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HomeMy WebLinkAboutResolution 2007-040 N.C.S. 03/05/2007 Resolution No. 2007-040 N.C.S. of the City of Petaluma, California A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA .ADOPTING A STANDARD SUBMETERING AGREEMENT WHEREAS, utilities typically bill multi-family customers for water and wastewater service through one master meter; and, WHEREAS,. individual water users in common interest developments are typically charged for water and wastewater service as part of their maintenance and/or assessment charges through homeowners' associations and/or property management; and, WHEREAS, this approach provides no incentive for individual users to save water; and, WHEREAS, submetering is the preferred method for billing individual users for water use since it involves billing for actual consumption via metering; and, WHEREAS, submetering has been demonstrated to provide 15% water savings; and, WHEREAS, Section 15.12.050 of the Petaluma Municipal Code prohibits the resale of water except by special agreement with the City; and, WHEREAS, City Management has developed a standard agreement for the resale of water using submetering; and, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS: 1. The above recitals are true and correct and hereby declared to be findings of the City Council of the City of Petaluma. 2. The standard submetering agreement provided in Exhibit A to this resolution is hereby approved. 3. The City Manager is hereby authorized from time to time to amend and update the standard submetering agreement as necessary to conform with changing conditions, new legislation and other factors, subject to the review and approval of the City Attorney. 4. This Resolution shall become effective immediately. 5. All portions of this Resolution are severable. Should any individual component of this Resolution be adjudged to be invalid and unenforceable by a body of competent jurisdiction, then the remaining Resolution portions shall be and continue in full force and effect, except as to those Resolution portions that have been adjudged. invalid. Resolution No. 2007-040 N.C.S. Page I The City Council of the City of Petaluma hereby declares that it would have adopted this Resolution and each section, subsection, clause, sentence, phrase and other portion hereof, irrespective of the fact that one or more section subsection, clause sentence, phrase or other portion may be held invalid or unconstitutional. 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 r d as to Council of the City of Petaluma at a Regular meeting on the 5`~' day of March, 2007, o by the following vote: City~orney AYES: Barrett, Freitas, Harris, Vice Mayor Nau, O'Brien, Rabbitt, Mayo • a NOES: None ABSENT: None ABSTAIN: None ; ATTEST: C t"! City Clerk ;ayor _ Resolution No. 2007-040 N.C.S. Page 2 Exhibit A SUBMETERING AGREEMENT THIS SUBMETERING AGREEMENT ("Agreement") is entered into and. effective as of , 20 ,between the City of Petaluma, a municipal corporation and a charter City ("City'), and a homeowners' association or other authorized management representative for the common interest development commonly known as ("BILLING PARTY") (collectively, the "Parties"). RECITALS 1. Whereas, Section 15.12.050 of the Petaluma Municipal Code prohibits the resale of wafter except by special agreement with the City. 2. Whereas, BILLING PARTY is responsible for payment of the utility bill and represents the. owners of the common interest development known as and located at , APN (the "Property") which is served by the Petaluma Department of Water Resources and Conservation ("Department") . 3. Whereas, BILLING PARTY wishes to implement a water submetering system at the Property. 4. Whereas, City anticipates that permitting BILLING PARTY to bill Individual Utility Users (IUU) for their actual use of water and wastewater resources will improve water use efficiency and promote water conservation. 5. Whereas, a national study found no evidence that Ratio Utility Billing Systems (RUBS) reduce water use by a statistically significant amount compared with traditional in-rent arrangements, therefore RUBS are not included in this Agreement. 6. Whereas, BILLING PARTY is in a better position than the IUU to negotiate and control billing fees with a third party billing service. THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Parties agree as follows: 1. Special Agreement. This Agreement shall be deemed a "special agreement" permitting resale of City water, as required by section 15.12.050 of the City of Petaluma Municipal Code. 2. Authorization. City authorizes BILLING PARTY to engage in submetering activities subject to compliance with all provisions of this Agreement. 3. Accurate Billing. BILLING PARTY shall use the method for submetering which will most accurately bill IUUs for their actual water usage and which will result in the most efficient use and conservation of water, i.e., if the Property can be submetered through a single point of entry into each unit for total submetering, this method shall be required. RUBS are not permitted by this Agreement. 4. submetering Equipment. Any and all costs for designing, purchasing, installing, maintaining and operating submetering equipment, including but not limited to meters, piping, and valves, shall be borne by the BILLING PARTY, except where a different allocation of costs is expressly permitted by State or local law, BILLING PARTY shall retain sole ownership of submetering equipment. Resolution No. 2007-040 N.C.S. Page 3 5. Bill for Actual Cost of Water. BILLING PARTY shall bill an IUU only for the actual cost of water charged to BILLING PARTY by City, plus any other applicable fees (i.e. late fees, returned check fees), and shall not charge an IUU a higher rate or for a greater volume of water than is billed to BILLING PARTY by City. BILLING PARTY may charge an IUU only those fees (i..e., late fee, returned check fee) which are charged by the City to an individual water user in similar circumstances, and the amount of any such fee may not exceed that charged by the City to an individual water user in similar circumstances. Any charge in excess of the amounts actually billed to BILLING PARTY by City for water and/or in excess of the volume for an individual IUU measured by the submetering system installed by BILLING PARTY pursuant to this Agreement, other than as provided in this section, shall be considered "Excess Charges." Such charges and fees in excess of those permitted by this section shall be considered "Excess Charges" and governed by the provisions of this Agreement relating to Excess Charges. No common area utility usage shall be billed to any IUU. A separate submeter shall be installed for common area utility usage. If the irrigation system is not separately metered from the property, the irrigation system shall also be submetered. 6. Licensing of Third Party Billing Agents._ Any third party billing agent must be properly registered and licensed to do business in the State of California and City of Petaluma. 7. Billing Charges. BILLING PARTY shall be responsible for any recurring third party billing charges and shall not pass those charges onto the IUU. 8. Financial Records. BILLING PARTY agrees to maintain financial records pertaining to all matters encompassed in this Agreement in accordance with standard accounting principles and procedures and submit said records to the Department for review and audit pursuant to this Agreement, upon request of City. BILLING PARTY further agrees to retain all records and support documentation related to his Agreement for a period of three (3) years. 9. Financial Audit. BILLING PARTY agrees to permit the audit of the records described above. by the Department or its designated representative at any time, upon written demand by City. Within 14 days of receipt of City's written demand for said records by certified mail to BILLING PARTY at the address stated below, BILLING PARTY or its designated representative shall deliver or cause to be delivered, all requested documents to the Department for audit. BILLING PARTY is entitled to notice of the date, time and location of the audit, may be present for the audit and may present any evidence which BILLING PARTY deems necessary to Department at the time of the audit. A formal hearing procedure is not required, and the Department may consider such evidence as it deems necessary notwithstanding formal rules of evidence. The audit will be performed within 30 days of BILLING PARTY's receipt of City's demand, unless a later date is agreed to by the Department. The administrative costs of performing the audit shall, in the discretion of Department, be paid by BILLING PARTY. 10. Excess Charges. If the audit determines that BILLING PARTY has billed and/or collected Excess Charges from any IUU, BILLING PARTY agrees to refund to said IUU(s) the full amount of any Excess Charges as determined by the Departmental audit. The decision of the Department as to the existence or amount of Excess Charges shall be final.. Failure to submit adequate documentation for audit as required by this Agreement shall create the presumption that Excess Charges have been billed and/or collected by BILLING PARTY. All proceeds collected by BILLING PARTY for submetered water during any time period for which the required documentation was not submitted to the Department upon demand therefore shall be presumed to constitute Excess Charges. Resolution No. 2007-040 N.C.S. Page 4 11. Water Conservation Audit. Prior to execution of this Agreement, the City shall conduct a water conservation audifi of BILLING PARTY's Property. The purpose of the audit is to identify and locate leaks in water fixtures. BILLING PARTY shall repair any and all water leaks identified during the water conservation audit prior to execution of this Agreement. Satisfaction of this requirement shall be at the sole discretion of the City. 12. Retain Documents. All documentation which has been involved in an audit in which a finding of Excess Charges has been made by the Department shall be retained by BILLING PARTY for a period of three (3) years after the date of such finding. 13. Certificate of Compliance. All submeters installed for the purpose of individually measuring the water usage of an IUU shall have a certificate of compliance through the State Department of Weights and Measures, shall be certified accurate bythe Sonoma County Department of Weights and Measures and must bear the seal of the County Sealer of Weights and Measures prior to installation. BILLING PARTY shall comply with all requirements for testing, retesting and certification as adopted by the Sonoma County Department of Weights and Measures. 14. Written Notice to IUUs. Prior to the commencement of billing for the utilities authorized under this agreement, BILLING PARTY shall provide 60 days' written notice to all IUUs of BILLING PARTY's intent to implement a submetering system. The written notice shall disclose the method of billing, the responsibilities ofthe IUU, a description of fees and their amounts (i.e. late fees, returned check fees), a toll free or local telephone number and. the name of BILLING PARTY's designated representative who will be sufficiently informed to respond to inquiries from IUUs and who will be authorized by BILLING PARTY to resolve complaints or disputes relating to the submetering system, water service billings and/or the Billing Service, together with any other relevant information required by the Department. A copy of the notice shall also be delivered to any new IUU tenant or owner on or before the date on which that IUU tenant or owner takes possession of any portion of BILLING PARTY's premises served by the submetering system. 15. Dispute Resolution. In the event of a dispute between BILLING PARTY and any IUU tenant or owner relating to any matter covered by this Agreement, BILLING PARTY agrees to use all best efforts to resolve the dispute informally with the IUU tenant or owner, including participation in mediation and/or other alternative dispute resolution requested or agreed to by the IUU tenant or owner. City shall have no responsibility to either the BILLING PARTY or the IUU regarding resolution of disputes between the BILLING PARTY and the IUU. .16. No Service Termination. BILLING PARTY may not terminate utility services to an IUU in the event of non-payment by an IUU. The rental agreement or ownership documents shall govern the collection methods available to the BILLING PARTY in the event of non-payment by the IUU. City shall have no responsibility to either the BILLING PARTY or the IUU regarding collections of amounts due BILLING PARTY by an IUU. 17. Responsibility for Payment. BILLING PARTY shall remain solely responsible to City for the payment of all amounts billed or charged to BILLING PARTY by City for water and water services furnished to BILLING PARTY and/or the Property, regardless of any submetering system implemented by BILLING PARTY and payment or nonpayment of any amounts permitted hereunder by IUUs to BILLING PARTY. 18. Billto IUU. The bi11 is the fundamental communication between BILLING PARTY and the IUU. As such, each bill must be clear, understandable and include all charges billed, with an adequate explanation of each charge. The bills shall include: Resolution No. 2007-040 N.C.S. Page 5 (i) A clear statement of the current and any past due charges and fees. (ii) The time period covered by the bill. (iii) The beginning and end meter readings for the billing period. (iv) The date that payment is due and the date on which a late charge, if any, will be assessed. (v) A mailing address and toll free or local telephone number for customer service and inquiries. 19. Termination. City retains the right to terminate this Agreement in City's sole discretion, and upon 60 (sixty) days' written notice, sent by certified mail to BILLING PARTY at BILLING PARTY's address as stated below. Repeated and unresolved violations of this Agreement shall bean appropriate basis for termination. All billing for water or water services by BILLING PARTY to all IUUs shall cease upon the date specified in City's written notice of termination. 20. Notice. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Party in accordance with this Section.. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or (iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a nonbusiness day. City: City Clerk City of Petaluma Post Office Box 61 Petaluma, California 94953 Telephone: (707) 778-4360 Facsimile: (707) 778-4554 And: Director Water Resources & Conservation City of Petaluma 202 North McDowell Blvd. Petaluma, CA 94954 Telephone: (707) 778-4546 Facsimile: (707) 778-4508 Landlord: Telephone: Resolution No. 2007-040 N.C.S. Page 6 Facsimile: 21. Assignment/Transfer. BILLING PARTY shall not assign, transfer or sublet this Agreement, in whole or in part, without the prior written consent of the City. Upon transfer or sale of the Property, or in the event BILLING PARTY ceases to own the Property or any interest in it, the City may, in its sole discretion, approve transfer of this Agreement to the Property's new owner(s), or may require any successor owners of the .Property to enter into a new agreement subject to then-existing provisions of law, City regulations and/or requirements as a condition of continuing the water resale system contemplated by this Agreement. 22. Warrant. BILLING PARTY represents and warrants that BILLING PARTY is otherwise legally authorized to enter into this Agreement on behalf of the owners of the common interest development, and that the person signing this Agreement on behalf of BILLING PARTY is authorized to sign it on BILLING PARTY's behalf. 23. Entire Agreement. This Agreement embodies the complete understanding among the parties hereto, superseding any oral or written previous agreements. This Agreement may only be modified in writing signed by the parties hereto. CITY: For Billing Party: City Manager Name Title ATTEST: Address City Clerk APPROVED AS TO FORM: City State Zip City Attorney APPROVED: Director, Department of Water Resources 8~ Conservation Resolution No. 2007-040 N.C.S. Page 7