HomeMy WebLinkAbout[08b] Update - St. Benedict Sewer Use AgreementCM OF NT. JOSKPH
MEETING DATE: February 17, 2011
Council Agenda Item 8(b)
AGENDA ITEM: Update — St. Benedict Sewer Use Agreement
SUBMITTED BY: Administration
BOARD /COMMISSION /COMMITTEE RECOMMENDATION:
PREVIOUS COUNCIL ACTION: The City of St. Joseph has been providing St. Benedict (College and
Monastery) with sewer services as provided in the 1986 Sewer Use Agreement.
BACKGROUND INFORMATION: The City and CSB mutually agreed that the agreement was in need of
review and update. Over the past two years the City has worked with CSB to resolve any outstanding
billing and service issues. The new agreement has CSB being billed bi- monthly, using actual sewer
readings. In addition, they pay a line charge for each 274 gallons of water used.
BUDGET /FISCAL IMPACT:
ATTACHMENTS: Request for Council Action ... ............................... 8(b)
Draft Sewer Use Agreement ..................... I.......... 8(c): 1 -14
REQUESTED COUNCIL ACTION: Authorize the Mayor and Administrator to execute the Sewer Use
Agreement between the City of St. Joseph and St. Benedict.
THIS PAGE INTENTIONALLY LEFT BLANK
Sewer Use Agreement Between the City of St. Joseph Minnesota and the
College of St. Benedict and the Sisters of the Order of St. Benedict
This agreement is made and entered into this day of , 2011,
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 the "1987 Sewer Use Agreement," regarding St. Benedict's
discharge of waste into the St. Joseph Wastewater System, hereinafter referred to as the
"Wastewater System."
C. The City and St. Benedict have mutually agreed to enter into a new agreement which will reestablish
the basis for the ongoing relationship for St. Benedict's use of the Wastewater System.
AGREEMENT
Article I— Service Conditions
A. Purpose. The purpose of this 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
Wastewater 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 Wastewater 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.
Sewer Use Agreement Page No.1
C. Rights of Use. All property of St. Benedict identified on Exhibit A shall be entitled to
discharge into the Wastewater System unless any parcel of such property subsequently becomes sold or
transferred to a non - college or non - monastery entity.
D. Operation and Maintenance.
1. The City and St. Benedict shall continue 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 are 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 Wastewater System and shall 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 shall 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.
The Meters shall be calibrated twice 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 provided to St. Benedict and the City promptly after
completion.
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 Wastewater System. St.
Benedict currently has two main discharge connections to the 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
6. St. Benedict will verify that sewer discharge for all buildings utilizing the 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
Sewer Use Agreement Page No. 2
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.
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 Meters, 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 average 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. A "significant change" in flow will be defined for purposes of this Article I, E, Paragraph
8 as an increase in flow which is greater than a 10% change between the prior six -month average
daily flow and the prior three -year average daily flow.
Article II — Billing and Payment
A. Scope. St. Benedict shall be classified as a contract user and will be billed as a contract user
as indentified in Ordinance 43 of the St. Joseph Code of Ordinances. The City has the right to amend
Ordinance 43 so long as the amendment does not conflict with the specific terms of this Agreement.
Any amendment of Ordinance 43 which changes the specific terms of this Agreement must be
consented to, in writing, by St. Benedicts. The parties agree that the City has the right to change the use
rates each year pursuant to the provisions of Ordinance 43. This Agreement shall not prohibit the City
from charging a Sewer Access Fee 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 Meters at St. Benedict's points of
discharge into the 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 "Sewer Usage Fee" for discharge and a
fixed monthly cost entitled "Sewer Line Charge."
Sewer Use Agreement Page No. 3
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
City 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 contract user rate.
1. Sewer 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. Sewer Usage Fee. St. Benedict will pay a Usage Fee based on the rate established in
Ordinance 43 for commercial, industrial, and contract users multiplied by the measured flow. The
rate will be determined in the Fall of the preceding year pursuant to the Sewer Rate Ordinance
(Ordinance 43)
3. Billing Terms. St. Benedict shall be billed every odd - numbered calendar month with
payment due by the 201h 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.
E. Financial Reporting. As a Contract user utilizing a significant portion of the
Wastewater System, St. Benedict shall have the right to inspect all management and operating records
of the 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 the 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
Sewer Use Agreement Page No. 4
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 communication between the parties outlining the particular issues, proposed solutions, and 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 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:
law;
Arbitration shall be conducted by a single arbitrator engaged in the practice of
2. Minnesota's Uniform Arbitration Act, Minnesota Statues, Sections 572.08 to 572.30,
shall govern the arbitrability of all disputes;
and
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 attorneys' 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 Use Agreement regarding St. Benedict's discharge of waste into the Wastewater System.
Sewer Use Agreement Page No. 5
B. The City and St. Benedict and 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
attorneys' 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 adjustment).
D. The City acknowledges that St. Benedict has paid for all its current capacity in the
Wastewater System and that payment for future use and additional capacity shall be controlled by this
Agreement, dated . 2011.
Article V — 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.
B. Term and Termination. This Agreement shall take effect upon execution by the parties
and shall be effective for a term of fifteen years. The Agreement shall thereafter be automatically
renewed for consecutive terms of five years each if neither party has given notice of an intent to
terminate the Agreement at least ninety 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 request shall 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; and
The request shall state the reason for the meeting.
Sewer Use Agreement Page No. 6
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 1.13. of this Agreement.
E. Severability. In the event that any provision of this 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 and shall, to the maximum extent practicable in light of such
determination, implement and give effect to the intentions of the parties hereto.
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 1987 Sewer Use Agreement.
H. Notice. Any notices required under the provision of this 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: If to St. Benedict:
City Administrator Vice President of Finance and Administration
City of St. Joseph College of St. Benedict
P.O. Box 668 Business Office
St. Joseph, MN 56374 37 College Avenue S
St. Joseph, MN 56374
And
Treasurer /Director of Finance
Sisters of the Order of St. Benedict
104 Chapel Lane
St. Joseph, MN 56374
Sewer Use Agreement Page No. 7
Dated this .� day of 2011
ST. BENEDICT:
COLLEGE OF ST. BENEDICT
By 564,
Name
Title
SISTERS OF THE ORDER OF ST. BENEDICT
By A�
Name SA lac N o ,
Title T
Sewer Use Agreement Page No. 8
Dated this day of . 2011
Hia
CITY OF ST. JOSEPH
By
Name
Title
ATTEST:
By
Name
Title
Sewer Use Agreement Page No. 9
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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:
The "Barn "; and
b. The "Lodge."
Sewer Use Agreement Page No. 13 Exhibit B
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