San cos County Water District
r BUENA SANITATION DISTRICT
By - : . .
Clerk of the Board of Directors
a
10/25/2022 C5 Page 26 of 28
23Y
r.
1 RESOLUTION NO. 6701
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA, APPROVING AN AGREE-
3 MENT FOR THE OPERATION AND MAINTENANCE OF AN
OCEAN FAILSAFE TREATED EFFLUENT OUTFALL
4 PIPELINE
5 6 WHEREAS the San Marcos County Water District and certain property 7 owners within the City of Carlsbad have entered into a memorandum of 8 understanding to provide for the enlargement of a treated effluent dis- 9 posal line, and;
10 WHEREAS the memorandum of understanding provides for the transfer of 11 ownership of capacity rights in the treated effluent disposal line from 12 the property owners to the City of Carlsbad, and; 13 WHEREAS a condition precedent to the transfer of capacity rights is 14 an agreement between Carlsbad and San -Marcos for the operations and main- 15 tenance of said treated effluent disposal line, and; 16 WHEREAS the operations and maintenance agreement for the treated 17 effluent disposal line is necessary to- determine the respected agencies 18 capacity rights within said treated effluent disposal line and for the 19 distribution of operations and maintenance costs for the line; 20 NOW THEREFORE BE IT RESOLVED that the City Council of the City of 21 Carlsbad approves the operations and maintenance agreement identified 22 as Exhibit A and attached hereto and made a part hereof and authorizes 23 the Mayor of the City of Carlsbad to sign said agreement on behalf of the 24 City.
25 26
27 28
10 5/2022 C5 Page 27 of 28
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SAN MARCOS
DATE: October 25, 2022 Exhibit 3 SUBJECT: VALLECITOS FAILSAFE OUTFALL REHABILITATION (CIP No. 8346) LOCATION: PORTIONS OF PALOMAR AIRPORT ROAD and CAMINO VIDA ROBLE 10/25/2022 EXHIBIT 3 C5 Page 28 of 28