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9.d) Agreement with Washington County for Operation and Maintenance of the 201 Community Collector Sewer System Meeting Date: 2/21/2012 Agenda Item: � �� City Council Agenda Report City of Scandia 14727 209�' St. North Scandia, MN 55073 (651) 433-2274 Action Requested: Approve an agreement with Washington County for operation and maintenance of the 201 community collector sewer system. Deadline/ Timeline: An extension of the previous contract expires at the end of February. Background: • The city's previous 2-year contract with Washington County expired at the end of 2011. The County had initially offered the city a new, 2-year contract. But the proposed agreement included unacceptable changes to the indemnity language that would relieve the county of all liability for its own acts regarding the contract. • We were unable to reach agreement on changes to this section by the end of 2011, so at its December 20, 2011 meeting the Council approved a 2-month extension. • A revised contract has now been prepared,which contains indemnity language acceptable to both parties (see Section IV.) The remainder of the agreement is essentially the same as the previous contract, except for Section IX, the term of the agreement. • Because of the County's new role in issuing permits for medium- sized SSTS, they will be phasing out their role and the city agrees to seek professional services for operation and maintenance of the Anderson/Erickson portion of the system. The agreement with the County may be terminated with 30-days notice from the city that it has hired a contractor. • The County will continue to operate the Bliss portion of the system until the entire agreement is terminated, which requires 90- days notice. The entire agreement will expire December 31, 2013. Recommendation: Staff recommends approval of the ageement. Attachments/ • Community Wastewater Treatment System Operation and Materials provided: Maintenance Agreement Contact(s): Prepared by: Anne Hurlburt, Administrator (201 Wastewater System Contract) Page 1 of 1 02/14/12 Community Wastewater Treatment System Operation and Maintenance Agreement This Agreement is made and entered into by and between Washington County, hereinafter referred to as the "County" and the City of Scandia,hereinafter referred to as the "City". Whereas, under the Washington County "201" Sewer Use Ordinance, the incorporated community (the City) in which the treatment system is situated is responsible for operation, maintenance and replacement of all publicly owned components of the community sewage treatment system; and Whereas, the City desires to contract with the County for the performance of routine operation and maintenance of the community wastewater treatment system (hereinafter referred to as the "201 system") owned by and under the jurisdiction of the City; and Whereas, the County agrees to render such operation and maintenance services on the terms and conditions hereinafter set forth; and Whereas, such Agreements are authorized and provided by Minnesota Statute 471.59; Now Therefore, in consideration of the mutual promises contained herein, it is mutually agreed between the County and the City as follows: Section I. County's Responsibilities 1. The County agrees to provide, through its Department of Public Health and Environment, 201 system operation and maintenance for Bliss and Anderson/Erickson systems within the corporate limits of the City to the extent and in the manner set forth in this section. 2. The County will provide routine operation and maintenance of the existing 201 wastewater treahnent system in accordance with the approved Operating and Maintenance Manual for the system and as anticipated and planned for in the annual operating budget as adopted by the City Council. Routine operation and maintenance as provided in this contract specifically excludes decisions or actions regarding 201 system upgrade, expansion of use and/or replacement of the system. The most recent agreed upon version of the Operating and Maintenance Manual for the system is incorporated herein by reference. Further, the parties by mutual agreement may modify or update said manual with the new version then being automatically incorporated herein without the need to otherwise amend this agreement. 3. In providing such routine operation and maintenance, the County will provide staff, equipment and other supplies and materials as may be needed to conduct such routine operation and maintenance. The standards of performance, method of providing services and other matters incident to the performance of operation and maintenance services 1 under this Agreement, including personnel to be employed, shall be determined by the County except to the extent that specific operating policies and procedures have been adopted for the 201 system. 4. The County can expressly subcontract pumping services and/or routine maintenance and repair to the 201 system (such as excavating services, pump or tank repair, repair to lift stations and collection lines) as necessary to fulfill its obligations under this Agreement. As part of an agreement with any subcontractor under this paragraph, the County will require vendors, at a minimum, to provide insurance coverage in an amount equal to the county's liability limits set forth in Minn. Stat. Chapter 466 and the worker's compensation requirements in Minn. Stat. Chapter 176. Vendors are to agree, as a condition subsequent, to increase the required insurance coverage as the liability limits in Minn. Stat. 466.04 increase. The county may set higher limits than those set forth in Minn. Stat. Chapter 466 for contracts in which the exposures/risks generated are significantly higher. In instances where a vendor can only provide lesser limits of coverage, the County may accept these limits, realizing there is additional exposure to risk. There are also occasions where the services provided by vendors expose the county to very little risk, and the insurance requirement may be waived in part or entirely. However, in cases where lower insurance limits are sought or a waiver of insurance requirements is requested, all such requests shall be mad e in writing to the county's Risk Manager in Human Resources for approval. Such a request shall be made prior to having the County Attorney's Office sign the contract as to form. If liability insurance requirements are waived, a workers compensation insurance requirement must still be in the contract. 5. The County will prepare an annual proposed budget for the 201 system operation and maintenance and present such proposed budget to the City each year, by November 30, for the following year of operation. 6. Following the policies and procedures established by the City, the County will prepare annual charges to be assessed to the residents on the 201 system. These charges, along with the documentation by which the charges were determined, will be submitted to the City Clerk on a time schedule determined by the City. 7. In the event that the 201 system requires maintenance and/or repair which will result in expenditures beyond that which has been approved by the City in its annual budget, the County will contact the City in advance of authorizing and/or proceeding with such repairs. Emergency repairs will be managed in accordance with the operating policy mutually developed between the County and the City. 8. The County will submit, on behalf of the City, all reports required by the MPCA under the SDS permit for the 201 system. The County will provide timely reports to the City on individual maintenance, repair or emergency incidents. The County will also provide an annual operating, maintenance and repair report to the City together with an assessment of the overall status of the 201 wastewater treatment system. Such annual report shall be made by February 1 of each year for the prior operating year. 9. The County will cooperate with the City's officials and/or employees (including engineering staffl in fulfilling its obligations under this Agreement. Section II. City's Responsibilities 1. The City, its officers, agents and employees, will cooperate and assist the County in the performance of this Agreement. 2. The City will provide policy and procedural direction for the operation and maintenance of the 201 wastewater treatment system and will communicate such policies and procedures to the County through written notice to the County along with copies of said policies and procedures as adopted and/or revised. 3. The City specifically authorizes the County to subcontract, on its behalf, for services to be provided by the County under the provisions of this Agreement. 4. The City will be responsible for approving the budget for 201 system operation and maintenance and for advising the County of its budget decision. The City, at its sole discretion, will be responsible for determining the type of and/or amount of any replacement fund for its 201 system. 5. The City will approve any maintenance and/or repairs to the 201 system which, in the County's estimation, will exceed the budget established by the City. Such approval shall be in advance of the County's proceeding with repair and/or maintenance except that emergency repairs will be made in accordance with the operating policy mutually agreed to between the County and the City. 6. The City will be responsible for determining, through its engineering firm or its own consultants, the amount of available capacity for expanded use of the system. 7. The City will be responsible for making decisions regarding upgrade, expansion of use and/or replacement of the 201 system. Such decisions include the issuance of building permits and review of variances for new construction which would be connected to the 201 system and/or expansion of existing homes which are currently on the 201 system. 8. The City will approve annual billings to residents on the 201 system and will send such bills to the residents on City letterhead. The City will be responsible for collection of all annual billings to residents. 9. The City shall maintain and be responsible for its 201 system monetary fund. 10. The Parties agree that this agreement is strictly for the benefit of the City and no benefits from this Agreement, third-party or otherwise, will inure to the individual residents of the City. 3 Section III. Payment for Services 1. The City agrees to reimburse the County for its expenses related to the services provided under this Agreement. Reimbursement for staff personnel time shall be $100.00 per hour for the calendar year 2012; and $100.00 per hour for the calendar year 2013. Mileage will be reimbursed at the current County reimbursement rate to its employees as determined annually by the Washington County Board of Commissioners. 2. The City agrees that it shall bear the sole responsibility for the cost of any necessary replacement motors, parts and related labor, subcontractor costs, and utilities necessary for operation and maintenance of the 201 system and all expenses in excess of staff costs and mileage expense. 3. Quarterly, the County shall submit its actual expenses to the City for reimbursement. The request for payment shall be accompanied by an explanation of the charges. Charges shall be submitted in April (for the period from January 1 to March 31), in July (for the period from April 1 through June 30), in October (for the period from July 1 to September 30) and in January (for the period from October 1 to December 31 of the previous year). 4. The City shall pay the County's invoices within forty-five (45) days of receipt, except for those individual invoice items where a legitimate question exists. In such cases, the City will pay all unquestioned amounts in the time specified above, while the parties agree to work in good faith to resolve any billings in question. 5. At the end or termination of this Agreement, the City will pay all reimbursable expenses incurred by the County in performance of this Agreement up to and including the final date of the effective date of the Agreement. Section IV. Indemnity Each party agrees that it will be responsible for its own acts and the results thereof to the extent authorized by law and shall not be responsible for the acts of the other party and results thereof. The County's liability shall be governed by Minnesota Statute section 466.04. Under no circumstances, however, shall a party be required to pay on behalf of itself and other parties, any amounts in excess of the limits on liability established in Minnesota Statutes, Chapter 466, applicable to any one party. The limits of liability for some or all of the parties may not be added together to determine the maximum amount of liability for any party. SecNon V. Nondiscrimination During the performance of this Agreement, the County agrees to the following: No person shall, on the grounds of race, color, religion, age, sex, disability, marital status, public assistance status, criminal record, creed or national origin be excluded from full employment rights, participation in, be denied the benefits of or be otherwise subjected to discrimination under any and all applicable Federal and State laws against discrimination. Section VI. Records—Availability and RetenNon Pursuant to Minnesota Statute 16C.05, Subd 5., the County agrees that the City, County, the State Auditor, or any of their duly authorized representatives at any time during normal business hours and as often as they may reasonably deem necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc. which are pertinent to the accounting practices and procedures of the County and involve transactions relating to this agreement. The County agrees to maintain these records for a period of six years from the date of termination of this Agreement Section VII. Data Privacy All data collected, created, received, maintained or disseminated for any purposes by the activities of the County because of this Agreement is governed by the Minnesota Government Data Practices Act, Minnesota Chapter 13, as amended, the Minnesota Rules implementing such Act now in force or as adopted, as well as Federal Regulations on data privacy, including but not limited to, the Health Insurance Portability and Accountability Act (HIPAA) where it applies. The County agrees to abide by these statutes, rules and regulations and as they may be amended. Section VIII. Firearms Prohibited Unless specifically required by the terms of this Agreement, no provider of services pursuant to this Agreement, including but not limited to employees, agents or subcontractors of the County shall carry or possess a firearm on county premises or while acting on behalf of Washington County or the City pursuant to the terms of this Ageement. Violation of this provision shall be considered a substantial breach of the Agreement; and, addition to any other remedy available under law or equity. Violation of this provision is grounds for immediate suspension or termination of this Agreement. . Section IX. Term of the Agreement 1. This Agreement shall be effective on February 28, 2012. Unless sooner terminated as provided herein, this Agreement shall terminate on December 31, 2013. This Agreement shall not be self-renewing; however, the Parties may renew this agreement beyond the December 2013 expiration date, subject to agreement to extension of the agreement, in writing,by each of the Parties. 2. Due to the changes to MN Rules 7080-7083 and County Ordinance#179, the County will be issuing an operating permit for the Anderson/Erickson 201 System. The County will phase out operation and maintenance of the Anderson/Erickson 201 System. The City will seek professional services necessary for operation and maintenance of the Anderson/Erickson 201 System. Both parties agree that after a suitable vendor is acquired the agreement to operate and maintain the Anderson/Erickson 201 System will 5 be terminated within 30 days of written notice by the City to the County that the City has acquired a contractor for the Anderson/Erickson 201 System. This agreement will still apply to the operation and maintenance of the Bliss 201 System unless the City deterrnines to terminate the entire agreement per item 4 below. 3. It is understood that this Agreement contains the entire Agreement between the County and the City and that any statement, promises or inducements made by any Party hereto, or officer, agent, or employee of either Party hereto, which is not contained in this written Agreement shall not be valid and binding; and this Agreement may not be enlarged, modified or altered except in writing signed by each of the parties hereto. It is expressly understood between the Parties, and this understanding shall be considered in interpreting the provisions of this Agreement, that upon notice given by any Party hereto, later negotiations may be undertaken for the purpose of revising, adding to or striking any provision of this Agreement which appear unworkable or insufficient to perfect, maintain and insure the purpose of this Agreement. Any change of the original provisions of this Agreement shall be written, signed by both parties and attached to this Agreement as provided above and this later revision, addition or deletion shall only apply to the provision revised, added or deleted and the remainder of this Agreement shall remain in full force and effect. 4. This Agreement may be terminated at any time and with or without cause by either Party by providing ninety(90) days written notice to the other Party of intent to terminate. Section X. Severability Every section, provision or part of this Agreement is declared severable from every other section, provision or part thereof to the extent that if any sections, provision or part of this Agreement shall be held invalid by a court of competent jurisdiction, it shall not invalidate any other section, provision or part thereof. In Witness Whereof, the City has caused this Agreement to be signed by its Mayor and attested to by its Clerk, and the County has caused this Agreement to be signed by the Chair of its Board of County Commissioners and attested to by its County Administrator. For purposes of administering this Agreement, the County contact shall be Amanda Strommer, Program Manager or her designee; and the City contact shall be Anne Hurlburt, Administrator or her designee. For the City of Scandia For the County of Washington Mayor County Board Chair Date Date City Clerk County Administrator Date Date Approved as to Form Assistant Washington County Attorney 7