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5.f) Subsurface Sewage Treatment System Inspection Services ,r •� l, ,.��, '_"�.�'�. � aJ (� �� SCANDIA Staff Renort Date of Meeting: December 11, 2012 To: City Council From: Kristina Handt, City Administrator Re: Subsurface Sewage Treatrnent System Inspection Services Agenda Item#: 5.� Background: The City of Scandia has been contracting with Washington County to provide septic system permitting and inspection services. The current contract will expire on December 31, 2012. Included in your packet is the letter from Amanda Strommer along with a proposed contract for continuing services through December 31, 2014. Issue: Does the City want to continue contracting with Washington County for these services? If so, is the proposed contract acceptable? Proposal Details: The changes to this contract from previous agreements is highlighted in Ms. Strommer's letter and includes changes in the areas of scope of services, independent contractor, nondiscrimination, and terms and effective date. The City Attorney has reviewed the proposed agreement and offered the following comments: "As you requested, I have reviewed the proposed Agreement for Subsurface Sewage Treatment System Inspection Services ("Agreement") as well as the November 27,20121etter from Amanda Strommer of the Washington County Departrnent of Public Health and Environment which accompanied the draft Agreement. I have not reviewed any previous such contracts with the County and I have no knowledge of any past issues regarding the County's performance of the permitting and inspection services identified in the Agreement. If the past relationship has been a good one with no significant issues, as you have indicated in the past, there is less need for revisions to the Agreement. With the above backgound in mind,please accept the following comments and questions: ,. 1. The Agreement appears to meet the Joint Powers Agreement requirements of Minnesota Statutes Section 471.59. 2. Please confirm the accuracy of the recitals. 3. If there are past issues in terms of timing, level of service etc. they should be addressed in Paragraph 2 under County responsibilities. If the arrangement has been satisfactory under past contracts, there is no reason to believe that any specific requirements need to be included in this section. Also, while this section requires the County to provide notice to the City of changes in standards of performance, there is no mechanism for the City to comment on or approve/disapprove such changes. 4. Paragraph 8 of the County responsibilities allows the County to request certain actions to correct or abate violations or threatened violations. Paragraph 4 of the City responsibilities states that the City is responsible for such actions or proceedings. However, it is less clear if the City has discretion in exercising these powers and if the City has discretion,what the County may do if the City elects not to proceed. 5. Please review the mandatory responsibilities of the City as identified in Paragraphs 1,2,3,6 and 7 and the permissive responsibilities in Paragraphs 5 and 9. If any of these responsibilities should be reclassified , now is the time to do so. 6. In Paragraph 7 of the City responsibilities, there is no standard for measuring the City's cooperation such as "reasonably" or something similar. However,there is also no standard for the County's cooperation in Paragraph 9 of the County responsibilities. Therefore, as to this issue the playing field is level. 7. Paragraph 1 uses the term "municipal sewer"but does not define it. I assume the delineation between municipal and non-municipal sewers will not present any problems. If this is not accurate,perhaps a definition would be helpful. 8. Certain sections of the Agreement seem to limit applicability to residential and new commercial permitting but not to expansion of commercial operations. See for example Paragraphs 1 and 6 of the City responsibilities. Is this accurate? 9. Paragraph 8 of the City responsibilities provides that the City may adopt a revised SSTS Ordinance if the County revises its SSTS Ordinance but it doesn't say what happens if the City elects not to do so. If the City's code adopts the County SSTSRO as amended from time to time, there is no issue. However, if the County amends its ordinance and the City does nothing will the old City ordinance still control this issues in the City? I expect,the City will either automatically or by future action adopt changes made by the County so this may not be a significant issue. 10. Last,the insurance section is unclear as to what is required or at least could be more clear. I presume the intent to be that the City and the County will each maintain insurance coverage sufficient to meet the liability limits of the referenced statute however what it says is the"City will provide maximum tort liability limits". It also does not contemplate future amendments to these limits. On the whole,while these sections are confusing, they are probably not critical since, in reality,both the County and the City will maintain insurance at or above these levels. As you have indicated, you will review the foregoing comments based on past practice and the relationship between the City and the County regarding the matters covered by the Agreement. If the Agreement is similar to past documents as appears to be the case from Ms. Strommer's letter, I don't see any issues which absolutely have to be addressed at this time. Further support for this is the one year duration of the Agreement and while there is no provision to terminate the Agreement earlier than its expiration date, any issues can certainly be addressed at that time. However, if you feel, from a practical standpoint that any of the above issues need revision, please let me know and I can provide suggested language for your consideration." Council should provide direction to staff on whether or not the city attorney should provide suggested language to change the agreement. Staff has not experienced problems associated with Washington County handling the permitting and inspections for this type of work. Fiscal Impact: NA Options: 1) Make no changes to proposed contract and direct staff to place it on the consent agenda for 12/18/12 meeting. 2) Amend the contract and direct staffto place it on the consent agenda for the 12/18/12 meeting. 3) Place contract on general business agenda for 12/18/12 meeting. ��] • Department of Public V r� gton Health and Environment ��D�l.y Lowell Johnson Director RECEIVED Sue Hedlund November 27, 2012 Deputy Director NOV 3 0 2012 City of Scandia Attn: Anne Hurlburt CITY OF SCANDIA 14727 209�' St N Scandia, MN 55073 Washington County, through its Department of Public Health and Environment(Department), has historically provided, and it is the county's desire to continue to provide, septic system permitting and inspection services for the City of Scandia. The most recent Agreement between the city and the county v�rill expire on December 3], 2012. Please be assured there will be no interruption of service to the city while we work jointly to execute a new Agreement. The changes to the Agreement include: � SCOPE OF SERVICES—City's Responsibilities— o Removed language that the city `shall' adopt an ordinance at least one year after the county adopts an ordinance. It is not a requirement for the communities to have their own ordinance. If they choose to not adopt the county ordinance the inspection, permitting, and enforcement all defer to the county. Each city may choose their level of involvement. Because your city has adopted the county ordinance by reference or has adopted your own ordinance this agreement continues to lay out the roles and responsibilities for each party. The county will undertake an ordinance revision process in 2013 and will seek input from the cities on the level of involvement the cities will like to have. • Independent Contractor—Removed independent contractor language as it does not apply to this agreement. • Nondiscrimination—Changed language to county standard. • TERMS AND EFFECTIVE DATE—Dates changed to reflect effective date of January 1, 2013 and termination date of December 31, 2014. Please review the enclosed Agreement, and, if the language is satisfactory, return the signed original Agreement to the attention to Kris Keller as I will be on leave until the end of February. We will send a fully executed copy of the Agreement to the city as soon as it is signed by the County Boazd Chair and County Administrator. If, however, there are paragraphs in the Agreement you would like to discuss more fully,please contact our Department at your earliest convenience. We look forwazd to continued service to your community. If you have any questions or if I can be of further assistance, please contact me at 651-430-6744 or via email at amanda.strommerna,co.washington.mn.us or Kris Keller at 651-430-6704 or via email at kri sto fer.ke l ler(a�co.washin�ton.mn.us. Government Center • 14949 62nd Street North—P.O. Box 6, Stillwater, Minnesota 55082-0006 Phone: 651-430-6655 • Fax: 651-430-6730 • TTY: 651-430-6246 www.co.washington.mn.us Equal Employment Opportunity/Affirmative Action Sincerely, p�,-�'rom�J' Amanda Strommer, Program Manager Enclosure: Agreement 2 • . . . . .. �. . ', _ l � �._/.._. ._.�.. . J (. ....,..C��.�,��. � �:,�. ___�y - -___ __ _ _ . ` �^ ' � / .r� � / iy.....<e _/. ..._... _ ._...... ..._..� / / i �'���. , �_ Agreement for Subsurface Sewage Treatment System Inspection Services This agreement is made and entered into, by and between the County of Washington (hereinafter referred to as the County) and the City of Scandia(hereinafter referred to as the City). I. WITNESSETH WHEREAS, the City wishes to contract with the County to perform subsurface sewage treatment system (SSTS) inspection services within the City's boundaries; and WHEREAS, the City adopted the County's Subsurface Sewage Treatment System Regulations Ordinance #179 (Washington County Development Code Chapter 4), hereinafter SSTSRO, regulating subsurface sewage treatment systems, which applies to all areas of the City; and WHEREAS,the County agrees to provide subsurface sewage treatment system inspection services under the terms and conditions hereinafter set forth; and WHEREAS, this contract is authorized under Section 471.59 of the Minnesota Statutes. NOW THEREFORE, it is mutually agreed between the County and City as follows: II. SCOPE OF SERVICES County's Responsibilities 1. The County agrees to provide, through its Department of Public Health and Environment, subsurface sewage treatment system inspection services for the City. The County shall provide a Qualified Employee(s),as described in Minn.Rule 7083.1010 and 7083.0020 subp 17. 2. The standards of performance, method of providing subsurface sewage treatment system inspection services, and other matters incident to the performance of services under this Agreement, including personnel to be employed, shall be determined by the County. The City shall be notified in advance of any proposed changes in standards of performance or methods of providing services. 3. T'he County shall provide the necessary SSTS application review and sewage system plan approval as required by laws,regulations and ordinances,provide all job site inspections of projects under permit, and conduct special inspections as deemed necessary to ensure compliance with the SSTSRO. Services shall include clerical support incidental to the performance of this agreement. 4. The County shall provide and issue all sewage permits as required by the SSTSRO,existing laws or regulations and shall maintain records of all such permits. If the City requests a copy of a granted permit,the County shall provide a copy to the City within 5 (five)working days. 5. The County shall send a copy of the County's issuance of a certificate of compliance of the sewage system's completion to the City within 10(ten)working days of the County granting the certificate. 6. In the event of a violation or threatened violation of the SSTSRO or sewage permit the County may pursue the administrative issuance of stop work orders on the installation of the septic system, and/or issue corrective orders, and/or issue notices of non-compliance. 7. The County shall advise the City if a misdemeanor citation is warranted for any violation of a sewage permit or SSTSRO. 8. The County may request appropriate actions or proceedings be brought by the City, to prevent, restrain, correct or abate violations or threatened violations of a sewage permit or SSTSRO. 9. The County will cooperate with the City's officials andlor employees in fulfilling its obligations under this Agreement. City's Responsibilities: 1. In areas not served by municipal sewer, the City shall not issue a building permit for new dwelling construction and/or for the addition of bedrooms until the County has issued a sewage permit for the new construction and/or addition of bedrooms. 2. The City shall act on all applications for special permits and SSTSRO variance requests. 3. Upon request from the County the City shall issue a stop work order on projects commencing construction prior to the issuance of a sewage permit. 4. The City is responsible for commencing appropriate actions or proceedings to prevent, restrain,correct or abate violations or threatened violations of a sewage permit or SSTSRO and shall represent the County during appeals of the administrative remedies issued by the County. 5. The City may issue misdemeanor citations for violations of the SSTSRO or sewage permit. 6. The City shall not issue a certificate of occupancy for new construction or the addition of bedrooms prior to receipt of the County's certificate of compliance. 7. The City, and its agents and employees, will cooperate and assist the County in the performance of this Agreement. 8. In the event of County SSTS Ordinance revision, the City may adopt a revised SSTS Ordinance which is consistent with or more restrictive than the County's revised SSTS Ordinance no more than 12 (twelve) months after the County revised SSTS Ordinance has been adopted. III. SCHEDULE OF FEES AND CHARGES 1. The County shall establish the schedule of fees for its subsurface sewage treatment system inspection services. The septic permit application and installation fees sha11 be in accordance with the fee schedule adopted annually by the Washington County Board of Commissioners. The County shall collect,receipt for,disburse,and maintain records for all fees and charges collected incident to the administration of subsurface sewage treatment system inspection and permit services contained herein. , 2. Fees and charges shall be due and payable by the applicant upon issuance of the permit and will be collected by the County from the applicant for said permit. 3. The City agrees that in payment for the subsurface sewage treatment system inspection and permit services provided by the County that the County shall retain, out of the fees and charges collected incident to this service, an amount equal to one hundred percent (100%) of all SSTS permit fees. 4. The City shall not assume any liability for the direct payment of any salary, wage, or other � compensation to any County employee performing subsurface sewage treatment system inspection services pursuant to this agreement. IV. GENERAL TERMS AND CONDITIONS Data Privacy 1. 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 City and County agree to abide by these statutes,rules and reguiations and as iney may be amended. Indemnity Clause 2. The City agrees that it will indemnify and hold harmless the County, its officers and employees,against any and all liability,loss,costs,damages and expenses which the County, its officers or employees may hereafter sustain,incur,or be required to pay arising out of the City's negligent performance or failure to adequately perform its obligations pursuant to this Agreement. The County agrees that it will indemnify and hold harmless the City, its officers and employees,against any and all liability,loss,costs,damages and expenses which the City,its officers or employees may hereafter sustain, incur, or be required to pay arising out of the County's negligent performance or failure to adequately perform its obligations pursuant to this Agreement. Insurance 3. The City further agrees that in order to protect itself, as well as the County, under the indemnifications provisions set forth above that it shall at all times during the terms of this Agreement, provide m�imum tort liability limits as set forth in Minnesota Statute, Sections 3.736 and 466.04. This provision shall be set as a condition subsequent; failure to abide by this provision shall be deemed a substantial breach of contract. The County further agrees that in order to protect itself, as well as the City,under the indemnifications provisions set forth above that it shall at all times during the terms of this Agreement,provide maximum tort liability limits as set forth in Minnesota Statute, Section 466.04. This provision shall be set as a condition subsequent; failure to abide by this provision shall be deemed a substantial breach of contract. Records—Availability and Retention 4. Pursuant to Minnesota Statute 16C.05,Subd 5.,the County/City agrees that the County/City, 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/City and involve transactions relating to this agreement. The County/City agrees to maintain these records for a period of six years from the date of termination of this Agreement and make available as requested. Nondiscrimination 5. The provisions of Minn. Stat. 181.59 and of any applicable ordinance relating to civil rights and discrimination shall be considered part of this Agreement as if fully set forth herein,and shall be part of any Agreement entered into by the parties with any contractor,subcontractor, or material suppliers. Merger and Modification 6. It is understood and agreed that the entire Agreement between the parties is contained here and that this agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter. Any material alterations, variations, modifications, or waivers of provisions of this 4 Agreement shall be valid only when they have been reduced to writing as an amendment and signed by the parties. Severability 7. 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. V. TERM AND EFFECTIVE DATE 1. The effective date of this agreement shall be January 1,2013,notwithstanding the date of the signatures below. 2. This agreement shall run until December 31, 2014, at which time it will automatically terminate unless it is renewed by official action of both the City and the County prior to the termination date. Notice of either the City's intent or the County's intent not to renew the agreement should be given to the other party ninety(90)days in advance of the December 31, 2014, termination date. 5 IN WITNESS WHEREOF, the City has caused this agreement to be signed by its Mayor and attested to by its Clerk, and the County of Washington, by order of its Board of County Commissioners, has caused this Agreement to be signed by its Board Chair and attested to by its County Administrator. City of Scandia, Minnesota Washington County, Minnesota By: By: Mayor Chair, Board of Commissioners Date: Date: By: By: City Clerk County Administrator Approved as to Form: s � Assistant Washington County Attorney 6