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HomeMy WebLinkAboutStaff Report 5.A 05/06/2013 • Al tacvIteww#5 . 1 4SP'L'U.4 • 4853 DATE: May 6, 2013 , TO: I-tonorablea a or', d`Membersof the City Council through City Manager FROM Dan . J h9 Iirector, Public'Works•and Utilities Dave :..rue, 'atet Conservation Coordinator SUBJECT: Resolution Approving the North Bay W,ater Reuse Authority Third Amended Memorandum of Understanding, Designation,of Council Representative to Same and Authorizing:City Manager lb Execute.Agreement. RECOMMENDATION It is recommended that the;City Council adopt the attached Resolution Authorizing the City Manager to execute the.North Bay Water Reuse Authority (NBWRA) Third Amended Memorandum of Understanding. BACKGROUND , The NBWRA was created in 2005 for the purpose of coordinating interagency efforts to address the potential use of recycled Water'ona.regional basis. Membership in NBWRA is secured through a Memorandum of Understanding (MO,U). The City of Petaluma was,authorized to execute the NBWRA MOU`on.June 6, 2011 per Resolution 2011-092. The MOU project scope consists of Phase I and Phase II: Phase I focusing mainly on groundwater projects for other agencies and Phase II focusing on recycled water projects more aligned with City Council goals. With Council approval, the'City of Petaluma will be part of Phase 11, which is the Third Amended MOU, and will utilize any funding that results from this partnership for its recycled water expansion,program.,The City's most pressing goals are to increase tertiary recycled water distribution further,into City limits, create recycled water storage, and increase the tertiary treatment capacity.'to meet the overall plant design capacity of 8.0 mgd. • The stated purpose,of the NBWRA.is to secure federal funding on a regional basis to provide recycled water for'agricultural,urban, and environmental uses thereby reducing reliance on local and imported surface water and groundwater supplies and reducing the amount of treated effluent released•to San Pablo Bay and its tributaries. Current members-consist of Sonoma County Water-Agency,:Sonoma Valley County3Sanitation District,'Napa Sanitation District, Napa County, North Mann Water District, Novato Sanitary District, Las Gallinas Valley Sanitary District, Marin Municipal Water District and the'City of Petaluma. Agenda Re�e3: City Attorn- ' w• Finance Direct. , City Manager I DISCUSSION The NBWRA Phase I implementation(2005-2010) included;the Feasibility Analysis and completion of the EIRIEIS for seven projects: Hamilton Field/Novato South (Las Gallinas and North:Marin), Novato North (Novato SD and North Marin), Novato Central (Novato and North Marin), Sonoma Valley Recycled and Napa Sonoma Salt Marsh:Pipeline (Sonoma Valley), and, MST and Napa State:HospitalPipeline (Napa). "fhe NBWRA received a congressional appropriation and is moving,forward to Phase II of theNIOU scope including project definitions leading to feasibility studies=andEIR/EIS preparation: As a member, the City of Petaluma would be able to add its Recycle-Water Expansion Program improvements to the list. Phase 2 projects must be found consistent with Phase:I objectives, which are: • Offset urban and agricultural demands on potable water supplies; • Enhance local and regional ecosystems; • Improve local and regional water supply reliability; • Maintain and protect public health and safety; • Promote sustainablepractices; • Give top priority to local needs for recycled water; and • Implement recycled water facilities in an economically-viable manner. Following the adoption of the General Plan in 2008 and the certification of the Recycled Water Environmental Impact Report, the.Public Works and Utilities Department has pursued site acquisition, design and engineering,,and funding sources for the next phases.of the recycled water expansion projects. In order to,move forward with the appropriation process,joining forces with other agencies to engage collectively in funding:opportunities has distinct advantages. To optimize current capital funds, the:Public Works and UtilitiesDepartment continues to seek additional State and Federal funding sources. Membership in the NBWRA further diversifies funding opportunities with regard.to City recycled water projects-through special programs and matching grants offered by the Federal government. This will aid in implementing the General Plan objectives and City Council goals-for the use of our recycled water assets in the most cost- effective manner. The NBWRA Third Amended MOU inCludes the following modifications: • Adding a non-voting associate membership • Adding the WaterSmart Grant program as a potential federal funding source; • Incorporating new members, including Petaluma, for Phase 2 • Clarifying votingp'i-ocedures • Specifically identifying Phase I and Phase 2 participants • Adding new definitions to reflect current budget and cost sharing practices • Clarifying.initiationof membership, including the initiation fee calculation methodology • Clarifying termination of membership • Extending thetterm ofthe MOU from three to five years 2 The proposed action meets Council goal: "Cost Effective Use-of Recycled Water assets." FINANCIAL.IMPACTS The Cityshare"of the Phase.2 Project Definition Study;costs, as members of the Authority, will be $56,265. This amount represents.the Phase II consultant fees and a joint use fee. The consulting fee of$208,355 for scoping studies, support and workshops is divided equally amongst seven member agencies;resulting in acost of$29,765 each'. The Joint Use fees of $477,000 is divided amongst the member agencies with Petaluma paying:a smaller percentage due to non-participation in Phase I ($60,571 each for.seven Phase Iparticipants and $26,500 for Petaluma and MMWD). Joint Use fees are budgeted in the Water Enterprisefund and include the fol lowing: • Program Mana'geinent • Federal Authorizations and-Appropriations • State Funding/State Outreach • Outreach and Community Support • SCWA Administration . Annual dues are $5,000 (Section 14 of MOU). The MOU references an "initiation fee"(Section 16), which has been identified as 0.6% of the new member agency project costs as determined upon completion of the Phase IYScoping Study. Staff time to,attend the meetings and participate in workshops is not expected„to.ekceed $2,000 annually..Staff tinie to work on local project specific efforts will be dependent upon future Council direction on project selection and prioritization. The City will fund the annual costs, through the capital improvement funds budgeted for the projects proposed for funding ihrough`the Authority. ATTACHMENTS 1. Resolution 2. Third Amended Memorandum.of Understanding 3 Attachment 1 RESOLUTION AUTHORIZING THE:CITY MANAGER TO`EXECUTE THE'THIRD AMENDED MEMORANDUM'OF UNDERSTANDING ESTABLISHINGMEMBERSHIP IN THE NORTH BAY WATER REUSE AUTHORITY WHEREAS, on May 19, 20081 the City Council adopted Resolution No. 2008-085 N.C.S. Adopting the City of Petaluma General Plan 2025 ("General Plan"),including its Technical Appendix C, a Water Demand and Supply Analysis Report (2006); and WHEREAS, the General Plan and its Water Demand and Supply Analysis Report identify recycled water as an essential source of water supply to meet potable water demand in the City through 2025; and WHEREAS, General Plan'Goal8-G-3 requires the City to maximize the use of recycled water as a potable water offset to manage water demands and to-meet.regulatory requirements for wastewater discharge; and • WHEREAS, the North Bay Water Reuse Authority has been formed by various North Bay Area public agencies to coordinate efforts to seek federal funding for recycled water projects pursuant to Public Law 10; and WHEREAS, on June 6, 2011, the City Council adopted Resolution No. 2011-092 N.C.S authorizing the City Manager to Execute the Memorandum of Understanding Establishing Membership in the North Bay Water Reuse Authority; and WHEREAS, the City of Petaluma has;ongoing and planned projects and programs to expand its treatment and use of recycled water,;including but not limited to the Water Recycling Facility and River Access Improvements Project and the Water Recycling Expansion Project which could benefit from federal funding;and WHEREAS, membership in and cooperation with the North:Bay'Water Reuse Authority may improve the City's access to federal grant funds to partially defer the costs of ongoing and/or planned recycled water projects. NOW, THEREFORE, BE.IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PETALUMA that the City Manager is authorized and directed to execute the North Bay Water Reuse Authority (NBWRA) Third Amended Memorandum of Understanding, attached to this Resolution as Exhibit A, on behalf of the City of Petaluma and direct the Department Director to make payment of the Phase'2 Project Definition Costs'assigned to Petaluma. 4 • Attachment 2 NORTH BAY WATER REUSE.AUTHORITY THIRD AMENDED MEMORANDUM OF UNDERSTANDING Supersedes Memorandum of Understanding March 15, 2005 First Amended Memorandum of Understanding September 24, 2008 Second Amended Memorandum of Understanding November 3, 2010 • NBWRA Third Amended MOU March 8, 2013 Table of Contents Recitals 4 Memorandum of Understanding 7 I. 1Definitions - 7 MOU 7 NBWRA 7 Board of Directors 7 Technical Advisory,Cornmittee 7 Member Agency or Member Agencies 7 North Bay Region - 7 Associate Member 8 Administrative Agency 8 EIR/EIS 8 USBR 8 Phase 1 • 8 Phase 2 8 Construction Project 9 Phase 1 Costs 9 Phase 2 Costs - 9 Joint Use Costs 9 2. Purpose 9 3. Objectives 10 4. Establishment of NBWRA 10 5. NBWRA Membership • 10 6. Governance 11 7. Board of Directors , Membership 11 Voting and Authorization Requirements II Quorum 12 Open Meetings 12 Adding Associate Members 12 8. Technical Advisory Committee 12 Purpose 12 Membership 13 Voting and Authorization Requirements 13 Quorum 13 9. Terms of Office 13 10. Alternates 14 . II. Officers of the NBWRA 14 Chair 14 Vice-Chair 14 • 12. Adininistrative Agency 14 13. Staff and Consultants 16 2 NBWRA Third Amended.MOU March 8, 2013 14. Sharing of Costs and Resources 17 15. Distribution of Funds Received 20 16. Initiation of Membership 21 17. Termination of Membership 22 Effect of Termination 22 18. Procedures 23 19. Meetings 23 20. Reports to Member-Agencies 23 21. Offices 23 22. Term 23 23. Disposition of Property and Surplus Funds 23 24. Minutes 24 25. Effective Date 24 26. Counterparts 24 ExhibitA.. 28 Exhibit B 29 Exhibit C 30 • 3 ' I NBWRA Third.Amended MOU March 8, 2013 MEMORANDUM OF UNDERSTANDING ESTABLISHING THE NORTH BAY WATER REUSE AUTHORITY This Memorandum of Understanding ("MOU")establishes the North Bay Water Reuse Authority("NBWRA") for the purposes described herein. This MOU is made and entered into by and between the parties that are signatories to this MOU. The MOU was first approved March 15, 2005. The first amendment to the MOU was approved September 24, 2008.The second amendment to the MOU was approved November 3, 2010. This is the third amendment of the MOU that originally established the NBWRA.•This third amendment to the MOU supersedes all previous versions of the'MOU. Recitals WHEREAS, each of the parties to this MOU is a local government entity functioning within the North Bay Region, as depicted in Exhibit A attached hereto and incorporated by reference; and WHEREAS. the parties.desire to enter into an MOU to explore the feasibility of coordinating interagency`efforts to expand the beneficial use of recycled water in the North Bay Region thereby promoting the conservation of limited surface water and groundwater resources; and WHEREAS, the parties do not intend to create a separate public agency pursuant to Government Code §6500 et seq. through this MOU and`noprovision of this MOU should be so construed; and 4 NBWRA Third Amended MOU March 8, 2013 WHEREAS, the parties hereto may later explore the feasibility of changing their organizational structure by establishing a Joint Powers Authority in a:separate agreement that. would advance the purpose andsgoals of the NBWRA, if construction projects are to be undertaken jointly or if such changes are necessary in order to receive€federal.or state funds; and WHEREAS, the parties hereto recognize the value ofusing common resources effectively; and WHEREAS, the parties hereto desire to'be proactive on regulatory issues affecting the North Bay Region that transcend the traditionahpolitical boundaries of the parties; and WHEREAS, the'parties hereto desire to inform communities,and the public in the North • v Bay Region about the importance of water conservation and the benefits of water reuse; and WHEREAS, the parties hereto wish to coordinate their consideration and review of local, state and federal policies and programs related to the expansion of existing recycled water programs and the development of new recycled water programs in the North Bay Region; and WHEREAS, the parties hereto find that promoting the stewardship of water resources in the North Bay Region is in the public interest and for the common benefit of all within the North Bay Region; and WHEREAS, the parties recognize that there are current and future regulatory requirements which apply to water resources in:the North:Bay Region affecting one or more of said parties, and that these multiple regulatory requirementsmaythe better addressed on a regionalbasis, and in a collaborative'manner ;and the parties wish to investigate more effective ways to share information and coordinate:efforts'to comply with said regulatory requirements; and WHEREAS, the parties intend that participation in this MOU be entirely voluntary; and 5 N13W12A Third Amended iMOU March 8, 2013 . WHEREAS, it is understood that the primary purpose of this MOU is to provide a governance structure, led by aBoard of Directors consisting of members of the governing boards from the Member Agencies, for the successful completion of recycled water projects in the North Bay Region. WHEREAS, the parties previously applied for federal funds to assist them with implementing their projects; and• • WHEREAS, the parties did receive funding, which is partofa program authorized for construction in PL I I l-I I that was signed into law in March 20091 The program can receive appropriations through the United.States Bureau of Reclamation's Title XVI program which can. include funds from the American Recovery and.Reinvetment Act of 2009 and the U.S. Department of Interior, Bureau;of Reclamation's Title XVI Program, including the WaterSMART Grant Program. WHEREAS, Phase I includes receipt of the full $25,000;000 federal authorization, and WHEREAS, the parties are currently conducting Scoping Studies for potential additional projects that are,known as Phase 2. The magnitude of Phase-2 projects has not yet been determined, but would be determined by a Feasibility Study should the parties choose to conduct one The results of a Feasibility Study may lead•to additional modifications of this MOU. WHEREAS,:the parties understand that reallocation of costs described herein, can be made with!'the;approval of the parties as provided herein. 'NOW, THEREFORE; the parties hereto do hereby enter into this Memorandum of Understanding, as follows: -- 6 NBWRA Third Amended-MOU March 8, 2013 Memorandumaof Understanding I. Definitions. As used in this MOU, the following words and phrases shall have the meanings set forth below unless the context clearly indicates otherwise. (a) "MOU" shall mean this third amended Memorandum of Understanding. (b) "NBWRA" shall mean the unincorporated, cooperative group of public agencies organized through this MOU and otherwise referred to as the North Bay Water Reuse Authority. (c) "Board of Directors" shall mean the governing body composed,of members of the governing boards of the Member Agencies established pursuant to this MOU. (d) "Technical Advisory Committee" shall mean the administrative body established at the discretion of the Board of Directors pursuant to this MOU. (e) "Member Agency- or"Member'Agencies" shall mean the local and/or regional public agencies regulated under the Clean Water Act, 33 U.S.C. § 1251 et seq., the federal Safe Drinking Water Act,.42'U.S:C. § 300f et seq., and/or the state Safe Drinking Water Act, Health & Safety Code-;§ 116275 et seq., that operate within or have jurisdiction over any area within the North Bay Region, and that are signatories to this MOU. Member Agencies are entitled to one•votingmember on the Board of Directors and Technical Advisory Committee as defined herein. (f) "North Bay Region" shall mean the tour counties identified in the North San Pablo Bay watershed as defined in PL I 1 l-1 I, Section 9110, Title XVI; 43 U.S.C.390h-34: Marin, Napa, Solano, and Sonoma. Said area is depicted on the map'attached hereto and • incorporated herein as Exhibit A. 7 • • NBWRA Third AmendediMOU March 8,2013 (g) "Associate Meiiiber" shall mean a local and/of regional public agency as described in Section 1(e)or other organizations interested in the Purpose and Objectives of NBWRA. Associate Members may not sponsor current projects'.in,Phase I or Phase 2 but may partner with Member Agencies. Associate Members are entitled to appoint one non-voting representative to the Board of Directors;and to the Technical Advisory Committee. (h) "Administrative Agency-shall mean that Member Agency authorized pursuant to Section 12 to enter into contracts and perform other administrative functions on behalf of the NBWRA. (i) "EIR/EIS" shall mean,the.Environmental Impact.Report/Environmental Impact Statement, prepared by Environmental Science Associates, that was certified and or approved by the Member Agencies during December 2009 and January 2010 and which serves as the basis of the projects to be partially funded by USBR. (j) "USBR" shall mean the United States Bureau of Reclamation. (k) "Phase I" shall mean the projects described as Phase I of Alternative I of the EIR/EIS. It is understood that minor modifications to said projects may occur as actual design and construction occurs and•that the individual agencies are responsible for possible modifications to the requirements of the_EIRJEIS. Phase 1 participating Member Agencies include: Las•Gallinas Valley Sanitary District. Novato Sanitary District, North Marin Water District:Sonoma Valley County Sanitation District, Sonoma County Water Agency, Napa Sanitation District, and Napa County. (1) "Phase 2- shall mean-the remaining projects in the EIR/EIS.Alternative l that are not included in Phase I. Phase2 shall also mean those potential projects described in the Final 8 • NBWRA Third.Amended_MOU March 8,2013 Report—Phase 2 Project Definition Scoping Study Report, prepared by Smith. It is understood that those projects may change through the completion of a Final Phase 2 Scoping Study and will not be finalized'until a full Feasibility Study is completed. Phase 2 participating Member.Agencies include: Las:Gallinas"Valley Sanitary District,Novato Sanitary District, Sonoma Valley County Sanitation District, Sonoma County Water Agency,Napa Sanitation District, Marin Municipal Water District, and City of Petaluma. (m)-Construction Projecr shall';mean a project described in.either the Phase I EIR/EIS or the Phase 2 EIR/EIS should one be completed. (n) "Phase I Costs" shall'mean.those costsfassociated with engineering and environmental analysis associated With the construction of projects described in "Phase I", above. (o) "Phase 2 Costs" shall mean those-costs+associated with efforts to conduct Scoping Studies, Workshops, Feasibility Studies; or obtaining federal funding for support of said studies for projects as described in "Phase 2", above., (p) "Joint Use Costs" shall Mean those costs that are not easily differentiated between Phase 1 and Phase:2 since;theybenefittheentire program and not:just a particular setof projects. These costs may'include'but not be limited to program management and program development costs; costs of efforts to obtain federal funding; federal authorization and appropriations; state funding and legislation; outreach and community support;,and administrative agency management and oversight in support of the program. 2. Purpose. The•purpose•ofNBWRA is to provide recycled water for agricultural, urban, and environmental-uses thereby.reducingreliance on local and imported surface water and 9 NBWRA Third Amended MOU March 8, 2013 groundwater supplies and reducing the amount of treated effluent released to San Pablo Bay and its tributaries. • 3. Objectives. NBWRA projects will promote the expanded beneficial use of recycled water in the North Bay Region to: (a) Offset urban and agricultural demands on surface water and'groundwater supplies; (b) Enhance focal and regional ecosystems; (c) Improve local and regional water supply reliability; (d) Maintain and protect public health and safety; (e) Promote sustainable practices; (I) Give top priority to,local needs for recycled water, and (g) Implement recycled water facilities in an economically viable manner. 4. Establishment of the NBWRA. There is hereby established the North Bay Water Reuse Authority ("NBWRA"). The geographic boundaries of the NBWRA shall be the North Bay Region. (See Exhibit A). The NBWRA is an unincorporated association. By entering into this MOU, the parties do not intend to form a Joint:Powers Authority pursuant to Government Code §6500 et seq. 5. NBWRA Membership. Any local and/or regional public agency regulated under the Clean Water Act,.33°U.S.C. § 1251 et seq., the federal Safe Drinking Water Act, 42 U.S.C. § 300fet seq., and/orrhe state Safe Drinking Water Act, Health & Safety Code § 116275 et seq., that operates within or has jurisdiction over any°area within the North Bay Region may a Member Agency or Associate Member of the NBWRA. Each Member Agency must be a signatory to this MOU. • • 10 NBWRA Third Amended.MOU March 8, 2013 6. Governance: NB WRA governance structure shall consist of a Board of Directors. The composition and responsibilities of the Board of Directors is detailed in Section 7. 7. Board of Directors (a) Membership. The Board of Directors of the NBWRA shall consist of one voting representative from each Member Agency and may include one non-voting representative from each Associate Member. Such representative shall be a member of the governing board of the Member Agency or Associate Member: The Member Agency or Associate Member shalldesignate one representative and alternate(s) each of whom shall be members of the governing board of the Member Agency or Member. In the event that a Member Agency's governing body representative and;alternate(s) are unavailable for particular meeting, the Member Agency's representative on the Technical Advisory Committee may serve.as an•alternate. (b) Voting and Authorization Requirements. Each Member Agency representative on the Board of Directors shall have one vote. Except as forth in subsections (i) and (iii) below and as otherwise specified:herein, the affirmative vote of a majority of the voting members of the Board of Directors is required and is sufficient to approve any item. (i) An affirmative:vote representing two-thirds of all Member Agencies shall be required to'adopt or modify the budget. The budget may not be increased by more than fifteen percent{I'5%) annually, without the,unanimous approval of the members of the Board of Directors representing all Member Agencies. (ii) Votes"tbapprove,the budget may not be unreasonably withheld. • (iii) Approval by the governing bodies of two-thirds of:all'Member Agencies shall be II NBWRA Third Amended MOU March 8, 2013 required to modify this MOU. (c) Quorum. Representatives.'or;alternates from°a majority of;the:Member Agencies shall constitute a quorum for purposes of transactingbusiness,:except that less than a quorum may vote to adjourn a"meeting or to seta date for the next'meeting. (d) Open Meetings. The Board of Directorsiwill comply with the Ralph M. Brown Act in conducting its meetings. (e) Adding Associate Members, Representatives of Associate Members may be added to the Board of Directors with6utmodifying this MOU by a majority vote of the Board of Directors. 8. Technical Advisory Committee (a) Purpose. The Board of;Direotors May create a Technical Advisory Committee as needed for the month-to-month management ofbudget, schedule, and scopes of work for the NBWRA. Typical duties of Technical Advisory Committee include recommending contracting for a program manager; working through technical details of work scopes and products; authorizing the administrative agencyto enter into, modify, or accept work under any contract that is consistent with the budget approved by the Board of Directors, and reviewing tand',recommending courses of action to the Board of Directors for their consideration. The Board,of Directors,may create or dissolve the Technical Advisory Committee.at anytime>for any purpose;and may adopt a set of rules governing the Technical Advisory Committee as it determines necessary to"achieve'the 'purpose and objectives stated herein. The Technical Advisory Committee may create subcommittees 12 • NBWRA Third'Amended,MOU March 8,.2013 for specific purposes, including, but not limited;to,.budget and financial issues, and modification of the:MOU. (b) Membership. TheTeehnieal Advisory Committee shall.consist of one representative, not from the governing body, from each Member Agency. Such representative shall be the general manager or a:designated staff member of the Member,Agency. In the event that the general manager orstaff member is-unavailable for a:meeting, he or she may designate an'alternate. Associate Members may appoint a non-voting representative to the Technical AdvisoryCoiiimittee. (c) Voting and Authorization Requirements: Each Member Agency representative on the Technical Advisory Committee shall have one vote. An affirmative vote of a majority of all voting members of.the'Technical Advisory Committee is required and sufficient to approve any item. (d) Quorum. Representatives or alternates from a majority of the Member.Agencies shall constitute a quorum for purposes of transacting business, except that less than a quorum may vote to adjourn a meeting or to seta date for the next meeting. 9. Terms of Office. Each representative on the Board of Directors shall serve for as long as he or she is a member of the''governing,board of his or her Member Agency and is designated by the Member Agency to act as:its representative: If at any time a vacancy occurs on the Board of Directors, a replacement shall be appointed by the Member Agency to fill the unexpired term of the previous representative within ninety (90) days of the date that such position becomes vacant. 13 • • NBWRA Third.Amended MO.0 March 8, 2013 10. Alternates. Alternate representatives to the Board of Directors or its Technical Advisory Committee shall be empowered to cast votes in the absence of the regular representative or, in the event of a conflict of interest preventing the regular representative from voting,to vote because of such a conflict-of interest. - 11. Officers of the NBWRA.-The Board of Directors of the NBWRA "shall elect a Chair, a Vice- Chair and such other officers annually on the first meeting of the calendar year. The Chair and Vice-Chair shall be selected from among the Member Agency representatives. The Board of Directors may choose td adopt a policy that requires the rotation of the Chair, by Member Agency, on an annual basis. The duties of the Chair,and Vice-Chair are as follows: (a) Chair. The Chair shall direct the preparation of agendas, call meetings of the Board of Directors to order and conduct other activities as deemed appropriate by the Board of Directors. Any member of the Board of-Directors may place an item on the NBWRA agenda. (b) Vice-Chair. The Vice-Chair:shall serve as the Chair in the of the regularly-elected Chair. In the event both the Chair and Vice-Chair are absent from-a meeting which would otherwise constitute a-quorum and a temporary Chair was not designated by the Chair at the last:regular meeting,any voting Board member may call the meeting to order, and a temporary chair may be=elected by majority vote'to serve until the Chair or Vice-Chair is. present. - 12. Administrative Agency.The Member Agencies hereby designate the Sonoma County Water Agency.to.act-as the Administrative Agency for the purpose of carryi'ng out-the provisions of this MOU: The authority delegated herein to the Administrative Agency shall be subject to the 14 • NBWRA Third Amended-MOU March 8, 2013 restrictions+upon the manner of exercising power applicable to the Administrative Agency, including but not limited to the purchasing ordinances and purchasing procedures of the Administrative Agency. Within these limits, the Board of Directors may direct the Administrative Agency's;actions with respect to this MOU. The Administrative Agency, for the benefit of the NBWRA Members, shall: (a) Award,execute in its own name, and adininister such contracts:on behalf ofthe NBWRA, as may be authorized as set'forth in Sections 7 and 8. (b) Through its controller and treasurer, act as the financial officer or functional equivalent and be the depositor and have custody of all money of the NBWRA from whatever source. The Administrative Agency=shall draw warrants to pay demands for expenditures authorized by the Board of Directors or'by its authorized representative pursuant to any delegation of authority authorizedrby the Board of Directors. The Administrative Agency will strictly account for all NBWRA funds, and will hold the funds i n t r u s t in'a;'segregated account: (c) Provide budget analyses, warrant lists and other financial documents as required by the Board of Directors. The Administrative Agency'is financial activities with regards to the NBWRA shall besubjecito an outside audit at any time at the request of the Board of Directors. As'a matter of course, the Adininistrative Agency will provide a separate annual audit of NBWRA funds to the Board of Directors. (d) Determine charges to be made against the NBWRA.for the Administrative services. Payment of these charges shalllbe subject to the approval of the Board of Directors. - • 15 • NBWRA Third.Amended MOP March 8, 2013 (e) Prepare the reports identified in Section,20 if the Board of Directors has not designated another party or person to complete that task. (t) Enter into contracts with values up to $15,000 without the approval of the Board of Directors or the Technical Advisory Committee, if consistent with the budget approved by the Board of Directors. The Administrative Agency may resign its position as Administrative Agency upon 120 days written notice to all Member-Agencies, and shall, before the effective date of its resignation, transfer all funds held on behalfofthe NBWRA to any designated'successor Administrative Agency. The Board of'Directors may designate a successor Administrative Agency by majority vote. Should.no other party be designated to act as.Administrative Agency by the effective date of the resignation, the MOU shall terminate and the Administrative Agency shall distribute all property-held on behalf of the NBWRA pursuant to Section 23. 13. Staff and Consultants. Subject to the approval and Procedural provisions of Sections 7 and 12, the Administrative Agency may employor contract for any staff or consultants as may be reasonably necessary to carry out the purposes of this MOU. Such persons may include legal . counsel, administrative-executives and other types of specialists. If an employee from any Member Agency performs staff or consulting work for the NBWRA, the governing.body of that Member Agency may determine the charges to be made against the NBWRA for the . services of that employee. Payment ofthese.charges by-the Administrative Agency on behalf of the NBWRA shall:be subject to the approval of the Board of Directors, which approval shall not.be.un7easonably withheld. 16 NBWRA Third.Amended:MOU March 8, 2013 14. Sharing of Costs and'Resources. (a) The Board of Directors may assess annual dues of$5,000 for membership in the NBWRA for Associate Members.:Dues shall be used to offset Joint Use Costs for the Member Agencies. (b) The Board of Directors shall assess each Member Agency for costs■associated with paying the Administrative Agency, staff or consultants and the funding of approved projects, under agreements approved by the Technical Advisory Committee pursuant to Section 8, or the AdministrativeAgehcy-as provided in Section 12, or as authorized by the budget adopted by the Board of Directors as set forth in'Section 7. Further,legal liabilities may arise out of actions of the,Member Agencies (including the.Administrative Agency) taken pursuant to this MOU. The activitiesof the NBWRA are part of a regional program that provides benefit to all agencies..Therefore, as described more particularly below, all Member Agencies,that participate in Phase I construction projects shall pay a portion of ongoing Phase I costs'equally and the remaining Phase I costs shall be based on approved project costs for Phase 1 of Alternative I, as described in:the certified EIR/EIS or as amended pursuant to Sections I4(c) and 16. The:costs and:liabilities will be allocated among each of the Agencies as follows: (i) one quarter (25%) of costs and liabilities'shall be allocated equally among each of the Member Agencies; and (ii) three quarters (75%) of costs and liabilities shall be allocated among Member Agencies in proportion to the benefit to each Member Agency of participating in the NBWRA, in the form of federal funding that isdescribed in applications for federal funding that 17 NBWRA Third'Amended MOU March 8, 2013 have been submitted to the USBR as ofApril I5,.20I0.or as modified`pursuantto . Sections 14r(e) and, 16 herein. The Sonoma County Water Agency shall pay its pro- rata share of'the quarter or costs allocated under subsection (i) above, but shall not pay • any costs allocated under subsection (ii), as it does not have any individual projects to be funded. (c) The parties hereto agree that the criteria;set forth in subsection';(b)(ii) produce the allocations listed in:Exhibit B, attached:hereto; and incorporated by reference. The parties agree that Exhibit B maybe modified pursuant to Section _I4 (eland 16. (d) Member Agencies'wererafforded the opportunity to receive reimbursement for previously allocated Phase I Costs and.liabilities that were not based on benefits received during the period from the end of Fiscal Year 2010-2011 back to Fiscal Year 2005-2006 (the "ReimbursementPeniod"). Reimbursements were equal to (i) the actual costs paid by a Member Agency during;thetReiinbursement Period minus (fl)the amount of costs that were allocated to that Mciiiber Agency during the,ReimbursemedfPeriod if the percentages defined in Exhibit Bihad been in effect.Thefinal determination of costs and reimbursements subject to this subsection (d) was approved by a"majority of the Board of Directors on May'21, 2012.. No further or subsequent reimburse`ment for Phase I Costs as described.in;this section shall he contemplated. (e) Twoior More'Meinber Agencies can agree'to reallocate project costs for Phase I among themselves, as:Iong;as the combined total;for those agencies before and after reallocation are the same as the'combined total for those agencies in the project schedule, subject to the approval o£the,Board of Directors. Such approval shall not be unreasonably withheld. I8 NBWRA Third Amended-MOU March'8,.2013 (t) (I) In the ca"se'of non-contractual liabilities arising out of the activities of the parties under this MOU, the Member Agencies specifically repudiate the division of liability outlined in Government Code sections 895.2 etseq. and+instead agreeto share liability based on the relative fault of the parties. (2) Notwithstanding the'foregoing paragraph, each Member Agency agrees that it is solely responsible+for, and agrees to indemnify and defend the other Member Agencies from and against,:any claims; liabilities;or losses relating to or arising out of the design; construction, inspection, operation, or maintenance of its separate project. Each Member Agency agrees that nothing'inthis MOU.shall create, impose, or give rise-to any liability, obligation, or duty of theMember Agency to the other Member Agencies or to any third party with respect to the manner in which the Member Agency designs, constructs, inspects, operates,,ormaintains its separate project. • (g) A separate agreement between the Administrative Agency-and the Member Agencies has been developed based on the requirements of the American.Recovery and Reinvestment Act and Title XVI. A similar,agreement may be established for Phase 2. (h) For those agencies choosing to participate in Phase 2 as defined herein; they shall share equally in all Phase Costs as defined herein. Should member agencies choose to construct projects,as part of 2, there will be an opportunity to receive reimburseinent,for previously allocated costs and liabilities that were not based on benefits received. Said reimbursement shall be calculated in a-Manner similar to that described in Paragraph,(d); above. Expenses for Phase 2 Scoping Studies shall not be eligible for reibursement. 19 • NBWRA Third Amended MOU March 8, 2013 (i) All Member Agencies shall pay an equal share of Joint Use Costs as defined herein.. (ii) If a Member Agency that chooses td opt out of Phase.2/other non-Phase I tasks then later decides to participate, it will be subject to a buy-in fee approved by the Board of Directors. Said fee may include applicable costs plus interest from the inception of Phase 2/other non-Phase 1 tasks until such time that they decide to participate. Costs shall be based on the approved annual budget: Interest shall be based on the annual change in the Consumer Price Index - All Urban Consumers for San Francisco-Oakland-San Jose as determined by the Bureau of Labor Statistics, United States'Department of Labor. 15. Distribution of Funds Received. (a) Distribution of funds received from USBR for Phase I projects shall be based on the Phase I project schedule as described in applications for federal fundinglsubmitted to USBR as of April 15, 2010 or as modified pursuant to Sections 14 (e);and.16, herein. Those percentages are based on the,$25,000,000 federal funding authorization for projects totaling $100,000,000 and are detailed in Exhibit C, attached hereto, and incorporated by reference. The parties-agree-that Exhibit may be modified pursuant to Sections 1'4 (e) and 16. Once a Member Agency has received federal funds for a project, that Member Agency is required to remain a participant in the NBWRA and a signatory to this MOU throughout the term;of`this MOU as described in Section 22. Should State funding become available,to.the;NBWRA, its distribution shall also be as described in this Section. It is acknowledged that the Member Agencies may receive State funding from programs on an individual basis. and (i) this Section shall not apply to such individual State funding and 20 NBWRA Thin] AinendetMOU March 8, 2013 (ii)'the'allocations set forth in this Section shall^notbe affected by the receipt of any State funding. (b) Should NBWRA be designated to receive federal funds for Phase 2/other non-Phase,! tasks, this MOU will be modified accordingly. 16. Initiation of Membership: If an eligible agency as defined in Section.5 requests to join the NBWRA as a new Member Agency, the Board of Directers;shall'establish a membership initiation fee to such agency as a condition of joining the NBWRA. For the purposes of this revision of the MOU; the new Member Agencies shdll include Marin Municipal Water District and City of Petaluma: The.purpose of the initiation fee is'toiallowthe Phase I Member Agencies to recover'a portion of their investment costs in obtaining federal authorization for construction projects. The-initiation fee for each new member agency shall be equal to 0.6%of the new Member Agency-project costs as determined uponicompletion of the Phase,2 Scoping Study. The initiation fee shall be paid in a two-step process. Step one shall be a payment of $25,000 by June 30, 2013. Step two shall be,a payment of the remaining initiation fee by June 30, 2014. The collected initiation fees shall be distributed to the Phase-1 participating agencies according to the percentages specified in Exhibit B. Cost allocations as described in Exhibits B and C may be revised upon the addition of additional Member Agencies, subject to the,approval of a majority of the existing Member Agencies at that time By virtue of becoming a signatory agencyto this MOIJ pursuant to this Section 16, a new Member Agency is subject to all provisions of this MOU, including Section 17 below. 21 • NBWRA Third Amended MOU March 8, 2013 17. Termination of Membership. Member Agencies that participate in.Phase I and have received federal cronies for Phase I construction projects may not terminate their membership in the NBWRA,before'the completion of all Phase I construction projects or before the termination ofthis%MOU as defined herein, whichever comes first. Member Agencies that participate'inPhase 2 and have received federal monies for Phase 2 construction projects may not terminate their membership in the NBWRA before the completion of all Phase2 construction projects or before the termination of this MOU as defined herein, whichever comes;first. Phase 2 participants may voluntarily withdraw from the NBWRA prior to the receipt of federal.ñionies for Phase 2 construction projects. (a) Notwithstanding the above!a Member Agency may petition the Board in writing for withdrawal from the NBWRA and may.withdraw with the approval of two-thirds of the members of the Board of Directors representing MeinberAgencies. (b) Effect of Termination. All rights of a Member Agency under this MOU shall cease on the termination of such Member Agency's membership.Termination shall not relieve the Member Agency from any obligation for charges,costs or liabilities incurred or arising from acts or omissions before the date'of termination. The terminating Member Agency's responsibility for such charges,costs or liabilities shallbe determined in a manner consistent with the.allocations set forth;in.Section 14. Likewise,termination shall not preclude the Member Agency'froni;any'benefits that fully accrue before'the date of termination: However, a resigned,or-terminated:agency has no right to,.receive'a portion 'of surplus p funds atthe termination of the NBWRA. 22 NBWRA Third-Amended MOU March 8, 2013 18. Procedures. The Board of Directors may adopt bylaws,,rules of conduct for meetings and operating procedures for the'NB WRA. To facilitate such efforts, the NBWRA may adopt the administrative procedures and policies ofa Member.Agency.. 19. Meetings. The Board of Directors and the Technical Advisory Committee shall provide for meetings, as necessary., 20. Reports to Member Agencies. Each year the NBWRA shall submit a.written report to the governing body of each of the Member Agencies. This report shall describethe financial activities of the NBWRA during the preceding year. 21. Offices. For the purposes-of fonning the NBWRA and for initial operation,the principal office of the NBWRA shall be located at the Administrative Agency. The Board of Directors may change said principal office from'onelocation to another after providing,thirty (30) days notice of such a change. The Chair shall notify each Member Agencyin Writing of the change. 22. Term. This MOU shall terminate five years from its effective date, unless extended by some . ' or all of the parties. This MOU shall also be terminated if the Administrative Agency has resigned pursuant to Section i2 and no other Member Agency has been designated to act as the Administrative Agency prior to.the effective date of the resignation. 23. Disposition of Property and Surplus Funds. At-the termination of this MOU, any and all property, funds.assets, and interests therein held by the Administrative Agency on behalf of the NBW RiA shall become the property of and be:distributed to the then-Member Agencies. Money collected from Member Agencies and held in reserve by the Administrative Agency for payment of the costs of programs shall be allocated among Member Agencies in proportion to each Meniber:Agency's contributions to such reserves. All other property, 23 • NBWRA Third Amended MOU March 8, 2013 funds, assets; and interests shall be distributed by the Administrative Agency to Member Agencies in proportion to each:Member Agency's contributions to the NBWRA for dues and allocated.costs. However, liabilities of the NBWRA'in excess of those assets held by the Administrative Agency on behalf of the NBWRA at the time of termination shall be assessed against the Member Agencies and said Member Agencies shall;be responsible for such liabilities. The allocation of responsibility for the payment of such liabilities shall be determined in a manner consistent with the provisions of Section,N. 24. Minutes. A secretary or-elerk.shall be appointed by'the.Board of Directors. The secretary or clerk shall cause.to'be.kept.minutes:ofall meetings of the Board of Directors and the Technical Advisory Committee, and shall cause:a copy of the minutes to be forwarded to each Member Agency. 25. Effective Date. Thisrevision to the MOU shall become effective when two-thirds of the Member Agencies listed in Exhibit B have authorized.itsekecution. 26. Counterparts. This revision to the MOU may be executed in counterpart and each of these executed counterpart's `shall have the same force and effect as an'original instrument and as if all of the parties to the aggregate counterparts had signed the same instrument. 24 NBWRA Third Amended MOU March 8, 2013 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as set forth below. Sonoma County Water Agency Napa Sanitation District By: By: Print Name: Print Name: Title: Title: Date: Date: Sonoma Valley County Sanitation NovatoSanitary District District By: By: • Print Name: Print Name:, Title: Title: Date: Date: 25 NBWRA Third Amended MOU March 8, 2013 IN WITNESS WHEREOF,,the parties hereto have executed this Agreement as set forth below. Las Gallinas Valley Sanitary District North Marin Water District • By: By: Print Name: Print Name: Title: Title: Date: Date: County of Napa By: Print Name: Title: Date: 26 NBWRA Third Amended,MOU March S, 2013 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as set forth below. Marin Municipal Water District City of Petaluma By: By: Print Name: Print Name: Title: Title: Date: Date: 27 • NBWRA Third Amended.MQU March 8, 2013 Exhibit A T'u��y �•t ��r rr t 14 ' y - ..y` ' '•1. i' '�i 4.. 1 w> It f. r L r7: :.r •� .r r t e • -1_1/4� c= �v ' s',,I . .t.( pS rCPc3, l J , +�„�� , � '(.. ' rt .1-4k-11 r ( 1 t -4 , �1h .' ..c as `.� .rti ,F' In --�1 }-'r .` 'rv \ f { ( t:- ir" c 'i. c; ,,, tie? ti .,? T ,� .� � � },,� ,y �•• E�pPabloBa-�uershed=' ' ,{R,µ icy q �'• l j. . h 0 Y . 'Ky t; A r t - S 4 f. '�■d' x x ( ' . c '7c\\11:‘ : ‘• i''sF 5-! ( }•t 1 '/t "\--,i1',-,-5-:ayv 41.....-''..%. `` t y i_r npu o7 c :0'1LE t'-..1`,,-_-'-.-_I . ' S..�117 rR�a .o UJ� yFyl NapaCounty-?" A <�fi� C ,---- ' T"�,? ;.J -c). 4 9 . ' i I �.,,if .k ,.-fit 1 -> > , .zm.x ! 5.,. , ( r . 54t'1•p ' SIP alley County r S r x-J h r"11 '.1 �- City of Petaluma o � r t \' '. r 7 T.-L<�. District •n Napa Sanitation District Sv1_p s - .t�t 4 t...? !' :ty.(�if:�li- '' 4,Y ., 1 ttl..r (- rr (n� 17 .,4'.. 1: . 1, i - 3c re. k F .- -11 a , ',{ "Yte!'�+L X11 .v NY,r`. kr- W 1R•r-4 r 1F Si7?'. _y,weI ‘, - , - (. CiL Rz Si-,Si -�( u . ice, :::'..,..a,---.--,` — I i t er 4.1t71-:- ' -N '. .- ct-s `?�(] 17,;-!:,.. b1. >;; t . North Marin Water Dls I ' S �,'e : , -_--z - • f Fi" Novaf OO-!. 3'T . 1,.: i . ;( +r 10. “) " '0 °� anv 1::/.1.•::7-: -1P.3..--- ,•t, o' rill DlsMct t • ,. a ; ;,:Y; y r ' ?'“. - -Ba `s :-.92.--- -"i r" ' ^rr P' �-",• � 4,- q"`Vt.'''. . ._I~cc� -x' ` ..ti BemmC `���_ L. . "Lucas 7.. At.'''. J` 1.++r++-.y+ - . . 4:5, .r..to�r is WsWIlinas Valley SanitaryDistrict .t Mar u z q T .1.. .MarinMuMUpal.1 . a i. � W �' }tG �� "\i a �rr ",t �`w I,, A1=V, /. •As 'D a 7... A J ;c: >A 4 t I -. 'k�' \. It r 28 NBWRA Third Amended,MOU March 8, 2013 Exhibit B Percentages,for Ongoing Phase 1 NBWRA Costs Agency 25%„Split Federal Percentage of Total of Equally Authorization, Remaining,75% Percentages Phase d Las Gallinas Valley 0 0 Sanitary District 3.57/0 $1,222,473 3,67/0 7.24/0 Novato Sanitary o a o District 3.57/0 $1,679,893 5.04/0 8.61 /0 North Marin Water 3.57/0 4,689,504 14.07%4689504 1407 District 0 ° 17.64% Sonoma Valley County Sanitation 3.57% $7,967,134 23.90% 27.47% District Sonoma County 3.57/0 Water Agency o $0.00 0.00% 3.57% Napa Sanitation ° 0 0 District 3.57/0 $9,440,996 28:32/0 31.89/0 Napa County 3.57% $0.00 0:00% 3.57% Marin Municipal u 0 0 Water District 0.00% $0.00 0.00% 0.00% City of Petaluma 0:00% ' $0.00 0.00%. 0.00% TOTALS '25.00% $25,000,000 75.00% 100.00% Notes: 1. 1 Percentages may be revised.,pursuant to the provisions of this MOUbased on adding additional signatory members, revisionsito the projects in Phase I, or continuation beyond Phase I, subject ' to the approval of the parties. 2.. The above schedule only includes costs and percentages related to Phase I. Should member agencies choose to”implement Phase 2 projects;this schedule will be modified or a new schedule will be developed to detail,cost sharing for Phase 2. 29 • NBWRA Third Amended NIOU March 8, 2013 • Exhibit C Percentages for Distribution of Phase 1 Federal Funds Received Agency Federal Authorization, Percentage Phase 1 Las Gallinas Valley Sanitary $1,222,473' 4.89% District Novato Sanitary.District $1,689;893 6.72% North Marin Water District $4,689,504 18.76% Sonoma'Valley County Sanitation $7.967,134 • 31.87% District Sonoma County.Water Agency $0.00 . 0.00% Napa Sanitation:District $9,440;996 37.76% Napa County $0.00 0.00% Marin Municipal W ater District $0.00 0,00% City of Petaluma $0.00 0.00% TOTALS $25;00000 100.00% Notes: I. Percentages may be revised pursuant to the provisions of this;MOU based on adding additional signatory members,.revisions to the projects in Phase 1, or continuation beyond Phase 1, subject to the approval of the parties, 2. The above schedule only includes cost's and percentagesTelated to Phase 1. Should member agencies choose to implement Phase 2 projects this schedule will be modified or a new schedule will be developed to detail cost sharing for Phase 2. 30