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HomeMy WebLinkAboutResolution 2010-081 N.C.S. 06/07/2010Resolution No. 2010-081 N.C.S. of the City of Petaluma, California AUTHORIZING THE CITY 1VIANAGER TO EXEC>(1TE AGREEIVIEN'I'S ..FOR USE OF RECYCLED WATER WHEREAS, the Regional Water Quality Control Board prohibits the City from discharging treated effluent into the Petaluma River from May 1 to October 20; and, WHEREAS, the application of recycled water and maintenance of the system is included in the Department of Water Resources and Conservation Fiscal Year 2009 - 2010 Operations and Maintenance Budget and in the Fiscal Year 2010 -101.1 draft Operations and Maintenance Budget; and, WHEREAS, the program involves the application of approximately 386 million gallons (1,185 acre-feet) of secondary recycled water from the City's oxidation ponds at 4400 Lakeville Highway to six ranches northeast of the ponds; and, WHEREAS, it is estimated that the annual amount of water not discharged to the Petaluma River but instead recycled is 48% of all wastewater generated from the City; and, WHEREAS, agricultural reuse of recycled water made possible by the recycled water use agreements will support compliance with the requirements of the Regional Water Quality Control Board. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma that. the City Manager is authorized and directed to execute Agreements for Use of Recycled Water-with agricultural users, in a form substantially similar to the form agreement in Exhibit A attached hereto, subject to the review and approval of the City Attorney. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: 1 hereby certify the foregoing Resolution was introduced and adopted by the Ap Council of the City of Petaluma at a Regular meeting on the 7`h day of June, 2010, by the following vote: AYES: Barrett, Vice Mayor Glass, Harris, Healy, Rabbitt, Renc`e, Mayor Torliatt NOES: None ABSENT: None ABSTAIN: No ne ' I v ATTEST: City Clerk City Resolution No. 2010-081 N.C.S. Page 1 EX~IIBI'I' A AGREEMENT FOR USE OF RECYCLED WATER THIS AGREEMENT ("Agreement") is made this day of , 20 ,between the City of Petaluma, a California municipal corporation and charter city ("City"), and ("User"). WITNESSETH WHEREAS, the City owns and operates a wastewater treatment facility that generates secondary recycled water ("Recycled Water"); and WHEREAS, User owns, operates and maintains certain land ("Property") further described in "Map of Private Property Irrigated with Recycled Water" which is attached to and made a part of this Agreement as Exhibit D that User desires to irrigate with Recycled Water provided by the City; NOW, THEREFORE, in consideration of the mutual agreements herein contained and subject to the terms and conditions stated herein, the parties hereto agree as follows: DEFINITIONS Board means the California Regional Water Quality Control Board, San Francisco Bay Region. Check Dams means dams located on User's Property and designed to prevent Recycled Water runoff from leaving User's property during the Irrigation Season. Engineer means the City of Petaluma's Director of Water Resources & Conservation or designee. Hydrant means control valve and metering station located on User's Property. Irrigation Season means the period during which Recycled Water is provided to the User by the City pursuant to this Agreement, typically from May 1 through October 20. Irrigated Land means the area(s) of the Property that are designated by User to be irrigated with Recycled Water in accordance with this Agreement. Permit means all of the following (a) the National Pollutant Discharge Elimination System (NPDES) permit, or successor permit, establishing requirements for the discharge of treated wastewater into the Petaluma River, (b) the General Water Reuse Order No. 96- 01 1, or successor permit, establishing requirements for reuse of Recycled Water, as may Resolution No. 2010-081 N.C.S. Page 2 be issued, modified or reissued by the California Regional Water Quality Control Board or successor governmental entity. AGREEMENT TO USE RECYCLED WATER User agrees to use Recycled Water provided by the City in accordance with this Agreement, including the "Specifications For Use of Recycled Water" ("Specifications") which is attached to and made a part of this Agreement as Exhibit A and the General Water Reuse Order No. 96-O1 1 which is attached to and made part of the Agreement as Exhibit B. III. TERM This Agreement shall become effective and use of Recycled Water under this Agreement shall commence on May 1, 2010, and expire on February 1, 2013, unless this Agreement is terminated sooner in accordance with its terms. User and City also agree that, upon the mutual agreement of User and City, this Agreement may be extended by whole years up to a maximum of two (2) additional years or through February 1, 2015. If extended in accordance with this provision, all terms and conditions of the Agreement shall remain in effect for the entire extended term. It is not expected that this Agreement will be extended beyond the current expiration date of February 1, 2013, unless as a result of delays in the implementation of the City's urban water recycling program. Any such extension will be based in part on City's determination, in its sole discretion, that a sufficient supply of Recycled Water is available to serve User and other users, including users under the City's urban water recycling program, and other agricultural users. City shall notify User in writing by January 1, 2013, if City intends to agree to an extension of the Agreement. IV. COMPENSATION (A) Water Rates. As consideration for use of Recycled Water in accordance with this Agreement, City shall pay User at the following rate: $ per acre-foot of Recycled Water used. Payment for water use shall be based on Hydrant meter readings. The conversion from million gallons to acre-feet shall be: 1 million gallons = 3.07 acre-feet. No payment shall be made for Recycled Water used in excess of the maximum allocation for each Irrigation Season, unless said use beyond the maximum allocation is made upon the written request of an authorized official of the City. If such a request is made by the City, the City will pay $ per acre-foot of Recycled Water used in excess of the .maximum allocation during any Irrigation Season. The rates specified in this provision are not subject to annual or other adjustment. (B) Irrigation Eaui~ment Reimbursement. City shall reimburse User a maximum of $7,950 per year for On-Ranch Facility Modifications in accordance with Section 8 of Exhibit A. Reimbursement shall be for User's cost and shall not include markup, overhead, profit, labor or any other additional costs; except that contract labor costs for Resolution No. 2010-081 N.C.S. Page 3 irrigation equipment repair is reimbursable in accordance with Section 8 of Exhibit A. The City reserves the right to inspect improvements to irrigation equipment prior to payment. User will be solely responsible for any expenses for replacement or repair of irrigation equipment in excess of those specified in this provision that are eligible for reimbursement. In order for User to receive reimbursement for irrigation equipment hereunder, irrigation equipment shall be used by User in a manner consistent with standard irrigation practices and all applicable laws, rules and regulations. (C) Invoice. User shall invoice City on a monthly basis at the end of the month for which Recycled Water is used. Invoice shall be sent in accordance with provision XVII, "Notices." City shall endeavor to make payment of said invoice within thirty (30) days of receipt. To be eligible for payment invoice shall include the following information: (1) Address. Address of property irrigated. (2) Acreage. Amount of land irrigated with Recycled Water during the month. (3) Amount. Amount of Recycled Water used during the month, including totalizer hydrant meter readings at the start and at the end of the month. (4) Maintenance. Receipts for all equipment purchased or repairs made for On-Ranch Facility Modification in accordance with Section 8 of the Specifications. (5) Monthly Self-Monitoring Report. The signed original Monthly Self-Monitoring Report shall be submitted with monthly invoices. V. IRRIGATION EQUIPMENT MAINTENANCE AND REPAIR (A) User Responsibilities. Irrigation equipment downstream of hydrant located on User's Property is solely owned by User. Irrigation equipment downstream of hydrant located on User's property shall be replaced and repaired as necessary by User and at User's discretion. (B) City Responsibilities. The City shall not repair or replace above ground or buried irrigation equipment that is on User's Property and located downstream of hydrant. The City shall maintain and repair hydrants and associated appurtenances on hydrant, and irrigation equipment upstream of hydrant. VI. RECYCLED WATER ALLOCATION AND IRRIGATION RATE (A) Minimum Allocation. User agrees to accept and apply a minimum allocation of 83 acre-feet of Recycled Water for each Irrigation Season. The City has no obligation to provide User Recycled Water in excess of the minimum allocation specified in this provision. However, the City, in its sole discretion, is free to provide, and User agrees to accept and apply in accordance with this Agreement, up to, but not exceeding, the maximum allocation specified below. Resolution No. 2010-081 N.C.S. Page 4 Maximum Allocation. Although the City is not obligated to provide User Recycled Water in excess of the Minimum Allocation specified in provision VI(A), above, the City may, in its sole discretion provide User additional Recycled Water in excess of the minimum allocation specified in provision VI(A)., above, up to a maximum annual allocation of 1 13 acre-feet during any Irrigation Season. (B) Maximum Irrigation Rate. The maximum rate of irrigation with Recycled Water pursuant to this Agreement shall be 490 gallons per minute. User agrees to irrigate at or below the maximum irrigation rate specified in this provision. VII. PERMISSION TO ENTER User hereby grants City, acting through its duly authorized employees, agents, representatives, or contractors, reasonable access to User's property to do any necessary work associated with this Agreement, including, but not limited to, meter reading, monitoring of Recycled Water use by User, repair of City owned equipment, or any other monitoring of Recycled Water related activity on the Property. When entering User's property, City shall use reasonable efforts to avoid interfering with User's other operations and use on the Property. VIII. HYDRANT LOCKOUT User acknowledges that City will visually monitor User's use of Recycled Water. If the City determines that Recycled Water is not being used by User in accordance with this Agreement, User understands and agrees that City reserves the right to immediately lockout User's hydrant and discontinue providing Recycled Water to User, notwithstanding any allocation of Recycled Water to which User may otherwise be entitled pursuant to this Agreement. Following any such lockout and/or cessation of delivery of Recycled Water pursuant to this provision, any resumption in delivery of Recycled Water to User shall be at the sole discretion of the City and may be subject to terms, conditions and/or assurances in addition to those contained in this agreement. IX. AMENDMENTS This document expresses the entire Agreement between City and User and supersedes any previous or contemporaneous communications, .representations or agreements. This Agreement may be modified only by written amendment signed by both parties and failure on the part of either party to enforce any provision of the Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or provisions. Resolution No. 2010-081 N.C.S. Page 5 X. ASSIGNMENT Neither City nor User shall assign, subcontract or transfer any interest in this Agreement without the prior written consent of the other, and any purported assignment, subcontract or transfer without such consent shall be void. Any assignment, subcontract or transfer approved by City shall be subject to all terms and conditions of this Agreement. User understands and agrees that the rights and obligations of User under this Agreement are personal to User, and that sale or other transfer of the Property will not constitute an assignment, subcontract or transfer of this Agreement or any rights or obligations hereunder. Absent approval to assign, subcontract or transfer this Agreement or rights or obligations hereunder in accordance with this provision, this Agreement will terminate upon any sale or other transfer of the Property. XI. EXHIBITS The following Exhibits are attached to and made a part of this Agreement: Exhibit A City of Petaluma Specifications For Use of Recycled Water Exhibit B Order No. 96-O1 1 General Water Reuse Order of the California Regional Water Quality Control Board, San Francisco Bay Region Exhibit C City of Petaluma Insurance Requirements Exhibit D Map of Private Property Irrigated with Recycled Water (note: areas marked in yellow may not be irrigated with Recycled Water) XII. REMEDIES User understands and agrees that City is legally required to dispose of Recycled Water on land and is not permitted to discharge Recycled Water into the Petaluma River during certain times of the year. The City is relying on User's compliance in accepting and using Recycled Water for irrigation in accordance with this Agreement. The City and User understand and agree that if User fails to comply wifh this Agreement and accept and irrigate with Recycled Water in accordance with the terms and conditions of this Agreement, that City will suffer irreparable harm and will not be adequately compensated by money damages for such non-compliance, and that in addition to any other remedies that may be available at law or equity, the City may enjoin such non-compliance by seeking and obtaining an order compelling specific performance of this Agreement together with such other relief as may be allowed. XIII. INSURANCE Prior to this Agreement becoming effective, User shall obtain and provide to the City acceptable proof of insurance required as shown in Exhibit C. Resolution No. 2010-081 N.C.S. Page 6 XIV. CONTRACT TERMINATION Notwithstanding any other provision set forth herein, City may terminate or suspend this Agreement immediately for cause. Cause for immediate termination or suspension shall include, but not be limited to, any non-compliance with this Agreement by User, including, without limitation, non-compliance with the Specifications in Exhibit A or with the General Water Reuse Order No. 96-O1 l in Exhibit B or with any of User's covenants, representations or guarantees herein. Upon notice of termination or suspension pursuant to this provision XIV, City may lockout User's Hydrant and User shall immediately stop all irrigation with Recycled Water which is in progress under this Agreement. XV. STANDARD OF CARE, INDEMNITY This Agreement is not intended to affect the legal liability of either of the parties by imposing any standard of care other than the standard of care that applies bylaw. Neither of the parties nor any representative, official, officer, employee, agent or volunteer of a party is responsible for any damage or liability that results from anything the other party or official, officer, employee, agent or volunteer of that other party does or fails to do concerning this Agreement. In accordance with California Government Code Section 895.4, the City and the User each agree to indemnify, defend and hold harmless the other party and their officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including, but not limited to, all reasonable attorney's fees and costs and fees of litigation and other proceedings) that result from anything such indemnifying party or its officials, officers, employees, agents or volunteers does or fails to do concerning this Agreement. XVI. FORCE MAJEURE Delay in or failure of performance by either party to this Agreement shall not constitute a default under this Agreement if such delay or failure of performance is caused by occurrences beyond the party's reasonable control, including but not limited to: acts of God or the public enemy; changes in law; act of war, rebellion, terrorism, or sabotage or damage resulting from fire, flood, explosion, accident, riot; or strike. If an occurrence beyond the control of either party causes decayed performance or failure to perform in accordance with this Agreement, the parties may agree on an equitable adjustment in the schedule for performance or an equitable adjustment iri compensation, or both. XVII. NOTICES All notices required or permitted by this Agreement, including notice of change of address, shall be in writing and give by personal delivery or sent by United States Mail, postage prepaid and addressed to the parties intended to be notified. Notice shall be deemed given as of the date Resolution No. 2010-081 N.C.S. Page 7 of delivery in person or as of the date deposited in any post office or any post office box regularly maintained by the United States Government. Notice shall be given as follows: By City: City Clerk City of Petaluma Post Office Box 61 Petaluma, CA 94953 Phone: (707) 778-4360 Fax: (707) 778-4554 .Email: cityclerk@ci.petaluma.ca.us And: Director Department of Water Resources & Conservation City of Petaluma .Post Office Box b 1 Petaluma, CA 94953 Phone: (707) 778-4546 Fax: (707) 778-4508 IN WITNESS WHEREOF, the parties hereto have executed fhis document the day, month and year first above written. CITY OF PETALUMA USER City Manager ATTEST: User: (Name) (Address) (City, State, Zip Code) Print Name City Clerk Address Resolution No. 2010-081 N.C.S. Page 8 APPROVED AS TO FORM: City State Zip City Attorney Taxpayer I.D. Number Petaluma Business Tax Certificate Number COMPLETED AND APPROVED: Interim Director of Water Resources & Conservation APPROVED: Risk Manager APPROVED: Interim Finance Director Resolution No. 2010-081 N.C.S. Page 9