HomeMy WebLinkAboutResolutions 2011-092 N.C.S. 06/06/2011Resolution No. 2011 -092 N.C.S.
of the City of Petaluma, California
AUTHORIZING THE CITY MANAGER TO EXECUTE THE 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, General Plan Goal 8 -G -4 requires the City to manage the wastewater
collection and treatment system to address 100 percent capture and treatment of the City's
wastewater in an economically and ecologically sound manner; 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, 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 fund; 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 defray the costs of ongoing
Resolution No. 2011 -092 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 Second
Amended Memorandum of Understanding, North Bay Water Reuse Authority (NBWRA),
attached to this resolution as Exhibit A, on behalf of the City of Petaluma.
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE:
AYES:
NOES:
ABSENT:
ABSTAIN
ATTEST:
I hereby certify the foregoing Resolution was introduced and adopted by the
Council of the City of Petaluma at a Regular meeting on the 6` day of June, 2011,
by the following vote:
Albertson, Barrett, Mayor Glass, Harris, Vice Mayor Healy, Kearney, Renee
as to
A
None
None
None
aoj_k� 6)7f
City Clerk
layor
Resolution No. 2011 -092 N.C.S. Page 2
EXHIBIT A
NORTH BAY WATER REUSE AUTHORITY
SECOND AMENDED
MEMORANDUM OF UNDERSTANDING
Supersedes
Memorandum of Understanding March 15, 2005
First Amended Memorandum of Understanding September 24, 2008
Resolution No. 2011-092 N.C.S. Page 3
NBWRA Second Amended MOU
Table of Contents
September 15, 2010
Recitals ......................................................................................................... ..............................4
Memorandumof Understanding ................................................................. ..............................6
1 . Definitions ...............................................:................................................ ..............................6
MOU......................................................................................................... ..............................6
NBWRA................................................................................................... ..............................6
Boardof Directors ..................................................................................... ..............................7
Technical Advisory Committee .................................................................. ..............................7
Member Agency or "Member Agencies ................................................... ..............................7
NorthBay Region ...................................................................................... ..............................7
AdministrativeAgency .............................................................................. ..............................7
EIR/ EIS ..................................................................................................... ..............................7
US BR ....................................................................................................... ...............................
7
Phase ...................................................................................................... ..............................7
Phase2 ...................................................................................................... ..............................8
2 Purpose .................................................................................................... ..............................8
3 Objectives ................................................................................................ ..............................8
4. Establishment of NBWRA ....................................................................... ..............................8
5 NBWRA Membership ............................................................................. ..............................9
6 . Governance ............................................................................................. ..............................9
7 Board of Directors ................................................................................. ..............................9
Membership.............................................................................................. ..............................9
Voting and Authorization Requirements .................................................... ..............................9
Quorum.................................................................................................... .............................10
OpenMeetings ......................................................................................... .............................10
8. Technical Advisory Committee ........................................................... .........:...................10
Purpose.................................................................................................... .............................10
Membership............................................................................................. .............................11
Voting and Authorization Requirements .................................................. ..............................1
I
Quorum.................................................................................................... .............................11
9 . Terms of Office ..................................................................................... ...............................
l 1
10 Alternates .............................................................................................. .............................12
11 Officers of the NBWRA ....................................................................... .............................12
Chair........................................................................................................ .............................12
Vice-Chair ................................................................................................ .............................12
12 Administrative Agency ......................................................................... .............................12
13. Staff and Consultants ............................................................................ .............................14
14. Sharing of Costs and Resources ........................................................... .............................15
15. Distribution of Funds Received ............................................................ .............................18
16. Initiation of Membership ...................................................................... .............................19
17. Termination of Membership ................................................................ .............................19
Causes...................................................................................................... .............................19
Resignation by Giving Notice .................................................................. .............................20
Resolution No. 2011 -092 N.C.S. Page 4
NBWRA Second Amended MOU September 15, 2010
Nonpayment of Dues or Allocated Costs .................................................... .............................20
Effectof Termination ................................................................................ .............................20
18 Procedures ............................................................................................ .............................21
19 Meetings ................................................................................................ .............................21
20. Reports to Member Agencies ............................................................... .............................21
21 Offices ................................................................................................. ............................... 21
22 Term ..................................................................................................... .............................21
23. Disposition of Property and Surplus Funds
........................................ .............................21
24 Minutes ................................................................................................. .............................22
25 Effective Date ........................................... ............................... ......... .............................22
26 Counterparts ......................................................................................... .............................22
ExhibitA .................................................................................................... .............................25
ExhibitB ..................................................................................................... .............................26
ExhibitC .................................................................................................... .............................27
Resolution No. 2011 -092 N.C.S. Page 5
NBWRA Second Amended MOU September 15, 2010
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. This is the second
amendment of the MOU that originally established the NBWRA. This second 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. 2011 -092 N.C.S. Page 6
NBWRA Second Amended MOU September 15, 2010
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 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
Resolution No. 2011 -092 N.C.S. Page 7
NBWRA Second Amended MOU September 15, 2010
WHEREAS, 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 the projects described in Phase 1, of
the EIR/EIS.
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 that was
authorized for construction in PL 111- I l that was signed into law in March 2009. The program
can receive appropriations through the US 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.
WHEREAS, Phase 1 includes receipt of the full $25,000,000 federal authorization, and
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:
Memorandum of Understandine
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 second amended Memorandum of Understanding.
(b) "NB WRA" shall mean the unincorporated, cooperative group of public agencies organized
through this MOU and otherwise referred to as the North Bay Water Reuse Authority.
Resolution No. 2011 -092 N.C.S. Page 8
NB WRA Second Amended MOU
September 15, 2010
(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.
(f) "North Bay Region" shall mean the area depicted on the map attached hereto and
incorporated herein as Exhibit A.
(g) "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
NB WRA.
(h) "EIR/EIS" shall mean the Environmental Impact Report/Environmental Impact Statement,
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
1 .
(i) "USBR" shall mean the United States Bureau of Reclamation.
0) "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
Resolution No. 2011 -092 N.C.S. Page 9
NBWRA Second Amended MOU September 15, 2010
construction occurs and that the individual agencies are responsible for possible
modifications to the requirements of the EIR/EIS.
(k) "Phase 2" shall mean the remaining projects in the EIR/EIS Alternative 1 that are not
included in Phase 1.
2. Purpose. The purpose ofNBWRA is 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.
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 potable water 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.
Resolution No. 2011-092 N.C.S. Page 10
NBWRA Second Amended MOU
September 15, 2010
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 of the NBWRA. Each Member Agency must be a signatory to this MOU.
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 representative
from each Member Agency. Such representative shall be a member of the governing
board of the Member Agency. The Member Agency shall designate one representative
and alternate(s) each of whom shall be members of the governing board of the Member
Agency. in the event that the 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 representative on the Board of Directors
shall have one vote. Except as set forth in subsections (i) and (ii) below and as otherwise
specified herein, the affirmative vote of the majority of all the members of the Board of
Directors is required and is sufficient to approve any item.
(i) An affirmative vote of members of the Board of Directors 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
Resolution No. 2011 -092 N.C.S. Page 11
NBWRA Second Amended MOU September 15, 2010
approval of the Board of Directors.
(ii) Votes of members of the Board of Directors to approve the budget may not be
unreasonably withheld.
(iii) Approval by the governing bodies of two - thirds of all Member Agencies shall be
required to modify this MOU.
(c) Quoru m. 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. If no more than a
majority of members or alternates are present, the quorum will be able to conduct
NBWRA business only by unanimous vote unless provided otherwise herein.
(d) Open Meetings The Board of Directors will comply with the Brown Act in holding its
meetings.
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
Resolution No. 2011 -092 N.C.S. Page 12
NBWRA Second Amended MOU September 15, 2010
Technical Advisory Committee as it determines necessary to achieve the purpose and
objectives stated herein.
(b) Membership If created by the Board of Directors, 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 suitable 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.
(c) Voting and Authorization Requirements Each representative on the Technical Advisory
Committee shall have one vote. If a quorum is present, the quorum will be able to conduct
NBWRA business only by a unanimous vote unless provided otherwise herein.
(d) Quoru m. 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. If no more than a
majority of members or alternates are present, the quorum will be able to conduct
NBWRA business only by unanimous vote unless provided otherwise herein.
9. 'Perms 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. 2011 -092 N.C.S. Page 13
NBWRA Second Amended MOU
September 15, 2010
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 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 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
restrictions upon the manner of exercising power applicable to the Administrative Agency,
Resolution No. 2011 -092 N.C.S. Page 14
NBWRA Second Amended MOU
September 15, 2010
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.
(e) Prepare the reports identified in Section 20 if the Board of Directors has not designated
another party or person to complete that task.
Resolution No. 2011-092 N.C.S. Page 15
NBWRA Second Amended MOU
September 15, 2010
(0 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. 2011 -092 N.C.S. Page 16
NBWRA Second Amended MOU
U .Sharing of Costs and Resources.
September 15, 2010
(a) The Board of Directors may assess annual dues for membership in the NBWRA, not to
exceed $5,000.
(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 shall pay a portion of ongoing costs equally and the remaining costs
shall be based on approved project costs for Phase 1 of Alternative 1, as described in the
Certified ElR/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
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-
Resolution No. 2011 -092 N.C.S. Page 17
NBWRA Second Amended MOU
September 15, 2010
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 shall be afforded the opportunity to receive reimbursement for
previously allocated costs and liabilities that were not based on benefits received during
the period from the date this Second Amended MOU becomes effective back to Fiscal
Year 2005 -2006 (the "Reimbursement Period "). Reimbursements shall be equal to (i) the
actual costs paid by a Member Agency during the Reimbursement Period minus (ii) the
amount of costs that would have been 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) shall be
approved by a majority of the Board of Directors. Notwithstanding the foregoing, a
Member Agency's ability to pay and the timing of benefits received may be taken into
consideration when determining the respective allocation of costs pursuant to this
subsection (d). It is understood that said reimbursement shall occur as soon as practicable
following issuance of the Record of Decision by USBR and receipt of federal funds
pursuant to agreements with USBR.
(e) Two or more Member Agencies can agree to reallocate project costs for Phase 1 among
themselves, as long as the combined total for those agencies before and after reallocation
Resolution No. 2011 -092 N.C.S. Page 18
NBWRA Second Amended MOU
September 15, 2010
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.
(0 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 et seq. and instead agree to share liability based on
the relative fault of the parties.
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
will be developed based on the requirements of the American Recovery and
Reinvestment Act and Title XVI.
(h) Some Member Agencies may choose to pursue Phase 2 or other non -Phase 1 projects.
Should this occur, the budget will be split into Phase 1 and Phase 2 /other non -Phase 1
tasks and their appropriate costs. Costs for Phase I tasks shall be allocated and assessed
as described in Sections 14 (b) and (c), herein. Costs for Phase 2 /other non -Phase I tasks
Resolution No. 2011 -092 N.C.S. Page 19
NBWRA Second Amended MOU
September 15, 2010
shall be allocated and assessed by a method agreed upon by those Member Agencies
choosing to participate in Phase 2 /other non -Phase 1 tasks.
(i) If a Member Agency that chooses to opt out of Phase 2 /other non -Phase 1 tasks 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 shall be based on the Phase 1 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 17. 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,
Resolution No. 2011-092 N.C.S. Page 20
NBWRA Second Amended MOU
September 15, 2010
and (i) this Section shall not apply to such individual State funding and (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. 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.
17. Termination of Membership. Member Agencies that have received federal monies may not
terminate their membership in the NBWRA before the expiration of three (3) years from the
effective date of this MOU.
(a) Causes Notwithstanding the above, a Member Agency's membership in the NBWRA
and participation in this MOU shall terminate on the occurrence of any of the following:
(i) The nonpayment of dues or assessments, subject to the limitations set forth in
subsection (c) below; or
(ii) The occurrence of an event which renders an entity no longer eligible for membership
under Section 5 of this MOU, as determined by the Board of Directors.
Resolution No. 2011 -092 N.C.S. Page 21
NBWRA Second Amended MOU September 15, 2010
(iii)If a Member Agency decides to implement no Phase 1 projects and has received no
federal funds, that agency may voluntarily terminate its membership in the NBWRA
as set forth in subsection (b), below.
(b) Resignation by Giving g otice The membership of any Member Agency of the NBWRA
shall terminate after the delivery of such Member Agency's written notice of resignation to
the Chair of the Board of Directors. Such notice shall be given at least thirty (30) days
before the effective date of such resignation. Refunds of any dues or assessments upon
such resignation shall be based on a signed, negotiated agreement between the resigning
Member Agency and the Member Agencies that remain signatory to this MOU.
(c) Nonpayment of Dues or Allocated Costs The membership of any Member Agency of the
NBWRA may be terminated if the Member Agency fails to pay its dues or allocated costs
within one hundred and twenty (120) days after such dues or costs are due. Termination shall
be effective upon the majority vote of all members of the Board of Directors. Member
Agencies shall be given thirty (30) days prior written notice of a threatened termination and
the reasons thereof. The notice may be delivered in person or by first -class certified mail, fax
or e-mail to the Member Agency's representative on the Board of Directors.
(d) 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
Resolution No. 2011 -092 N.C.S. Page 22
NBWRA Second Amended MOU September 15, 2010
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.
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 three years from the effective date of this MOU, 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
Resolution No. 2011 -092 N.C.S. Page 23
NBWRA Second Amended MOU
September 15, 2010
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,
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 MOU shall become effective and the NBWRA shall be established when
at least five (5) agencies have authorized its execution.
26. Counterparts. This 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. 2011 -092 N.C.S. Page 24
NBWRA Second Amended MOU
September 15, 2010
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as set forth below.
Sonoma County Water Agency
M.
Print Name:
Napa Sanitation District
By:
Print Name:
Title:
Date:
Sonoma Valley County Sanitation
District
Print Name:
Title:
Date:
Title:
Date:
Novato Sanitary District
Print Name:
Title:
Date:
Resolution No. 2011 -092 N.C.S. Page 25
NBWRA Second Amended MOU
September 15, 2010
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as set forth below.
Las Gallinas Valley Sanitary District
Print Name:
Title:
Date:
North Marin Water District
M
Print Name:
Title:
Date:
County of Napa
LIM
Print Name:
Title:
Date:
Resolution No. 2011 -092 N.C.S. Page 26
NBWRA Second Amended MOU
Exhibit A
Resolution No. 2011 -092 N.C.S.
September 15, 2010
ExMbitA
Study Ar ®a
No* Bay Vow Rms Mhorky - AW U
Page 27
NBWRA Second Amended MOU
Exhibit B
September 15, 2010
Percentages for Ongoing NBWRA Costs
Agency
25 % Split
Federal
Percentage of
Total of
Equally
Authorization,
Remaining 75%
Percentages
Phase 1
Las Gallinas Valley
3.57%
$1,222,473
3.67%
7.24%
Sanitary District
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
3.57%
$7,967,134
23.90%
27.47%
County Sanitation
District
Sonoma County
3.57%
-
0.00%
3.57%
Water Agenc
Napa Sanitation
3/5.7%
$9,440,996
28.32%
31.89%
District
Napa County
3.57%
-
3.57%
T'OT'ALS
25.00%
$25,000,000
75.00%
100.00%
Note: 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.
Resolution No. 2011 -092 N.C.S. Page 28
NBWRA Second Amended MOU September 15, 2010
Exhibit C
Percentages for Distribution of Federal Funds Received
Agency
Federal Authorization,
Phase 1
Percentage
Las Gallinas Valley Sanitary
District
$1,222,473
4.89%
Novato Sanitary District
$1,689,893
6.72%
North Mlarin Water District
$4,689,504
18.76%
Sonoma Valley County Sanitation
District
$7,967,134
31.87%
Sonoma County Water Agency
-
-
Na a Sanitation District
$9,440,996
37.76%
Napa County
-
-
TOTALS
$25,000,000
100.00%
Note: 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.
Resolution No. 2011 -092 N.C.S. Page 29