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HomeMy WebLinkAboutResolution 2013-041 N.C.S. 5/6/2013 • Resolution No. 2013-041 N.C.S. of the City of Petaluma, California AUTHORIZING THE CITY MANAGER TO EXECUTE THE THIRD AMENDED MEMORANDUM OF UNDERSTANDING ESTABLISHING MEMBERSHIP IN THE NORTH BAY WATER REUSE AUTHORITY WHEREAS, on May 19, 2008, 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 Goal 8-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 Resolution No. 2013-041 N.C.S. Page 1 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. 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 • v d as to Council of the Ciry or Petaluma at a Regular meeting on the 6th day of May,2013, 'y m: by the Ibllowing vote: C Attorney AYES: Vice Mayor Albertson, Barrett,Mayor Glass, Harris, Healy, Miller NOES: None ABSENT: Kearney ABSTAIN: None D12,3/4.ATTEST: 4 City Clerk Mayor Resolution No. 2013-041 N.C.S. Page 2 Exhibit A 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 Resolution No. 2013-041 N.C.S. Page 3 NBWRA Third Amended MOU March 8, 2013 Table of Contents Recitals 4 Memorandum of Understanding 7 1. Definitions 7 MOU 7 NBWRA 7 Board of Directors 7 Technical Advisory Committee 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 11 Membership 11 Voting and Authorization Requirements 11 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 11. Officers of the NBWRA 14 Chair 14 Vice-Chair 14 • 12. Administrative Agency 14 13. Staff and Consultants 16 Resolution No.2013-041 N.C.S. Page 4 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 Exhibit A 28 Exhibit B 29 Exhibit C 30 Resolution No.2013-041 N.C.S. Page 5 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 no provision of this MOU should be so construed; and Resolution No. 2013-041 N.C.S. Page 6 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 and goals 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 of using common resources effectively; and WHEREAS, the parties hereto desire to be proactive on regulatory issues affecting the North Bay Region that transcend the traditional political boundaries of the parties; and WHEREAS,the parties hereto desire to inform communities and the public in the North 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 requirements may be better addressed on a regional basis, and in a collaborative mariner, 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 Resolution No.2013-041 N.C.S. Pagel NBWRA Third Amended MOU March 8, 2013 WFIEREAS, it is understood that the primary purpose of this MOU is to provide a governance structure, led by a Board 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 part of a program authorized for construction in PL 111-11 that was signed into law in March 2009. 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 Reinvestment 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: Resolution No. 2013-041 N.C.S. Page 8 NBWRA Third Amended MOU March 8,2013 Memorandum of Understanding 1. 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 voting member on the Board of Directors and Technical Advisory Committee as defined herein. (0 "North Bay Region" shall mean the four counties identified in the North San Pablo Bay watershed as defined in PL 111-1 1, Section 91 10, 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. Resolution No.2013-041 N.C.S. Page 9 NBWRA Third Amended MOU March 8, 2013 (g) "Associate Member" shall mean a local and/or 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 1 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 EIR/EIS. Phase 1 participating Member Agencies include: Las Gallinas Valley Sanitary District, Novato Sanitary District,North Mann Water District, Sonoma Valley County Sanitation District, Sonoma County Water Agency,Napa Sanitation District, and Napa County. (I) "Phase 2" shall mean the remaining projects in the EIR/EIS Alternative 1 that are not included in Phase I. Phase 2 shall also mean those potential projects described in the Final Resolution No.2013-041 N.C.S. Page 10 NBWRA Third Amended MOU March 8, 2013 Report— Phase 2 Project Definition Scoping Study Report, prepared by CDM 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 Project" 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 costs associated 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 I and Phase 2 since they benefit the entire program and not just a particular set of 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 of NBWRA is to provide recycled water for agricultural, urban, and environmental uses thereby reducing reliance on local and imported surface water and Resolution No. 2013-041 N.C.S. Page 1 I 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 local and regional ecosystems; (c) Improve local and regional water supply reliability; (d) Maintain and protect public health and safety; (e) Promote sustainable practices; (f) 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. § 300f et seq., and/or the 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 be a Member Agency or Associate Member of the NBWRA. Each Member Agency must be a signatory to this MOU. Resolution No. 2013-041 N.C.S. Page 12 NBWRA Third Amended MOU March 8, 2013 6. Governance. NBWRA 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 shall designate one representative and alternate(s) each of whom shall be members of the governing board of the Member Agency or Associate Member. In the event that a Member Agency's governing body representative and alternate(s) are unavailable for a 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 set 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 (15%) annually, without the unanimous approval of the members of the Board of Directors representing all Member Agencies. (ii) Votes to approve the budget may not be unreasonably withheld. (iii) Approval by the governing bodies of two-thirds of all Member Agencies shall be Resolution No. 2013-041 N.C.S. Page 13 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 transacting business, except that less than a quorum may vote to adjourn a meeting or to set a date for the next meeting. (d) Open Meetings. The Board of Directors will 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 without modifying this MOU by a majority vote of the Board of Directors. 8. Technical Advisory Committee (a) Purpose. The Board of Directors may create a Technical Advisory Committee as needed for the month-to-month management of budget, schedule, and scopes of work for the NBWRA. Typical duties of a Technical Advisory Committee include recommending contracting for a program manager; working through technical details of work scopes and products; authorizing the administrative agency to enter into, modify, or accept work under any contract that is consistent with the budget approved by the Board of Directors, and reviewing and 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 any time 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 Resolution No. 2013-041 N.C.S. Page 14 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. The Technical 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 or staff member is unavailable for a meeting, he or she may designate an alternate. Associate Members may appoint a non-voting representative to the Technical Advisory Committee. (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 set a 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. Resolution No. 2013-041 N.C.S. Page 15 NBWRA Third Amended MOU 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 to 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 absence 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 carrying out the provisions of this MOU. The authority delegated herein to the Administrative Agency shall be subject to the Resolution No.2013-041 N.C.S. Page 16 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 administer such contracts on behalf of the 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 authorized by the Board of Directors. The Administrative Agency will strictly account for all NBWRA funds, and will hold the funds in trust in a segregated account. (c) Provide budget analyses, warrant lists and other financial documents as required by the Board of Directors. The Administrative Agency's financial activities with regards to the NBWRA shall be subject to an outside audit at any time at the request of the Board of Directors. As a matter of course, the Administrative 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 Agency's services. Payment of these charges shall be subject to the approval of the Board of Directors. Resolution No. 2013-041 N.C.S. Page 17 NBWRA Third Amended MOU 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. (f) 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 behalf of the 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 employ or 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 of these 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 unreasonably withheld. Resolution No.2013-041 N.C.S. Page 18 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 Administrative Agency 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 activities of 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 I of Alternative I, as described in the certified EIR/EIS or as amended pursuant to Sections 14(e)and 16. The costs and liabilities will be allocated among each of the Member 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 is described in applications for federal funding that Resolution No. 2013-041 N.C.S. Page 19 NBWRA Third Amended MOU March 8, 2013 have been submitted to the USBR as of April 15, 2010 or as modified pursuant to Sections 14 (e) and 16 herein. The Sonoma County Water Agency shall pay its pro- rata share of the quarter of 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 may be modified pursuant to Sections 14 (e) and 16. (d) Member Agencies were afforded the opportunity to receive reimbursement for previously allocated Phase 1 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 "Reimbursement Period"). Reimbursements were equal to (i) the actual costs paid by a Member Agency during the Reimbursement Period minus (ii) the amount of costs that were allocated to that Member Agency during the Reimbursement Period if the percentages defined in Exhibit B had been in effect. The final 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 reimbursement for Phase 1 Costs as described in this section shall be contemplated. (e) Two or more Member Agencies can agree to reallocate project costs for Phase I among themselves, as long 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 of the Board of Directors. Such approval shall not be unreasonably withheld. Resolution No.2013-041 N.C.S. Page 20 NBWRA Third Amended MOU March 8,2013 (0 (1) In the case 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 etseg. and instead agree to 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 in this MOU shall create, impose, or give rise to any liability, obligation, or duty of the Member 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, or maintains 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 2 Costs as defined herein. Should member agencies choose to construct projects as part of Phase 2, there will be an opportunity to receive reimbursement 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 reimbursement. Resolution No..2013-041 N.C.S. Page 21 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 to 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 I 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 1 projects shall be based on the Phase I project schedule as described in applications for federal funding submitted 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 C may be modified pursuant to Sections 14 (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 Resolution No. 2013-041 N.C.S. Page 22 NBWRA Third Amended MOU March 8, 2013 (ii) the allocations set forth in this Section shall not be affected by the receipt of any State funding. (b) Should NBWRA be designated to receive federal funds for Phase 2/other non-Phase 1 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 Directors 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 shall include Marin Municipal Water District and City of Petaluma. The purpose of the initiation fee is to allow the Phase 1 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 upon completion 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 I 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 agency to this MOU pursuant to this Section 16, a new Member Agency is subject to all provisions of this MOU, including Section 17 below. Resolution No.2013-041 N.C.S. Page 23 NBWRA Third Amended MOU March 8, 2013 17. Termination of Membership. Member Agencies that participate in Phase 1 and have received federal monies 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 of this MOU as defined herein, whichever comes first. Member Agencies that participate in Phase 2 and have received federal monies for Phase 2 construction projects may not terminate their membership in the NBWRA before the completion of all Phase 2 construction projects or before the termination of this MOU as defined herein, whichever comes first. Phase 2 participants may voluntarily withdraw from the NB WRA prior to the receipt of federal monies 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 Member Agencies. (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 shall be determined in a manner consistent with the allocations set forth in Section 14. Likewise, termination shall not preclude the Member Agency from 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 funds at the termination of the NBWRA. Resolution No, 2013-041 N.C.S. Page 24 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 NBWRA.To facilitate such efforts,the NBWRA may adopt the administrative procedures and policies of a 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 describe the financial activities of the NBWRA during the preceding year. 21. Offices. For the purposes of forming 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 one location to another after providing thirty (30) days notice of such a change. The Chair shall notify each Member Agency in 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 12 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 NBWRA 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 Member Agency's contributions to such reserves. All other property, Resolution No.2013-041 N.C.S. Page 25 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 14. 24. Minutes. A secretary or clerk shall be appointed by the Board of Directors. The secretary or clerk shall cause to be kept minutes of all 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. This revision to the MOU shall become effective when two-thirds of the Member Agencies listed in Exhibit B have authorized its execution. 26.Counterparts. This revision to the MOU may be executed in counterpart and each of these executed counterparts 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. Resolution No.2013-041 N.C.S. Page 26 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 Novato Sanitary District District By: By: Print Name: Print Name: Title: Title: Date: Date: Resolution No.2013-041 N.C.S. Page 27 NIIWRA 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: Resolution No. 2013-041 N.C.S. Page 28 NBWRA Third Amended MOU March 8, 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: Resolution No. 2013-041 N.C.S. Page 29 NBWRA Third Amended MOU March 8, 2013 Exhibit A n ' ;A -. � . • • - - f V,- • �_ �� , '. . . .,— • - !- , _. _ r 1.,T _- q ..0 'City of Petaluma a }t-;'�1 idT-.,':: ❑[r'�` 4-� Cv -.i- :' • 1 ,. r S • 111 l .lam) Nf Y, Y S1 - 2...t - [-- - aL�>C T° !wary ' 3 - ,-i.. s6 • • ❑C f \l.. fv-T T.f, - fT'7` " C S f - . • -�� ��.__.-'--n �I::I� - - Resolution No. 2013-041 N.C.S. Page 30 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 1 Las Gallinas Valley 3.57% 3.67% 7.24% Sanitary District $1,222,473 3.67/0 7.24/0 Novato Sanitary 3.57% $1,679,893 5.04% 8.61% District North Marin Water 3.57% 4,689,504 14.07% 17.64% District Sonoma Valley County Sanitation 3.57% $7,967,134 23.90% 27.47% District Sonoma County 3.57% $0.00 0.00% 3.57% Water Agency Napa Sanitation 3.57% $9,440,996 28.32% 31.89% District Napa County 3.57% $0.00 0.00% 3.57% Marin Municipal 0.00% $0.00 0.00% 0.00% Water District City of Petaluma 0.00% $0.00 0.00% 0.00% • TOTALS 25.00% $25,000,000 75.00% 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 I. or continuation beyond Phase 1, subject to the approval of the parties. 2. The above schedule only includes costs and percentages related 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. Resolution No. 2013-041 N.C.S. Page 31 NBWRA Third Amended MOU 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 Water District $0.00 0.00% City of Petaluma $0.00 0.00% TOTALS $25,000,000 100.00% Notes: 1. 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 I, subject to the approval of the parties. 2. The above schedule only includes costs and percentages related 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. Resolution No,2013-041 N.C.S. Page 32