Loading...
HomeMy WebLinkAbout[09a] Sewer Use AgreementCITY ©F ST. JOSE PH MEETING DATE: February 3, 2011 AGENDA ITEM: Sewer Use Agreement SUBMITTED BY: Sub Committee BOARD /COMMISSION /COMMITTEE RECOMMENDATION: Council Agenda Item 9 a PREVIOUS COUNCIL ACTION: The Council has established a subcommittee to work with St. Benedict to draft a new sewer use agreement. The Committee consisted of the following: Bob Loso (City Council), Randy Sabart (City Engineer), Terry Thene (Public Works Director), Lori Bartlett (Finance Director), Judy Weyrens (City Administrator), Tom Jovanovich (City Attorney), John Greer (Attorney, St. Benedict), Sue Palmer (College St. Benedict), Anne Oberman (College St. Benedict), S. Kara Hennes (Monastery St. Benedict). BACKGROUND INFORMATION: The Committee has met a number of times to draft a new sewer use agreement. We are closing in on the terms of the Agreement and are presenting a draft agreement with some minor changes to be made. The committee members present will discuss the status of the agreement and terms. BUDGET /FISCAL IMPACT: ATTACHMENTS: Request for Council Action .... ............................... Draft Sewer Use Agreement REQUESTED COUNCIL ACTION: Informational at this time. Sewer Use Agreement between the City of St. Joseph Minnesota and the College of St. Benedict and Monastery of St. Benedict This agreement made and entered into this day of , 2010, by and between the City of St. Joseph, Minnesota, hereinafter referred to as the "City ", and the Sisters of the Order of St. Benedict and the College of St. Benedict hereinafter referred to collectively as "St. Benedict." RECITALS A. The City acts as the provider of wastewater conveyance and treatment services through the St. Cloud Area Wastewater System for the City of St. Joseph. B. in 1987, the City and St. Benedict entered into a Sewer Construction and Sewer Use Agreement, hereinafter referred to as SUA, regarding St. Benedict's discharge of waste into St. Joseph's Wastewater System. C. The City and St. Benedict have mutually agreed to enter into anew agreement which will re- establish the basis for the ongoing relationship for St. Benedict's use of the St. Joseph Wastewater System. AGREEMENT Article I — Service Conditions A. Purpose. The purpose of the Agreement is to establish mutually acceptable standards for measuring flow and billing procedures for St. Benedict's use of the St. Joseph Wastewater System. B. Geographic Area. This Agreement affects property owned by St. Benedict which is located within the plat known as " BENEDICT," a copy of which is attached as Exhibit A to this Agreement. Certain buildings located within BENEDICT plat shall be specific exceptions to this Agreement, either because they are separately connected to the St. Joseph Wastewater System or because such buildings have their own septic system. Any building separately connected to the St. Joseph Wastwater System shall be metered for water usage and billed as all general users within the City. Any building currently connected to its own septic system shall be allowed to continue with such septic system and not be required to connect to the City's system. The buildings which are located within BENEDICT plat, but which are exceptions to this Agreement, are identified on the attached Exhibit B. All property owned by St. Benedict which is not located within the BENEDICT plat shall be billed as all other general users of the City per Ordinance 43. C. Rights of Use. All property of St. Benedict identified on Exhibit A shall be entitled to discharge into the St. Joseph Wastewater System unless any parcel of such property subsequently becomes sold or transferred to a non - college or monastery entity. Sewer Use Agreement Page No.1 D Operation and Maintenance. 1. The City and St. Benedict shall ccntinue to have full and total ownership of their respective wastewater infrastructure. Infrastructure includes, but is not limited to main lines, service lines, lift stations, meters, and manholes. 2. Neither party shall be liable to the other for damages in case of an operational system or system failure not due to its negligence or which is caused by an event beyond its control. E Measuring Flow. St. Benedict shall install City approved metering devices ( "Meters ") to measure discharge flow from the St. Benedict facilities into the St. Joseph Wastewater System and pay for all costs of the purchase and installation of said meters. The installation, operation, maintenance, and calibration shall be the responsibility of St. Benedict and meet the standards and specifications of the City. All data must be routed directly to the City SCADA Control System for monitoring by City staff. 1. The meters shall be calibrated t"Fice a year by the City approved vendor. The continuing costs for calibrating the metering system shall be paid by St. Benedict. A certified copy of the inspection and test results shall be prov ded to St. Benedict and the City promptly after completion. 2. St. Benedict shall perform regular maintenance upstream of the meters to prevent obstruction and to maintain flow. If the City determines that the discharge is obstructing the system, the City will direct St. Benedict to remedy the situation. All costs will be the responsibility of St. Benedict. 3. The Meters must be installed at all major entry points in the St. Joseph Wastewater System. St. Benedict currently has two main discharge connections to the St. Joseph Wastewater System, one south of St. Joseph Lab School in the east /west access drive and one on the east side of 3`d Avenue SW. 4. The City will require that the rehabilitation of the manholes in which the meters are to be installed meet industry standards for confined space including approved lighting. All costs associated with the rehabilitation shall be the responsibility of St. Benedict and once rehabilitated the ongoing maintenance is also the responsibility of St. Benedict. 5. St. Benedict shall provide access easements to the City to inspect the Meters and to allow for measurements. Such easements must be presented to the City before commencing installation of metering devices. 6. St. Benedict will verify that sewer discharge for all buildings utilizing the St. Joseph Wastewater system is either flowing through the main discharge connections or metered separately. Buildings metered separately will be billed as all other general users. Buildings not flowing to the main discharge connections must have City meters installed on the potable water source. All meter costs are the responsibility of St. Benedict. St. Benedict shall be responsible for the purchase, installation, and operation of any and all additional meters. The meters must meet the specifications and standards of the City. Sewer Use Agreement Page No. 2 7. St. Benedict shall verify to the City that all private sewer lines connecting to the main discharge connections are in good working order and aligned properly. Any modifications or repair that may be necessary shall be the responsibility of St. Benedict. 8. In the event of failure of St. Benedict's metering device, for the purpose of determining billing amounts pursuant to this Agreement, it will be assumed that during any period of failure of the measuring device, St. Benedict will be charged the same volume as during the same period during the three preceding years. If the most recent three -year flow record is unavailable, or if the flows have changed significantly over the preceding three years, St. Benedict will be charged an average of the prior six months and the subsequent six months. At the end of the subsequent six month period, the amount billed based on the prior six months will be averaged with the subsequent six months and a revised bill will be forwarded to St. Benedict. Article II — Billing and Payment A. Scope. St. Benedict shall be classified as a contract user and will be billed as all commercial /industrial /residential users as indentifled in Ordinance 43 of the St. Joseph Code of Ordinances. St. Joseph shall not amend Ordinance 43 in any manner which would conflict with the terms of this Agreement without consent of St. Benedict. This Agreement shall not prohibit the City from charging a Sewer Access Fee (SAC) as provided in Ordinance 44, nor shall it prohibit the City from specially assessing St Benedict pursuant to Minnesota Statutes for sanitary sewer improvement projects. B. Measurement of Flow. For the purposes of calculating charges as described in this Agreement, the flow shall be the total measurement from the flow meters at St. Benedict's points of discharge into the St. Joseph Wastewater System. St. Benedict facilities that do not discharge into the main discharge connections must be metered at the water source and will be billed on such reading as all non - contract users in the City. The City will calculate the sewer bill based on the user rate as calculated pursuant to Ordinance 43 of the St. Joseph Code of Ordinances and the Line Charge as described below. C. User Rate. Charges for sewer service shall include a usage fee for discharge and a fixed monthly cost entitled "Line Charge." D. Charges for Service No later than the tenth day of each odd numbered month, the St. Joseph Maintenance Staff will compile the St. Benedict meter readings transmitted to the City SCADA control system to calculate the total flow for the two month billing period. Facilities not metered through the SCADA control system will be read by the St. Joseph Maintenance Staff the first week of each odd number calendar month. Using the rates established in Ordinance 43, the flow discharge will be multiplied by the commercial, industrial, and institutional user rate. 1. Line Charge St. Benedict will pay a Line Charge equal to the measured wastewater flow divided by the average gallons used by a residential home (274 gallons per day). The calculated gallons will then by multiplied by the Line Charge established by Ordinance 43. 2. Usage Fee. St Benedict will pay a Usage Fee based on the rate established in Ordinance 43 for commercial, industrial, and institutional users multiplied by the measured flow. The rate will be determined in the fall of the preceding year pursuant to the Sewer Rate Ordinance (Ord 43) Sewer Use Agreement Page No. 3 3. Billing Terms. St. Benedict shall be billed every odd numbered calendar month with payment due by the 2O`h of each even numbered calendar month. Any balance remaining unpaid thirty (30) days from the date issued shall be considered delinquent and accrue a delinquent surcharge as adopted annually by the St. Joseph City Council. f ------ Formatted: Indent: Left: 0" E. Financial Reporting. As a contract user utilizing a significant portion of the St. Joseph Wastewater System, St. Benedict shall have the right to inspect all management and operating records of the City's Wastewater System. These records shall be made available to the designated representative of St. Benedict upon reasonable request and notice. The City will not have an obligation to create supplemental financial or rate analysis to St. Benedict. F. Billing Transition. St. Benedict shall continue to be billed under the past billing practices, charged 45% of all applicable expenses until th a meters have been operating correctly for two full calendar months. The City will begin billing St. Benedict under the terms of this agreement after the meters are installed and have been operating for a two month period. After one year of metering, the City will calculate the percentage of discharge for each party of this agreement. If St. Benedict is discharging less than 45 %, the City will credit St. Benedict for the sewer charges in 2010 that were based under the terms of the 1987 Agreement. If St. Benedict is discharging more than 45 %, St. Benedict will be charged the additional amount for the year 2010. Article III — Disputes and Remedies A. Dispute Resolution. The parties acknowledge that disputes regarding the interpretation or application of this Agreement may arise from time to time, and agree that, subject to the other provisions of this Agreement; each shall attempt: to resolve such disputes according to the provisions of this Article, unless otherwise provided in this Agreement. The parties do not intend to limit the kind of disputes or disagreements arising under this Agreement, which may be submitted to the Dispute Resolution procedures set forth herein. B. Request for Clarification. In the event: of an issue or question by either party regarding any aspect of this Agreement, both parties shall attempt to resolve that issue or answer that question amicably before proceeding to the remedies set forth in this Article. Such resolution efforts shall include communications between the parties outlining the particular issues, proposed solutions, any other items necessary to resolve the dispute. The parties agree that the request for clarification and any responses thereto shall be completed no later than thirty (30) calendar days after the request for which clarification is made. C. Negotiation. When a disagreement or dispute shall arise over interpretation or application of any provision of this Agreement and such dispute does not constitute an event of default, the Parties will each direct staff members as they deem appropriate to meet at a mutually convenient time and place to attempt to resolve the disagreement or dispute through negotiation. D. Mediation /Arbitration. When the parties to this Agreement are unable to resolve the disputes, claims or counterclaims, or are unable to negotiate an interpretation or application of any provision of Sewer Use Agreement Page No. 4 this Agreement, the parties may mutually agree in writing to seek relief by submitting their respective grievances to mediation and /or binding arbitration. If both parties agree to submit the dispute to binding arbitration, the following arbitration provisions shall apply: 1. Arbitration shall be conducted by a single arbitrator engaged in the practice of law; 2. Minnesota's Uniform Arbitration Act, Minnesota Statues, Sections 572.08 to 572.30, shall govern the arbitrability of all disputes; 3. The arbitrator shall not have authority to award punitive damages; 4. The arbitrator's award may be entered in any court having jurisdiction thereof; 5. Each party shall bear its own costs and attorney's fees, and shall share equally in the fees, and expenses of the arbitrator. E Waiver. The exercise of any of the remedies set forth in this Article shall not limit or constitute a waiver of the parties' rights to pursue additional remedies set forth herein, except where otherwise agreed to in writing by the parties. Article IV — Mutual Release of Claims Under 1987 Sewer Use Agreement A. The City and St. Benedict agree that this Agreement shall supersede and terminate the 1987 Sewer Construction and Sewer Use Agreement regarding St. Benedict's discharge of waste into the St. Joseph Wastewater Svstem. B. The City and St. Benedict, their respective agents, legal representatives, assigns, successors and principles do hereby mutually release, extinguish and settle all claims, liabilities, promises, actions, damages and the like, whether known or unknown, that either party could have asserted or did assert against the other party arising out of the 1987 Sewer Construction and Sewer Use Agreement between St. Benedict and the City. This release of claims also releases any claims for attorney's fees, costs, disbursements or any other claim arising out of the 1987 Sewer Construction and Sewer Use Agreement. C. The City shall pay to St. Benedict $16,534 as an adjustment for past payments made by St. Benedict under the 1987 Sewer Construction and Sewer Use Agreement (See Exhibit C for a breakdown of the adiustment). D. The City acknowledges that St. Benedict has paid for all its current capacity in the St. Joseph sewer treatment system and that payment for future use and additional capacity shall be controlled by this Agreement, dated 2011. Article 1V — Additional Conditions A. Governing Law. This Agreement is made pursuant to, and shall be constructed in accordance with the laws of the State of Minnesota. a Term and Termination. This Agreement shall take effect upon execution by the parties and shall be effective for a term of 15 years. The Agreement shall thereafter be automatically renewed for Sewer Use Agreement Page No. 5 consecutive terms of five years each if neither party has given notice of an intent to terminate the Agreement at least 90 days prior to the end of the term. The parties agree to meet every five years during the term of the Agreement to discuss projections for future growth, development, and sewer usage. C Modification /Amendment to this Agreement. Except as otherwise provided herein, this Agreement shall not be modified, amended, or altered except upon a written agreement by both parties. In the event that a party hereto request to meet regarding a proposed modification or amendment of this Agreement, the requests shall: 1. be made to the other party in writing; 2. the parties shall thereafter meet at least one time at a mutually agreed upon time and place to discuss the proposed modification or amendment within ninety (90) days of the date of receipt by the non - requesting party of the written request; 3. state the reason for the meeting. D No Rights to Third Parties. This Agreement is between the City and St. Benedict, and creates no rights in third parties as beneficiaries, even if the area being served is contained within the geographic area described in Article 1(B) of this Agreement. E Severability. In the event that any provision of the Agreement is determined and adjudged to be unconstitutional, invalid or illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect, and the parties hereto shall negotiate in good faith and agree to such amendments or modifications of or to this Agreement or other appropriate actions as shall, to the maximum extent practicable in light of such determination, implement and give effect to the intentions of the parties hereto. F. Headings and Captions. Headings and Captions contained in this Agreement are for convenience only and are not intended to alter any of the provisions of this Agreement. G. Repealer. The terms and conditions of this Agreement, including all attachments, shall constitute the entire Agreement between the City and St. Benedict, superseding all prior agreements and negotiations. This Agreement shall supersede and replace the existing Sewer Use Agreement. H. Notice. Any notices required underthe provision ofthis Agreement shall be in writing and sufficiently given if delivered in person or sent by US mail, postage prepaid, as follows: If to the City: City Administrator City of St. Joseph PO Box 668 St. Joseph MN 56374 Sewer Use Agreement If to St. Benedict: Vice President of Finance and Administration College of St. Benedict Business Office 37 College Ave. S. St. Joseph, MN 56374 And Treasurer/ Director of Finance Sisters of the Order of St. Benedict Page No. 6 Dated this day of ST. BENEDICT , 2010 104 Chapel Lane St. Joseph, MN 56374 COLLEGE OF ST. BENEDICT By Name Title MONASTERY OF ST. BENEDICT By Name Title Sewer Use Agreement Page No. 7 Dated this CITY ATTEST day of , 2010 CITY OF ST. JOSEPH By Name Title By Name Title Sewer Use Agreement Page No. 8 Exhibit B Buildings owned by St. Benedict and located within BENEDICT plat as of October 15, 2010, which shall be exceptions to the Agreement: a. The Maintenance Shop; and b. The "Hermitages" (2). Buildings having their own septic system: a. The "Barn "; and b. The "Lodge." Sewer Use Agreement Page No. 10 Exhibit B O A N N 00 N d� C _ dW m 'f] a h � Exhibit C m g Ix/1 0 3 O�p 1^/1 a a u 5 O N O N I /q hl OD q ID ID 1D 1/� N r7 \D 1t M O O4 N ID N V' O m O1 N ID m h ID m 0 n 0 IMO O pNppp N v�1 .a-1 �D N N CN�.i] �-;1 h �0�p oo �mIppi pppp� a V M N I et M ID •f ppV m Mi 00 C'i w ' Rr.- bC� O ID V W 1 O h h of b m " to Vi Vi rt ri m e O, 4 N M d m M M N N N U ZIA 2 w p (a v 00 M mI W ' h m h {� n. Oi Oi CO �Nmp N N ,-1 a O h IND N N N r-4 �/�ppV tivO� {m11 N O^ N a V h N OM1 emmmi��] Vp m m m m m h T �1 � c n w n n w � � aoD�j w' o g g o o c o .i m � h In u1 ]n ]n q h o n n o ni Ea v1 m �i]J�t.?a .ir cn CL W ac q � ��at� a $ �° X aE X ZR X a � JEX b o m m m n lD lD m ao ca m m XXX X �p aE .+ m -! ry 'qq •p a C O O V M M b IOD ]a/1 0 M w 100 m `fin N W U n M M fan m O O L O O E _ 1�O/1mmQq ,bbb 8 b b b Ci dab O O Q 0 0 0 0 0 0 0 0 0 0 0 0 0 vmi m o N N N N N H N rn H CC m O m wi9 2OE �Zn p X ID bpi \b Nm O2 V MV hM M M M 1+M1 pp N ,0-1 ehi eM-1 6 6 m g Ix/1 0 3 O�p 1^/1 a a u 5 n w h h M $q oo . -1 , vi o 0 o Go 00 m a o Id Id 06 ui h O ID IO ID 00 Op N m If1 O - N h o1 1R o o o ao w ti N O m 06 a; V1 N ICI IC ID ID 10 J` n 0D Cd 06 m O N M V1 111 L/1 V1 Ill VI IA ]A a/] 41 V1 1O ID h rn ooh In m w- h h lD a oo h lD a G INOmlmnP, 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O O 0 0 0 0 O O V m O g 0 0 0 q O p p 0 0 0 g 0 0 c g a p o p O M 00 W n M N 0 01 m d IMO H 001 A m h Ih,1 n IN II M M N M1 N QW1 p0Npp N O M h V '�Y N N h 00 ID R It m ID O 1 N ID m It 'a h /0 00 N P t` ri ri 06 00 N 00 Di w m m r] V ID 1` O O O M n M U1 VI m N m v1 ID ID ID IO V] ID n• OD m ey N N timi N C N b ^m m 0�mpp pOp�1 ]Q0-�11 N p p�1 pMp�1 Qa] IQn� 1Q0� Ohl 0Q0� pO]I CpI d u 001 001 01 m O1 m O1 01 Ot Ol Ot Of Of Ot O Q > N H 1'� rl ri er ei .-1 .-I ei ]-1 eel ri r1 TI N VIp�� m Oi pw (n pmt Omf Oa'f cn (n qm Of Om1 O O .i .i rf ]-1 m N N H rl N m rl ei N N IO 0 0 0 0 0 0 0 N N N N N N N N to oSC, o og N N N N N N N N a cam' u t 0 C O N W ' a W N 7 ✓ N J In T 0 i A V V � � w j N I p, J O Y V d a i 1 i i 1 ] 1 � 3� i 1 i I 1 J w h V N h O O O 001 h eq N O pp�1 h N 8 0d Id OC ff1 Vi Oml Q I O~1 O � ]Nf1 � 1h0 t�0 Oh0 ." N N`Q-'�0 sC b �.O-1 N N i 1 y, cn Y pl d i u a m Wy p a i i E w i Q m v ai 1 a CL f l r p v ~M c c 0 i N$ � -0-q 1 N N N Q Q f N LO a I. > v e4 p N N = s ca 13 Inbu x i L d i RL 0 s o° cc a W v j N 0 O O a ppN O O O� O i N 1 O ] i ? ] w _ U � E u o .e N � w IMO O pNppp N v�1 .a-1 �D Omi O ID V W 1 O h h of b m " to Vi Vi rt ri m e 4 N M d m M M N N N Li O M M M W ID O N r 2. ZIA 2 w p (a v 00 M mI W ' h m h {� n. Oi Oi CO �Nmp N N ,-1 a ll0 ID 00 O V N A M N h IND N N N r-4 �/�ppV tivO� {m11 N O^ N a V h N OM1 emmmi��] Vp m m m m m h T �1 N N N N N N N N N N N N m N N N N N N M fn N N N n w h h M $q oo . -1 , vi o 0 o Go 00 m a o Id Id 06 ui h O ID IO ID 00 Op N m If1 O - N h o1 1R o o o ao w ti N O m 06 a; V1 N ICI IC ID ID 10 J` n 0D Cd 06 m O N M V1 111 L/1 V1 Ill VI IA ]A a/] 41 V1 1O ID h rn ooh In m w- h h lD a oo h lD a G INOmlmnP, 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O O 0 0 0 0 O O V m O g 0 0 0 q O p p 0 0 0 g 0 0 c g a p o p O M 00 W n M N 0 01 m d IMO H 001 A m h Ih,1 n IN II M M N M1 N QW1 p0Npp N O M h V '�Y N N h 00 ID R It m ID O 1 N ID m It 'a h /0 00 N P t` ri ri 06 00 N 00 Di w m m r] V ID 1` O O O M n M U1 VI m N m v1 ID ID ID IO V] ID n• OD m ey N N timi N C N b ^m m 0�mpp pOp�1 ]Q0-�11 N p p�1 pMp�1 Qa] IQn� 1Q0� Ohl 0Q0� pO]I CpI d u 001 001 01 m O1 m O1 01 Ot Ol Ot Of Of Ot O Q > N H 1'� rl ri er ei .-1 .-I ei ]-1 eel ri r1 TI N VIp�� m Oi pw (n pmt Omf Oa'f cn (n qm Of Om1 O O .i .i rf ]-1 m N N H rl N m rl ei N N IO 0 0 0 0 0 0 0 N N N N N N N N to oSC, o og N N N N N N N N a cam' u t 0 C O N W ' a W N 7 ✓ N J In T 0 i A V V � � w j N I p, J O Y V d a i 1 i i 1 ] 1 � 3� i 1 i I 1 J w h V N h O O O 001 h eq N O pp�1 h N 8 0d Id OC ff1 Vi Oml Q I O~1 O � ]Nf1 � 1h0 t�0 Oh0 ." N N`Q-'�0 sC b �.O-1 N N i 1 y, cn Y pl d i u a m Wy p a i i E w i Q m v ai 1 a CL f l r p v ~M c c 0 i N$ � -0-q 1 N N N Q Q f N LO a I. > v e4 p N N = s ca 13 Inbu x i L d i RL 0 s o° cc a W v j N 0 O O a ppN O O O� O i N 1 O ] i ? ] w _ U � E u o .e N