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HomeMy WebLinkAboutResolution 2013-037 N.C.S. 4/15/2013 Resolution No. 2013-037 N.C.S. of the City of Petaluma, California AUTHORIZING THE CITY MANAGER TO EXECUTE AGREEMENTS FOR PURCHASE AND USE OF RECYCLED WATER WITH LONG TERM AGRICULTURAL CUSTOMERS WHEREAS, the Regional Water Quality Control Board prohibits the City from discharging treated effluent into the Petaluma River from May 1 to October 20; and, WHEREAS, the application of recycled water and maintenance of the City's recycled water system is included in the Department of Public Works and Utilities Fiscal Year 2012-2013 Operations and Maintenance Budget; and, WHEREAS, agreements that the City has historically maintained with long-term agricultural users of City recycled water for irrigation purposes involve the application of approximately 260 million gallons (798 acre-feet) of recycled water from the City's Ellis Creek Water Recycling Facility; and, • WHEREAS, it is estimated that the annual amount of water not discharged to the Petaluma River but instead recycled is 36% of all wastewater generated from the City; and, WHEREAS, the City Council has directed City staff to pursue agreements for the distribution of recycled water to agricultural customers based on a "user pay" system with rates set to recover a portion of the City's recycled water system operating costs as currently reflected in the recycled water commodity charge set by the City Council by resolution; and, WHEREAS, continued agricultural reuse of recycled water pursuant to new"user pay" recycled water use agreements with the City's long-term agricultural customers will support compliance with the requirements of the Regional Water Quality Control Board through disposal/beneficial reuse of City recycled water; and, WHEREAS, discounting the recycled water commodity charge for long-term agricultural users will ensure disposal of sufficient quantities of City recycled water in accordance with the Regional Water Quality Control Board discharge restrictions and conversion of the City's recycled water distribution program to a "user pay" program, resulting in financial benefits to the City's recycled water program; and WHEREAS, this action involves only the approval of modified payment terms and contract provisions for the City's existing program of contracting to distribute recycled water to end users within the City's existing physical system. It is not a project for purposes of California Environmental Quality Act, pursuant to Public Resources Code section 21065 and CEQA Guidelines section 15378. An EIR for the Petaluma Water Recycling Expansion Program (SCH #2007052146) was certified by the City Council Resolution No. 2008-206 on November 3, 2008. Resolution No. 2013-037 N.C.S. Page 1 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma that the City Manager is authorized and directed to•execute on behalf of the City Agreements for Use and Purchase of Recycled Water with agricultural users, in a form substantially similar to the form agreement in Exhibit A attached hereto, subject to the review and approval of the City Attorney. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Ap, roved as to Council of the City of Petaluma at a Regular meeting on the 15th day oiApril.2013, rm: by the following vote. City Attorney AYES: Vice Mayor Albertson, Barrett,Barris, Healy. Kearney,Miller NOES: None ABSENT: Mayor Glass ABSTAIN: None 101/4 ATTEST: aotik_u City Clerk Vice May r Resolution No. 2013-037 N.C.S. Page 2 • Exhibit A AGREEMENT FOR THE PURCHASE AND USE OF RECYCLED WATER THIS AGREEMENT ("Agreement") is made this day of , between the City of Petaluma, a California municipal corporation ("City,") and , ("Purchaser"). City and Purchaser are also each referred to in the singular in this Agreement as a Party and in the plural as the Parties. RECITALS A. Purchaser owns and/or leases approximately acres of real property in Sonoma County, California, identified as Assessor's Parcel Na(s). , ("Property"), as further described in Exhibit A which is attached to and made a part of this Agreement. B. City owns and operates a wastewater treatment and water recycling facility, ("City Facilities"), and collects, treats, and disposes of wastewater produced within the City's service area. C. City Facilities produce tertiary treated recycled water ("recycled water") for irrigation purposes. City produces such recycled water pursuant to Order No. 96-011 of the California Regional Water Quality Control Board, San Francisco Bay Region ("Order"), which is attached to and made a part of this Agreement as Exhibit B. D. City desires to sell and Purchaser desires to purchase and use recycled water from City for irrigation of Purchaser's owned and/or leased Property, subject to the terms of this Agreement. Purchaser intends to irrigate approximately acres of to be developed on the Property with recycled water. In consideration of the mutual agreements, terms and conditions contained in this Agreement, the parties agree as follows. 1.0 DEFINITIONS Board means the California Regional Water Quality Control Board, San Francisco Bay Region. Director means the City of Petaluma's Director of Public Works and Utilities-or designee. Irrigation Season means the period during which Recycled Water is provided to the Purchaser by the City pursuant to this Agreement, typically from May 1 through October 20. Irrigated Land means the area(s) of the Property that are designated by Purchaser to be irrigated with Recycled Water in accordance with this Agreement. Permit or Permits means all of the following (a) the National Pollution Discharge Elimination System (NPDES) permit, or successor permit, establishing requirements for the discharge of City treated wastewater into the Petaluma River, and (b) the General Water Reuse Order No. 96-011, or successor permit, establishing requirements for reuse of City Recycled Water, as may be issued, modified or reissued by the Board or successor governmental agency. 2.0 RECITALS. The recitals above are incorporated into and made a part of this Agreement. 3.0 TERM. This Agreement shall become effective on the date first above written and shall expire three (3) years thereafter, or on ("Expiration Date"), unless terminated earlier in accordance with section 18.0. Purchaser and City may amend this Agreement in accordance with section 17(D) to extend the Agreement term by whole years up to a maximum of two (2) additional years from the Expiration Date. Any such extension will be based in part on City's determination, in its sole discretion, that a sufficient supply of recycled water will be available to serve Purchaser and users under the City's urban Resolution No.2013-037 N.C.S. Page 3 water recycling program, and other agricultural users. City shall notify Purchaser in writing by January 1, , of potential extension of the Agreement. 4.0 PURCHASE PRICE. For the term of this Agreement, Purchaser will pay the City at the rate of $80 per acre-foot of recycled water delivered to the Purchaser. The City shall not pay Purchaser or grant an offset against the purchase price for recycled water for Purchaser's costs of maintaining or operating Purchaser's water system. 5.0 CONNECTION FEE. Purchaser shall pay any and all costs of connecting to City's recycled water system, including, but not limited to, the cost of the meter, tapping of the main, and all other City expenses of connecting to the City recycled water system based on the size of the meter needed to provide adequate recycled water flow to meet requested demand at the time the connection is made. City Water connection and capacity fees will not apply to Purchaser's connection to the City recycled water system. Other development of Purchaser's property shall be subject to all applicable City development-related fees. 6.0 METERING AND MEASUREMENT OF FLOWS. Purchaser agrees that the City shall read the meter and record recycled water used at the location where recycled water is used. 7.0 PAYMENT FOR RECYCLED WATER. City shall invoice Purchaser for the cost of recycled water used by Purchaser on a monthly basis based on meter readings. Said invoices shall be due and paid within 30 days of the date of billing. Delinquent invoices for recycled water pursuant to this Agreement, in addition to being subject to the provisions of this Agreement, shall be subject to penalties, enforcement and other requirements applicable to water service contained in Title 15 of the Petaluma Municipal Code, as amended from time to time. 8.0 DELIVERY AND USE OF RECYCLED WATER. (A) City Delivery. City agrees to deliver recycled water to Purchaser at the irrigation meter installed by City in accordance with this Agreement. (8) Minimum Recycled Water Usage. Purchaser agrees to use and the City agrees to deliver a minimum of acre-feet of recycled water during the Irrigation Season, which shall be referred to herein as the "Committed Volume." Purchaser's failure to use the Committed Volume will result in the City billing Purchaser for an amount of recycled water equal the difference between Purchaser's actual use and the Committed Volume, as liquidated damages, which amount shall be due and payable, so long as Purchaser's failure to use the Committed Volume is not due to a lack of or interruption in supply, failure of City delivery systems or other limitations on availability as described in Section 9.0 hereof. (1) Change in Committed Volume. Should Purchaser or City desire to change the Committed Volume for any year, Purchaser and City may agree to amend the Committed Volume by February 1 that year in accordance with section 17(D). (C) Maximum Flow Rate. The maximum flow rate of recycled water the Purchaser is permitted to use shall be gallons per minute, Purchaser agrees to irrigate at or below the maximum flow rate specified in this provision. (D) Maximum Weekly Allocation. The maximum weekly volume.of recycled water the Purchaser is permitted to use during the Irrigation Season shall not exceed acre-feet. A week is defined as Sunday through Saturday. Resolution No. 2013-037 N.C.S. Page 4 (E) Irrigation Line and Irrigation Equipment. Purchaser's use of recycled water must be in accordance with all applicable Permit requirements, and with the following: (1) Connection to City Pipeline. Purchaser shall design, construct, purchase and install Purchaser's pipeline downstream of the City's meter (i.e. Purchaser's responsibility begins at the face of the meter) including box, valves, pressure regulator and any other appurtenances necessary to receive recycled water from the City's pipeline. Location of connection to City's recycled water pipeline shall be as approved by City. (2) Hose Bibs. No hose bibs shall be connected to the recycled water pipeline. (3) Runoff. Purchaser's on-site irrigation system must be configured and operated to prevent runoff from leaving Irrigated Land or the Property. (4) Identification Tags. All meters, valves, blowoffs, and controllers shall be identified using recycled water identification tags, T. Christy Enterprises 3150, or equal. Tags shall be weatherproof plastic, 3-inch by 4-inch, purple in color with the words "RECYCLED WATER- DO NOT DRINK," or similar printed on one side, and "AQUA IMPURA- NO TOMAR," on the other side, or similar as approved by the Engineer. (5) Plans. Purchaser shall prepare and submit plans for connection to City's recycled water pipeline for portions owned and installed by Purchaser up to the point of connection to the City's irrigation system (the irrigation meter). City shall review plans and establish conditions of approval. (F) Water Pressure. The pressure of recycled water delivered by City will vary and can be as high as approximately 110 psi. However, the City makes no guarantee concerning the pressure of delivered recycled water. The City expressly disclaims any guarantee, warranty or representation that the recycled water delivered by the City will conform to any particular pressure requirements of Purchaser's facilities. Purchaser understands and agrees that Purchaser must install pressure regulators and any and all other appurtenances or equipment necessary to protect Purchaser's equipment from high pressures or surges within the City's System or to maintain a desired recycled water pressure for Purchaser's system. (G) Purchaser's Maintenance Responsibility. Purchaser shall operate, maintain and repair all recycled water pipeline and appurtenances downstream (on the Purchaser's side) of the City's irrigation meter connecting the City Facilities to the Purchaser's irrigation system. (H) City's Maintenance Responsibility. Subject to the terms of this Agreement, City shall operate, maintain and repair City's recycled water facilities and pipelines up to and including the irrigation meter installed by City connecting the City Facilities to the Purchaser's irrigation system. (I) On-Site Supervisor. Purchaser shall designate in writing an on-site supervisor who is responsible for the safe and efficient operation of the Purchaser's recycled water system. The on-site supervisor shall be knowledgeable about all facets of Purchaser's irrigation system, including regulations, layout of the system, and maintenance. Purchaser and on-site supervisor shall be trained and certification shall be provided by the Purchaser to the City as to the qualifications and training of the on-site supervisor, to the satisfaction of the City. (J) Scheduling of Usage. The City must dispose of approximately its entire daily recycled water production through City use and distribution to City recycled water customers. Purchaser agrees to participate in recycled water delivery scheduling meetings as may be convened by the City from time to time to coordinate recycled water delivery schedules for all users. The purpose of such meetings is to establish delivery schedules and delivery flow rates that will dispose Resolution No. 2013-037 N.C.S. Page 5 of City's recycled water and that can be sustained by the City Facilities, and that will meet most needs of recycled water customers. The City will use reasonable efforts to accommodate recycled water customers', including purchaser's reasonable request regarding recycled water delivery schedules and flow rates. The determination of City recycled water delivery schedules and flow rates for all recycled water customers shall be in the City's sole discretion. City-determined recycled water delivery schedules and flow rates will govern availability to Purchase of recycled water under this agreement. If Purchaser fails to participate in recycled water delivery schedule meetings in accordance with this section, the Committed Volume pursuant to this Agreement may be amended, or this Agreement terminated, in accordance with its terms. 9.0 LIMITATIONS ON DELIVERY OF RECYCLED WATER. (A) Limitations. Notwithstanding any requirements in this Agreement for either party to deliver or accept recycled water, the City and Purchaser understand and agree that delivery or acceptance of recycled water may at times be precluded, impracticable, or otherwise prevented or infeasible for reasons beyond the reasonable control of City or Purchaser. City will not be obligated to provide and Purchaser will not be obligated to accept recycled water when delivery or acceptance is prevented by a cause beyond either party's reasonable control, including, but not limited to: Acts of God, shortage of recycled water, malfunction of either party's system, temporary imbalance of recycled water in the various storage ponds comprising part of the City Facilities, changes in applicable discharge or monitoring requirements, a determination by any regulatory agency that recycled water is not suitable for the intended use, crop failure or other problem with the crop or agricultural improvements related thereto which would reasonably preclude use of recycled water, or a determination or allegation by a body of competent jurisdiction that the use of recycled water pursuant to the Agreement is unlawful. The parties agree to cooperate in good faith in case of an event that wholly or partly excuses delivery or use of recycled water pursuant to this provision to fulfill the purposes of this Agreement and to restore delivery and use of recycled water as soon as reasonably practicable. City agrees to use reasonable efforts to provide Purchaser with 24 hours advance notice of anticipated interruptions in service due to construction, repairs or other causes within the City's control. (B) Allocation of Limited Supply of Recycled Water. Purchaser understands and agrees pursuant to this provision 9.0 that City does not and cannot guarantee to Purchaser uninterrupted supply or use of recycled water. In accordance with this Agreement, City will use reasonable efforts to supply to Purchaser and Purchaser will use reasonable efforts to use recycled water so that Purchaser can use at least the Committed Volume pursuant to provision 8.0(B) of this Agreement. In the event of a recycled water shortage for any reason, City will use reasonable efforts to equitably distribute available recycled water to users, including Purchaser, who have entered into recycled water purchase and use agreements with City. Purchaser understands and agrees that in case of a recycled water shortage, City may, in City's sole discretion, allocate available recycled water giving preference to users based on the seniority of the user's agreement for purchase and use of recycled water with the City, based on the volume of water required by the user, or by any other method. 10.0 MONITORING. Purchaser will be solely'responsible for managing and monitoring the storage and distribution of recycled water under the control of Purchaser (downstream or on the Purchaser's side of the City irrigation meter). So long as this Agreement remains in effect and as a condition of receiving recycled water pursuant to this Agreement, Purchaser hereby grants City, acting through its duly authorized employees, agents and representatives, reasonable access to the Property for the purpose of sampling, meter Resolution No.2013-037 N.C.S. Page 6 reading, and observing as reasonably required, Purchaser's use of recycled water. City will use reasonable efforts to provide Purchaser (or a representative) with reasonable prior notice of any such observation on the Property and will allow Purchaser to be present during any such access pursuant to this provision and will use reasonable efforts to avoid interfering with Purchaser's operations on the Property. 11.0 PURCHASER OBLIGATIONS CONCERNING SUITABILITY OF RECYCLED WATER. (A) Regulatory Agencies. City and Purchaser understand and agree that all recycled water delivered to Purchaser pursuant to this agreement shall be subject to the current and future water recycling requirements established by the Permits and other applicable requirements. City will make available to Purchaser upon request such test reports as are periodically required of City by regulatory agencies to characterize the recycled water. The results of these tests are maintained at the City's Department of Public Works and Utilities, Environmental Division. (B) Recycled Water. Purchaser and City understand and agree that recycled water delivered by City is filtered, and may contain algae and other constituents which, if not removed, may adversely impact Purchaser's irrigation equipment. It is Purchaser's responsibility to install and operate equipment as necessary to remove constituents in recycled water delivered pursuant to this Agreement that may impact Purchasers' irrigation or other equipment. It is Purchaser's responsibility to properly manage and dispose of material removed from recycled water by Purchaser's equipment. (C) Suitability. Purchaser understands and agrees that recycled water delivered by City is produced through treatment of wastewater. It is Purchaser's responsibility to determine and confirm that quality of recycled water delivered by City is consistent with water quality and other requirements that apply to Purchaser's use of recycled water, including, but not limited to, the requirements of crops Purchaser intends to irrigate with recycled water. 12.0 RECYCLED WATER APPLICATION RESTRICTIONS. Purchaser agrees as a material term of this Agreement to use recycled water in compliance with all applicable laws, ordinances, or regulations now in effect or hereafter enacted or adopted. Purchaser agrees to notify City of known violations of laws and/or regulations, or damage to City irrigation facilities or other City Facilities or property within 24 hours of discovery of such violation or damage. Purchaser shall be solely responsible for the cost of repair for damage caused by Purchaser or Purchaser's employees, agents, or contractors or others acting on behalf of or under Purchaser's control arising from or related to use of recycled water pursuant to this Agreement. It Purchaser does not comply with laws, ordinances, or regulations governing the use of recycled water pursuant to this Agreement, in addition to and not in lieu of any other remedies available to the City pursuant to this Agreement or applicable law, City may immediately cease recycled water delivery pursuant to this Agreement and terminate this Agreement and so notify Purchaser. In City's sole discretion, City may, but is not required to, grant Purchaser a reasonable time within which to cure and correct any non-compliance concerning use of recycled water pursuant to this Agreement. If City grants Purchaser time within which to cure and correct any non-compliance concerning use of recycled water, and Purchaser fails to cure such non-compliance within the specified time, the City may in its sole discretion terminate this Agreement and so notify purchaser. 13.0 TRAINING. Purchaser is responsible for ensuring that Purchaser's recycled water system maintenance, irrigation, management and operations staff and any others that may come into contact with recycled water on the Property understand the presence of recycled water on the Property, that recycled water is not for human consumption, recycled water shall not be used as an animal water supply, and the safe use of Resolution No. 2013-037 N.C.S. Page 7 recycled water and operation of the recycled water system. Purchaser's on-site supervisor shall be trained and certification shall be provided by the Purchaser to the City as to the qualifications and training of the on-site supervisor, subject to acceptance and approval of the City. 14.0 AGREEMENT NOT TRANSFERABLE. Neither City nor Purchaser shall assign, subcontract or transfer any interest in the Agreement without the prior written consent of the other, and any purported assignment, subcontract or transfer without such consent shall be void. Any assignment, subcontract or transfer approved by City shall be subject to all terms and conditions of this Agreement. 15.0 INDEMNIFICATION. To the maximum extent permitted by law, Purchaser agrees to, at its own expense, protect, indemnify, defend with counsel acceptable to City (which acceptance will not be unreasonably withheld) and hold harmless the City and its officers, officials, employees, agents, and volunteers from and against any and all liability, loss, damage, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, civil penalties, fines,judgments, awards, costs and expenses (including, without limitation, claims expenses, reasonable attorney's fees and costs of litigation) of every nature, whether actual, alleged or threatened, arising out of or relating to the use of recycled water pursuant to this Agreement or the breach of any provision of this Agreement or the Order or the Permits by Purchaser or its directors, officers, officials, agents, employees, volunteers or others acting on Purchaser's behalf or under Purchaser's direction. Notwithstanding the foregoing, Purchaser's obligation to protect, indemnify, defend and hold harmless pursuant to this provision shall not apply to failure by the City to comply with the requirements of the Order, the Permits, or other applicable legal requirements. This provision will survive the termination of this Agreement. 16.0 METHOD AND PLACE OF GIVING NOTICE. Except as otherwise specified in this Agreement, all notices sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Party in accordance with this Section. All such notices shall be sent by: (1) personal delivery, in which case notice is effective upon delivery; (2) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (3) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or (4) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a non-business day. City: City Clerk City of Petaluma Post Office Box 61 Petaluma, California 94953 Telephone: (707)778-4360 Facsimile: (707)778-4554 And: Resolution No. 2013-037 N.C.S. Page 8 Director of Public Works and Utilities City of Petaluma 202 North McDowell Boulevard Petaluma, California 94954 Telephone: (707)778-4546 Facsimile: (707)778-4508 Purchaser: Telephone: Facsimile: Attn: 17.0 MISCELLANEOUS PROVISIONS. (A) No Waiver of Breach. The waiver by either Party of any breach of any term or promise contained in this Agreement shall not be deemed to be a waiver of such term or provision for any subsequent breach of the same or any other term or promise contained in this Agreement. (B) Uncertainty. This Agreement is the product of negotiation and compromise on the part of both Parties. The City and Purchaser agree, notwithstanding Civil Code Section 1654, that in the event of uncertainty, the language is not to be construed against the Party causing the uncertainty to exist. (C) No Third Party Beneficiaries. Nothing contained in this Agreement shall be construed to create and the Parties do not intend to create any rights in third parties. (D) Amendment. This Agreement may only be amended by a writing signed by persons authorized to bind the City and Purchaser. (E) Merger. This Agreement constitutes the entire Agreement between the City and Purchaser. 18.0 TERMINATION. Except as expressly set forth herein, should one Party breach any of the terms or conditions of this Agreement, the non-breaching party may provide written notice of such breach and the effective date of termination of this Agreement to the other Party. In addition, and notwithstanding any term or provision of this Agreement, if (i) Purchaser at any time determines that the recycled water is not suitable for irrigation or frost protection, or otherwise damages, or has the potential to damage the Property or improvements thereon (including, without limitation, any livestock operations and/ or crops), (ii) Purchaser is restricted or prohibited from using such recycled water for irrigation and/or frost protection; (Hi) Purchaser has secured an alternative non-recycled source of water for the Property; or (iv) Purchaser has transitioned to dry land agricultural practices; then in any such event, Purchaser shall have the right to terminate this Agreement, without fee, penalty or liability, upon sixty (60) days written notice to the City. 19.0 INSURANCE. Purchaser shall, prior to this Agreement taking effect and throughout the term of this Agreement, maintain and provide evidence of insurance as required pursuant to Exhibit C, which is attached and made a part of this Agreement. IN WITNESS WHEREOF, the Parties hereto have executed this document the day, month and year first above written. Resolution No.2013-037 N.C.S. Page 9 CITY OF PETALUMA PURCHASER By City Manager ATTEST: Title City Clerk Address APPROVED AS TO FORM: City State Zip City Attorney Taxpayer I.D. Number APPROVED: Petaluma Business Tax Receipt Number Director of Public Works & Utilities APPROVED: Risk Manager APPROVED: Finance Director Attachments: Exhibit A- Irrigable Land Property Description Exhibit B-California RWQCB Order 96-011 Exhibit C -Insurance Requirements Resolution No. 2013-037 N.C.S. Page 10 EXHIBIT A IRRIGABLE LAND PROPERTY DESCRIPTION (attach legal description of land to be irrigated with recycled water) Resolution No.2013-037 N.C.S. Page II