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HomeMy WebLinkAboutReso - CC - 023-2006RESOLUTION NO. 23-2006 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME APPROVING NORTH BAYSIDE SYSTEM UNIT (NBSU) JOINT POWERS AGREEMENT BETWEEN THE CITIES OF BURLINGAME, MILLBRAE, SAN BRUNO, AND SOUTH SAN FRANCISCO AND THE CITY & COUNTY OF SAN FRANCISCO AND AUTHORIZING MAYOR TO SIGN THE AGREEMENT RESOLVED, by the City Council of the City of Burlingame: WHEREAS, for almost thirty years, the Cities of Burlingame, Millbrae, San Bruno, and South San Francisco and the City & County of San Francisco have participated in the sharing of the costs and benefits of the North Bayside System Unit (NBSU) for a sewage effluent outfall force main and de -chlorination system to serve the five cities and San Francisco International Airport; and WHEREAS, it is appropriate to revise the existing agreement and replace with it a new agreement that better specifies the cost bases of the five agencies; and WHEREAS, the revised agreement and the continued sharing of services of the NBSU will serve the communities and the well-being of San Francisco Bay, NOW, THEREFORE, IT IS RESOLVED AND ORDERED: 1. The Mayor is authorized and directed to execute the NBSU Joint Powers Agreement as contained in Exhibit A hereto. 2. The Clerk is directed to attest to the signature o the May MAYOR I, DORIS MORTENSEN, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was introduced at a regular meeting of the City Council held on the t 7th day of Apri I 2006, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: COHEN, O'MAHONY, NAGEL, BAYLOCK NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: K E I G H RA N CI CLERK JOINT POWERS AGREEMENT PERTAINING TO OWNERSHIP OF CAPACITY, OPERATION, MAINTENANCE, AND CAPITAL PROJECTS COST SHARING OF THE SOUTH SANFRANCISCO EFFLUENT PUMP STATION, SOUTH SAN FRANCISCO OUTFALL FORCE MAIN, SOUTH SAN FRANCISCO SUBMARINE OUTFALL, SWITCHGEAR BUILDING, AND THE DECHLORINATION FACILITY (KNOWN AS THE NBSU FACILITIES) THIS AGREEMENT, made and entered into as of the day of 2006, by and between the members of the North Bayside System Unit (NBSU) that includes the CITY OF SOUTH SAN FRANCISCO ("South San Francisco"), the CITY OF SAN BRUNO ("San Bruno'), the CITY OF BURLINGAME ('Burlingame"), the CITY OF MILLBRAE ("Millbrae") and the CITY AND COUNTY OF SAN FRANCISCO, acting by and through its AIRPORT COMMISSION (the "Airport"). The members of the NBSU are hereinafter collectively referred to as "Agencies". WITNESSETH WHEREAS, pursuant to a joint powers agreement entered into on April 170', 1972, by and between the City of South San Francisco, the City of San Bruno, the City and County of San Francisco, acting by and through its Airport Commission, said cities provided for the joint construction, use and ownership of an Outfall Force Main ("South San Francisco Outfall Force Main"), a Submarine Bay Outfall, Flow Meter ("South San Francisco Submarine Bay Outfall"), and Switchgear Building; and WHEREAS, pursuant to a joint powers agreement executed in April 1973, between Burlingame and Millbrae, said agencies provided for the construction and operation of the Burlingame -Millbrae Central Bay Outfall System, designed to transport treated Burlingame and Millbrae plant effluent to the South San Francisco Effluent Pump Station for pumping through the South San Francisco Outfall Force Main and the South San Francisco Submarine Bay Outfall for ultimate bay disposal; and 1 WHEREAS, Burlingame, Millbrae and South San Francisco, on June 23, 1973, entered into an Agreement, entitled "Joint Powers Agreement Relating to Acquisition of Capacity in Effluent Pump Station, Outfall Force Main, Submarine Outfall and Appurtenant Facilities", that provided for the Cities of Burlingame and Millbrae to purchase capacity rights in the South San Francisco Outfall Force Main and the South San Francisco Submarine Bay Outfall, and Appurtenant Facilities; and WHEREAS, a Joint Powers Agreement dated September 12th, 1977, wherein the Cities of Millbrae and Burlingame joined with the aforementioned three agencies to construct a Dechlorination Facility and form the North Bayside System Unit (NBSU) which provided for the equitable sharing of the benefits and costs of the NBSU among the five cities; and WHEREAS, pursuant to these Agreements, the City of South San Francisco has been, and will continue to be, the administering agency responsible for operating the facilities on behalf of the parties to said agreements; and WHEREAS, said NBSU Facilities have been modified as part of a Water Quality Control Plant Improvement and Modification Project completed in 2001, the costs of which are shown in Exhibit A-1, Facilities whenever used hereinafter shall refer to: I — South San Francisco Effluent Pump Station 2 — South San Francisco Outfall Force Main 3 — South San Francisco Submarine Outfall 4 — Switchgear Building 5 — Dechlorination Facility WHEREAS, pursuant to the aforesaid facts and authorities, the agencies desire to define ownership of capacity, establish cost sharing for administration, operation & maintenance, define cost sharing of capital projects for the Facilities by the Agencies, and supercede all existing Joint Powers Agreements, and to establish conditions related thereto; FA NOW, THEREFORE, IT IS AGREED, as follows: 1. PURPOSE: The purpose of this Agreement is to define the North Bayside System Unit (NBSU), replace all existing Joint Powers Agreements relating to said facilities, and delineate responsibilities and cost sharing for operations, maintenance, capital projects, and administration of the Facilities. 2. NORTH BAYSIDE SYSTEM UNIT (NBSU) DEFINED: The North Bayside System Unit (NBSU) is defined as the parties to the Agreement. They include: the City of South San Francisco ("South San Francisco') which is responsible for administering the NBSU, the City of San Bruno ("San Bruno'), the City of Burlingame ('Burlingame"), the City of Millbrae ("Millbrae") and the City and County of San Francisco acting by and through its Airport Commission (the "Airport"). 3. OWNERSHIP OF CAPACITY: NBSU member agencies shall have ownership of capacity, in accordance with Exhibit "A" attached hereto and incorporated herein by this reference. No agency shall discharge effluent into the Facilities exceeding such capacity rights. However, temporary or permanent adjustments may be made with written approval of all owners of capacity in the Facilities. South San Francisco has sole ownership of the land on which the Facilities are located. 4. OPERATION AND MAINTENANCE: The City of South San Francisco shall be responsible for the operation and maintenance of the Facilities. South San Francisco shall operate and maintain the Facilities in good repair and working order in accordance with sound engineering practices and in accordance with all applicable laws, statutes and regulations of governmental agencies having jurisdiction over the Facilities. Neither an NBSU agency, nor any officer, employee or agent of an NBSU agency shall be responsible for any damage or liability occurring by actions solely done or omitted to be done by the City of South San Francisco in connection with the operation or maintenance of the Facilities. It is also understood and agreed that, pursuant to Government Code Section 895.4, the City of South San Francisco shall fully indemnify and hold the NBSU and each agency, harmless from any liability imposed for injury (as defined by Government Code Section 810.8) occurring by reason of actions solely done or 91 omitted to be done by the City of South San Francisco in connection with the operation or maintenance of the Facilities. This indemnity does not extend to any NBSU member agency which has exceeded its allocated capacity of flow through the system. 5. COST SHARING OF OPERATION, MAINTENANCE CAPITAL PROJECTS & ADMINISTRATION: The costs of operating and maintaining the Facilities shall be borne by the parties hereto in accordance with their respective annual average daily flow to the Facilities. The cost of capital projects shall be home by the parties hereto in accordance with their capacity rights as shown in Exhibit "A". a. Costs of Operation: Shall include costs of labor, including social security, unemployment and other taxes and employee benefits, materials, chemicals, power, supplies, sampling, testing, monitoring, and preventative maintenance. b. Costs of Maintenance: Shall include costs of labor, including social security, unemployment and other taxes and employee benefits, new and replacement process equipment costing less than $100,000, engineering, and non emergency repairs. Extraordinary and emergency repairs are defined in Section 7. C. Cost of Capital Improvement Proiects: Shall be reviewed at the annual NBSU meeting to be held on the second Monday in March at the Water Quality Control Plant. Capital improvement and replacements to NBSU facilities exceeding $100,000 will not be undertaken without the consent of the NBSU members; which consent will not be unreasonably withheld. d. Administration Costs: Shall include the management cost of day to day operation and maintenance, and the costs of administering the NBSU as lead agency. Each agency's share, CAdm, of the administration cost shall be determined by dividing each agency's total costs, CAg, for the NBSU programs, listed in Exhibit `B", by the sum of the total costs, CT, for the NBSU programs and the South San Francisco -San Bruno WQCP programs, listed in Exhibit `B", then multiplying the resulting ratio by the SSF-SB WQCP administration program costs less depreciation and debt service, Adm: 4 Agency CAdm = (CAg / CT) x Adm Examnle Calculation NBSU Combined Effluent Monitoring Cost ($): Cl NBSU Receiving Water Monitoring Cost ($): CZ NBSU Effluent Pumping Station Cost ($): C3 NBSU Dechlorination Cost ($): Ca Total NBSU Programs Costs ($): C5 = C, + C2 + C3 + C4 Total SSF-SB WQCP Programs Costs ($): C6 Total NBSU and SSF-SB WQCP Costs ($): CT= C5+ C6 Agency's annual average daily flow (mgd): q Total NBSU annual average daily flow (mgd): Q Agency's Fraction of Total NBSU flow: q / Q Agency's Share of Total NBSU Program Costs ($): CAg = (q / Q) x C5 Total of NBSU Programs and SSF-SB WQCP Programs Cost ($): CT Administration Costs (less depreciation and debt service) ($): Adm Agency's Fractional Share of Administration Costs: CAg / CT Agency's Share of Administration Costs: CAdm = (CAg / CT) x Adm 6. PAYMENT OF COSTS: On or prior to May 1 in each year of the term of this Agreement, the City of South San Francisco shall provide each NBSU member agency an estimate, properly substantiated, of their respective shares of the costs of operation, maintenance, capital projects, and administration of the Facilities for the succeeding fiscal year. Quarterly thereafter in such fiscal year commencing on July 1, each agency shall pay to the City of South San Francisco one-fourth (1/4) of the amount of such estimate. Any balance owed to the City of South San Francisco over thirty (30) days past due shall bear interest at the Local Agency Investment Fund rate. Any difference between such estimates and amounts actually expended by the City of South San Francisco for the payment of the costs of operation, maintenance and administration of the Facilities shall be adjusted to actual expenditures. Fiscal year means the period commencing on July 1 in each year and ending on the succeeding June 30. A check for overpayment or an invoice for underpayment shall be sent to member agencies thirty (30) days after close of the annual fund audit. 7. EXTRAORDINARY REPAIRS AND REPLACEMENT: Except for budgeted annual capital improvements, costs of extraordinary/emergency repairs to and replacements for the Facilities, exceeding One Hundred Thousand ($100,000) dollars shall not be undertaken, except in an emergency, by the City of South San Francisco without the written consent of each and all NBSU member agencies, which consent shall not be unreasonably withheld. Each NBSU 5 member's respective shares of such costs shall be prorated in accordance with the capacity rights shown in Exhibit "A" and shall be due and payable within forty five (45) days of billing therefor by the City of South San Francisco. a. Definition of Emergency: An emergency, for the purposes of this Section and Section 5, shall be defined as any NBSU facility failure that, if not corrected immediately, causes or will cause an NPDES Permit violation. The parties hereto shall maintain reserves therefore in a reasonable amount during the term hereof. South San Francisco shall make every effort to notify NBSU members in case of an emergency 8. RECORDS: The City of South San Francisco shall maintain records of its expenditures for the costs of operation and maintenance of the Facilities, including extraordinary repairs and replacements, and of the funds received from the NBSU member agencies therefor, which shall at all times be open to inspection by the NBSU member agencies, and which shall be kept for a minimum of five (5) years. The City of South San Francisco on or before January 31 following each fiscal year shall file with each participating agency an annual report of said expenditures and funds received. 9. MODIFICATIONS: Improvements, extensions and additions to the Facilities shall be made from time to time on terms and conditions agreed to in writing prior to commencement of the work by the parties hereto. 10. WASTE DISCHARGE REQUIREMENTS: The agencies shall at all times strictly comply with all statutes, regulations, and rules and orders of governmental agencies having jurisdiction over the Facilities. The agencies shall keep and maintain records of the flow and sampling and testing data that describes the composition of their discharge of effluent into the Facilities, which shall be made available for inspection by the parties hereto. 11. REGULATORY FINES AND CIVIL PENALTIES: Any costs associated with regulatory fines and civil penalties incurred during the term of this Agreement shall be borne by the NBSU members per ownership of capacity as shown in Exhibit "A'; except if such costs are 6 due to the sole negligence of the City of South San Francisco, in which case The City of South San Francisco shall pay all costs. 12. HOLD HARMLESS: Any agency failing to strictly comply with any statute, regulation, rule or order of any governmental agency having jurisdiction thereover relating to the Facilities shall hold harmless the other agencies hereto from any penalty, damages or liability whatsoever resulting therefrom, including costs of suit. 13. LIMITED RIGHTS: Except as expressly provided herein, nothing contained in this Agreement shall be deemed to give any party hereto any ownership rights or any other right, title or interest in or to the respective sanitary sewerage systems of the other parties hereto, or any part thereof. 14. INSURANCE: The City of South San Francisco shall maintain such casualty and other insurance relating to the Facilities as sound insurance practices dictate. The NBSU agencies shall be named as additional insureds thereunder as their respective interests appear. The premiums therefore shall be a cost of operation and maintenance of the Facilities. An insurance certificate shall be provided to each NBSU agency annually. If such insurance is not available or premium costs are unreasonable, the City of South San Francisco shall give notice to the parties and the parties shall either provide for coverage of their respective liability or establish a self-insurance program. 15. DELINQUENT PAYMENTS: In the event that any party hereto fails to make any payment provided within the time herein specified, interest at the rate of return for Local Agency Investment Funds shall apply to the unpaid balance. 16. BREACH OF COVENANTS: In case of a breach or alleged breach on the part of any party hereto in the performance of any of its obligations hereunder, not less than forty-five (45) days notice thereof shall be given said party by the other parties hereto, and said party shall have forty-five (45) days from the date thereof to cure said breach (provided that if cure cannot be completed within said period, it shall be sufficient that said party commence said cure within said period and complete the same with due diligence). In the event any party hereto shall fail to cure, or commence to cure, a breach within said forty-five (45) days as provided in YA this Section, the injured party or parties may file and prosecute to judgment a suit to recover damages, or in mandate, or in mandatory or prohibitory injunction, or other legal or equitable remedy. 17. BINDING ARBITRATION: In case any dispute should arise between the parties regarding the construction, meaning, or effect of this Agreement or any of its provisions, or the rights, privileges, duties or obligations of the parties hereto, or any of them, then upon written notice of an intention to arbitrate, given by one party to the other, such dispute shall be arbitrated and decided by arbitrators pursuant to the provisions of Section 1280, et seq., of the California Code of Civil Procedure, as amended, unless an action or suit is filed by the other party within fifteen (15) days after said notice is given. The persons appointed shall be trained and qualified in the matter to be passed upon. If the matters principally involve engineering, the arbitrators shall be registered civil engineers. If they involve accounting, the persons appointed shall be certified or licensed public accountants. If the matters involve law, they shall be passed upon by duly licensed attorneys. Where problems in controversy are complex in nature, to the extent practicable they shall be divided and the separate matters assigned to persons qualified. The arbitrators appointed shall be notified in writing, as well as the parties hereto, by the appointing party. If an arbitrator shall refuse to act or shall resign, another shall be appointed in his place by the party making the original appointment. If there is a failure or refusal to appoint an arbitrator for thirty (30) days after written demand, a party or arbitrator may apply to the Superior Court for San Mateo County and said Court shall designate and appoint such arbitrator or arbitrators. 18. CUMULATIVE: No remedy conferred hereby or by the law is intended to be exclusive of any other remedy, but each such remedy is cumulative and in addition to every other remedy and may be exercised without exhausting and without regard to any other remedy conferred hereby or by law. 19. WAIVER: No waiver of any default or breach of duty or contract shall extend to or shall affect any subsequent default or breach of duty or contract, or shall impair any rights or remedies herein. 8 20. DELAYS: No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default. 21. TERM: This Agreement shall commence upon the date hereof and may terminate as to any parry hereto at any time after twenty (20) years, provided that such party has tendered to the other parties hereto written notice of withdrawal not less than two (2) years preceding the date of termination, and on such termination pursuant hereto, any interests or rights herein, shall be negotiated and approved by all NBSU members. 22. NOTICES: Notices hereunder shall be given in writing and served personally or by registered mail upon the parties hereto, as follows: To South San Francisco: City Manager City Hall 400 Grand Avenue South San Francisco, CA 94080 To San Bruno: City Manager City Hall 567 El Camino Real San Bruno, CA 94066 To Burlingame: City Manager City Hall 501 Primrose Road Burlingame, CA 94010 To Millbrae: City Manager City Hall 621 Magnolia Avenue Millbrae, CA 94030 To Airport: Airport Director San Francisco International Airport P. O. Box 8097 San Francisco, CA 94128 9 23. SUCCESSORS: This Agreement shall inure to the benefit of, and be binding upon, the successors or assigns of any parry hereto, but no party hereto shall assign its rights hereunder to any party other than a duly formed public entity organized and existing under the laws of the State of California. 24. INTEGRATION: This Agreement integrates the complete understanding of the parties. No warrants or representations have been made by any parry to the others except as specifically set forth in this Agreement. There shall be no subsequent alteration, amendment, change or waiver or addition to this Agreement, unless reduced to writing and signed by the parties hereto. 25. HEADINGS: The headings in each paragraph herein are merely for convenience, and shall, under no circumstances, be used to interpret or otherwise construe this Agreement. 26. JOINT POWERS: Members of the NBSU will appoint a representative with knowledge of the operations of the system to attend an annual meeting for the purposes of review of the performance of the system and any issues that may have arisen during the year. The members will review the financial status of operations for purposes of providing input for the next fiscal year budget. Members are welcome to visit the site at anytime during normal daytime operational hours for the purpose of reviewing operations of the system. The annual meeting will take place in the month of March on the second (2"d) Monday. 27. TIME IS OF THE ESSENCE: Time is of the essence hereof. IN WITNESS WHEREOF, the parties hereto duly authorized have executed this Agreement the day and year first above written. 10 Signature Page 3 of 5 APPROVED AS TO FORM: CITY OF BURLINGAME ATTEST m m 13 LTA Signature Page 3 of 5 APPROVED AS TO FORM: By: 1�17 fff%To y CITY OF BURLINGAME %i MAYOR By: CATHY BAYLOCK 13 ATTEST