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HomeMy WebLinkAbout5.841 Original ContractAmendment No. 1 to Wastewater Agreement Between The City of Port Angeles and The Lower Elwha Klallarn Tribe This Amendment is entered into this 4 day of May, 2010 by and between the CITY OF PORT ANGELES "the City and THE LOWER ELWHA KLALLAM TRIBE "the Tribe For and in consideration of the mutual benefits to be derived herefrom, the Parties recite, covenant, and agree as follows: 1. The Parties entered into a Wastewater Agreement Between the City of Port Angeles and The Lower Elwha Klallam Tribe on May 30, 2007. That Agreement is incorporated by this reference and may hereafter be referred to as "the Agreement." 2. Paragraph 2 of the Agreement, Facilities, is amended by deleting subsection f, as follows: f. 3. Paragraph 2 of the Agreement, Facilities, is amended by substituting a new subsection f as follows: f. Construct facilities that will store flows from the Tribe's service area or construct alternate facilities within the City system, to be negotiated with the City, so as not to contribute to the freauencv and or volume of a combined sewer overflow event.. 4. As amended, the Agreement is ratified and confinned. CITY OE PORT ANGELES LOWER ELWHA KLALLAM TRIBE /l By: Marv- Approved as to form: r William E. Bloor, City Attorney B ehaii- Attest: Ji fi ssa Hurd, City Clerk G.I LEGAL\AGREEMENTS &CONTRACTS'2010 Agcmts &Contracts \LEKT- City.Sewer Agent Modification 1 042010.doc Resolution 33 -10 Approval of Attached Amendment No. 1 to Wastewater Agreement Between the City of Port Angeles and The Lower Elwha Klallam Tribe WHEREAS, the Lower Elwha Community Council is the governing body of the Lower Elwha Klallam Tribe in accordance with the Treaty of Point -No- Point, January 26, 1855, the Tribe's Constitution and Bylaws, approved by the Secretary of the Interior on April 29, 1968, pursuant to the Indian Reorganization Act of June 18, 1934; and WHEREAS, the Business Committee of the Lower Elwha Community Council is the duly elected representative body of the Tribe, and is responsible for ensuring the Health, Safety, Education, Welfare, and Social and Economic Development, Natural Resources, Law and Order, Judicial Services, Housing and to preserve and protect Culture and Treaty Rights, and otherwise promote the interests of our Indian people; and WHEREAS, under Article IV, Section 1 of the Constitution, the Tribe possesses the governmental authority to enter into agreements with other governments, including the United States, Section 1(a), and to manage tribal lands for the benefit of the Tribe, Section 1(b); and WHEREAS, the Tribe has been working diligently for many years to accomplish the removal of the Elwha and Glines Canyon Dams on the Elwha River, and the Elwha River Ecosystem and Fisheries Restoration Act (EREFRA) of 1992 authorizes the removal of these dams to restore the ecosystem and native anadromous fisheries of the Elwha River and directs that the Interior Department mitigate for the impacts of dam removal; and WHEREAS, the National Park Service (NPS) has been designated as the lead agency within the Interior Department to carry out the Department's dam removal, ecosystem, and mitigation responsibilities under EREFRA; and WHEREAS, NPS's mitigation responsibilities include the funding and construction of a wastewater system for the Tribe, which will be located both on trust lands of the Tribe within the Reservation and on other lands within and outside the Reservation; and WHEREAS, the Tribe and the City of Port Angeles entered into a Wastewater Agreement in May, 2007, to provide for transport of wastewater from the Lower Elwha Reservation and adjacent trust lands to the City's wastewater treatment plant, and WHEREAS, the Tribe and the City have agreed it is necessary to execute a minor modification to the May, 2007, Wastewater Agreement to provide that tribal wastewater facilities are constructed in such a way as to not contribute to the frequency or volume of any combined sewer overflow event, and WHEREAS, the Tribe and City have negotiated the attached Amendment No. 1 to the May, 2007, Wastewater Agreement, which amendment has been fully reviewed and developed by River Restoration staff and the Office of General Counsel. THEREFORE BE IT NOW RESOLVED THAT, the Lower Elwha Klallam Business Committee hereby authorizes and approves the attached Amendment No. 1 to Wastewater Agreement Between the City of Port Angeles and the Lower Elwha Klallam Tribe, and authorizes and directs the Tribal Chairperson or her authorized representative to execute this Agreement on behalf of the Tribe. Certification The foregoing Resolution 33 -10 was presented to the Lower Elwha Community Council at the regularly scheduled and duly noticed monthly meeting of May 3, 2010, without a quorum thereof present but with the foregoing set out in writing on the agenda, and the Business Committee at that same meeting, with 4 members present, constituting a quorum, on May 3, 2010, voted to adopt Resolution 33 -10 by a vote of for; 6 against, and abstaining. Frances G. Charles, Chairperson Counci Member RETURN ADDRESS: City of Port Angeles P.O. Box 1150 Port Angeles, WA 98362 5. 8~ J 2007-1202182 Page 1 of 14 Agreement Port Angeles City Of Clallam County WaShington 05/31/2007 09 27 56 AM 1111 ~r~ Nr.~" 1~..,,~t.IU, 1~~~,~I,rl:IW I'I~ ~~Il ~IY 1IIII WASTEWATER AGREEMENT Between The City of Port Angeles and The Lower Elwha Klallam Tribe No Parcel numbers ,4 e Ct.~ WASTEWATER AGREEMENT BETWEEN THE CITY OF PORT ANGELES AND THE LOWER ELWHA KLALLAM TRIBE 1. Background and Purpose: This is an intergovernmental agreement between the City of Port Angeles, a code city of the State of Washington ("the City"), and the Lower Elwha Klallam Tribe, a federally recognized Indian Tribe operating under a constitution and bylaws approved by the Secretary of the Interior ("the Tribe"). This agreement is made pursuant to the general Intergovernmental Agreement between the Lower Elwha Klallam Tribe and the City of Port Angeles (October 3,2001). The purpose of this agreement is to provide for transport of wastewater from the Lower Elwha Reservation and tribal trust lands east of the Elwha River per the attached map, which is provided for demonstrative purposes only, to the City's wastewater treatment plant for processing in order to prevent public health emergencies due to actions by the Federal Government under the Elwha River Ecosystem and Fisheries Restoration Act (Public Law 102-495). This agreement is not intended to limit the Tribe in purchasing additional sewer services for tribal lands where such services are not prohibited by the Washington Growth Management Act and the City has capacity for additional connections. 2. Facilities: Facilities needed to implement this agreement include: a. A wastewater collection system combining vacuum and gravity systems for areas within the Tribe's service area. b. Vacuum pumps and a lift station. LegaLBackup2007 Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/2512007 - 1 - c. A standby generator for vacuum pumps and lift station. d. A force main from the lift station across Dry Creek to a manhole on the gravity sewer main located on the City's Milwaukee Railroad right-of-way. e. A gravity sewer main on the City's Milwaukee Railroad right-of-way from east of Dry Creek to the City's existing system at Milwaukee Drive and 18th Street. f. In-pipe storage or off-line storage located in the gravity sewer section of the system to store flows from the Tribe's service area so as not to contribute to the frequency and or volume of a combined sewer overflow event. g. Odor control at the lift station and force main discharge manhole. h. A supervisory control and data acquisition system for the City to operate valving on the storage facility(ies). i. Surface restoration to match existing conditions or as required by the City. 3. The Tribe's Obligations: a. The Tribe will design and construct wastewater collection, storage, and conveyance facilities connecting tribal lands to the City's wastewater collection and treatment system in accordance with current City and Washington State Department of Ecology standards. To accommodate future population density growth in the area served by the gravity sewer, if requested by the City, any additional capacity of the gravity sewer will be designed and constructed at the City's expense. LegaLBackup2007Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/25/2007 -2- b. The Tribe's facilities will be designed to handle the Tribe's current and projected Reservation and tribal trust land wastewater loads and to prevent any contribution to combined sewage overflows in the City's system. c. The Tribe will own, operate, and maintain all such facilities, with the exception of those facilities located within the City and its existing Urban Growth Area (UGA) per the attached map; provided that, in consideration and support for the City's undertaking to operate and maintain them the Tribe shall transfer to the City, at no cost, additional facilities that come to be located in the City or its UGA when either the City or UGA limits are expanded as well as any necessary easements. d. The Tribe agrees that the City may allow hook-ups to that portion of the facilities within the City and its UGA; provided that the total flow from all new hook-ups allowed by the City does not result in an increased hydraulic head or decreased hydraulic capacity that exceeds five percent of the designed system capacity without the written consent of the Tribe. e. The Tribe will pay the following fees to the City: 1) A System Development Charge for 400 Equivalent Water Meters (EWM). The amount shall be the charge for 400 EWMs as determined by the applicable provisions of the Port Angeles Municipal Code at the time funds to pay that charge are appropriated by Congress and included in the Annual Funding Agreement between the Tribe and the National Park Service, except that if such funds are appropriated and included in the Annual Funding Agreement for Federal Fiscal Years 2009 or 2010 the amount shall be the charge in effect during Calendar 2009. Lega'-Backup2007Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/25/2007 -3- 2) A Milwaukee Drive connection charge of $240 per EWM connected at the time the Tribe's facilities become operational; provided that this fee will not apply in the event that such fees become prohibited by Washington State law. 3) A Milwaukee Drive connection charge of $240 per EWM for each additional EWM added after the Tribe's facilities initially become operational; provided that the fee will not apply in the event that such fees become prohibited by Washington State law. f. For 2007 the Tribe will pay a monthly wholesale rate of $2.94 per one hundred cubic feet of water consumed by the Tribe's customers plus one monthly single-customer administrative fee of $9.30. These rates will be adjusted by the City in accordance with paragraph 4. j. and Chapter 13.65 PAMC. The City will assure that the Tribe does not pay a disproportionate share of system costs. No rate adjustments attributable to correction of the City's combined sewer overflow problems will be imposed on the Tribe. g. The Tribe will adopt and enforce the pretreatment standards of Chapter 13.06 PAMC or any successor chapter, if applicable, for all wastewater not being received from residential users. h. The Tribe will pay the one-time fee listed in Subsection 3.e.1 prior to service being provided, the Milwaukee Drive charges as they accrue, and the other charges on a monthly basis. i. The Tribe will report to the City monthly on the number of hookups/connections and water consumption on which to base an accurate billing statement. LegaLBackup2007Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/2512007 -4- 4. The City's Obligations: a. The City will accept and treat, in compliance with all applicable federal, state, and local regulations and permits, all wastewater conveyed to its system by the Tribe from the Lower Elwha Reservation and tribal trust lands east of the Elwha River not inside the City's Urban Growth Area. b. The City agrees to assist the Tribe in obtaining construction permits, easements, and any other necessary authorizations as needed by the Tribe for construction and operation of wastewater facilities within the City's limits or on any other City property. c. The City will provide system capacity for the equivalent of 400 EWMs for family units and commercial facilities calculated per Chapter 13.69 PAMC, a copy of which is attached and incorporated as Exhibit A. d. The City will accept, own, operate, and maintain that portion of the facilities, located within its present or future Urban Growth Area and City boundaries along with any necessary easements. e. The City will pay all of the costs of planning, designing, constructing, operating, and maintaining any gravity sewer capacity in excess of that needed to serve the equivalent of 400EWMs for family units and commercial facilities on the Reservation and tribal trust lands. f. The City will provide the Tribe a meaningful opportunity to consult in all decision-making processes affecting rates charged to the Tribe under this agreement, including notification and invitation to attend at the City's Utility Advisory Committee meetings. The parties understand that the preceding sentence does not confer on the Tribe any voting rights in the City's meetings. LegaLBackup2007Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/25/2007 -5- g. Based upon aggregate meter readings provided to the City by the Tribe, the City will provide the Tribe a monthly statement showing consumption and the total amount due. In the interest of privacy, the Tribe will not provide individual meter readings. h. Subject to terms agreed upon by the parties and provided the City's system has adequate capacity, the City will provide treatment for wastewater generated from future Tribal facilities that are within the City's Urban Growth Area on the same terms as such service is provided to others and without regard to the limitation established in paragraph c above. i. The City shall assess the Milwaukee Drive connection charge per Chapter 13.67 PAMC to the extent allowed under Washington State law. j. The City shall calculate the wholesale wastewater rate per the attached example. See Exhibit B. 5. Effective Date: This agreement shall be effective from the date the last signature is affixed and shall remain in force until terminated. Upon any such termination: (1) the Tribe shall be liable for monthly service charges pro-rated to the termination date; (2) each party shall retain ownership of wastewater facilities as provided in this agreement; (3) if necessary, any decommissioned facilities will be drained, flushed, and abandoned in place or capped pursuant to applicable Federal, State, County and City laws and regulations. 6. Dispute Resolution: In the event of a dispute regarding interpretation of or compliance with any provision of this agreement, the parties shall submit such dispute to non-binding mediation. If agreement is not reached within 45 days of the mediation, unless such time is extended by agreement of the parties, then the parties may use other legal remedies to resolve the dispute, including arbitration or litigation. In the event either Lega'-Backup2007Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/2512007 -6- party files lawsuit regarding interpretation of or compliance with any provision of this agreement, the Tribe waives its sovereign immunity and consents to the jurisdiction of the courts of the state of Washington and further agrees that venue shall be in Clallam County Superior Court; provided that such waiver is limited to actions brought by the City for equitable relief, for damages arising under this agreement, or for fees due and owing to the City. 7. Term of Contract: This Agreement shall be effective as of the date of execution of this Agreement by both Parties. The initial, and minimum, term of this Agreement shall be for twenty (20) years from the date service commences. Until terminated, this Agreement shall automatically renew for successive periods of twenty (20) years upon the expiration of the initial term or of any renewal term. This Agreement may be terminated upon mutual agreement of both Parties at any time. In addition, ten (10) years from the effective date of the Agreement or any time thereafter, either Party may give to the other written notice of termination. If written notice of termination is given, this Agreement shall terminate on (a) the termination date stated in the notice or (b) the date ten (10) years after written notice of termination is given, whichever is later. All liabilities and obligations accrued hereunder or payments due under this Agreement shall survive termination and shall continue in effect until satisfied. 8. Amendment: This agreement may be amended by written agreement of the parties. Dated this 30th day of May, 2007. CITY OF PORT ANGELES Lega/~Backup20C7Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/25/2007 LOWER ELWHA KLALLAM TRIBE ~W1 tw ~~ QA\ul- By: Attest: Ad~~ jjfWA. Becky J. on, ity Cler - 7- Exhibit A CHAPTER 13.69 SYSTEM DEVELOPMENT CHARGE Sections: 13.69.010 13.69.020 13.69.030 13.69.040 13.69.050 13.69.060 13.69.070 13.69.080 13.69.090 13.69.100 13.69.110 Purpose. Definition. Water System Development Charge. Sewer System Development Charge. Equivalent Water meter Factors. Addition to Other Charges. Collection of System Development Charges. Exemption. Credit for Inclusion of Property in Local Improvement District. Review of System Development Charge Rates Penalty. 13.69.010 Purpose. The City Council has determined that it is reasonable and in the public interest to enact and impose a "system development charge" pursuant to RCW 35.92.025 for the purpose of recovering a proportionate share of the actual capital costs of water and sewer facilities from those properties within the utility service area which, as a part of their development and use, create needs for those facilities. (Ord. 2746 SI, 2/12/93) 13.69.020 Definition. "Equivalent water meter" shall mean a water service connection to a residential unit, commercial use, or industrial use, consisting of a 3/4" diameter service line with a 5/8" or 3/4" meter. (Ord. 2746 S2, 2/12/93) 13.69.030 Water System Development Charge. A. The City Council hereby finds and determines that the capital cost of the City's water system including pumps, well, distribution and transmission lines, reservoirs, rights of ways and easements, has been borne by the City and its water system users. Pursuant to RCW 35.92.025, since such water system will be utilized by newly connecting properties, it is appropriate to establish a reasonable connection charge in order that such property owners bear their equitable share of the capital cost of the system. B. Beginning January 1, 2006, the City Council further determines that $1,200.00 per equivalent water meter represents a reasonable basis for a fair water system development charge that property owners newly connecting to the City's water system should bear as their equitable share of the capital cost of the system. Beginning January 1, 2007, the City Council further determines that $1,230.00 per equivalent water meter represents a reasonable basis for a fair water system development charge that property owners newly connecting to the City's water system should bear as their equitable share of the capital cost of the system. Beginning January 1, 2008, the City Council further determines that $1,265.00 per equivalent water meter represents a reasonable basis for a fair water system development charge that property owners newly connecting to the city's water system should bear as their equitable share of the capital cost of the system. C. In addition to other fees imposed by ordinance or pursuant to agreements, there is hereby imposed, upon the owners of property seeking to provide water service to their property LegaLBackup2007Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/30/2007 -8- Exhibit A by connecting to the City's water system, a water system development charge determined by multiplying the total number of equivalent water meter factors for the service(s) to be installed by the amount specified in 13.69.030B (Ord. 3226 S5, 1/01/2006; Ord. 3068, 12/06/2000; Ord. 3035 S 1 (part), 11/26/99; Ord. 2888 S 1, 9/29/95; Ord. 2746 S3, 2/12/93) 13.69.040 Sewer System Development Charge. A. The City Council hereby finds and determines that the capital cost of the City's sewer system including the treatment plant, collection lines, pump stations, rights of ways and easements, has been borne by the City and its sewer system users. Pursuant to RCW 35.92.025, since such sewer system will be utilized by newly connecting properties, it is appropriate to establish a reasonable connection charge in order that such property owners bear their equitable share of the capital cost of the system. B. The City Council further determines that beginning January 1, 2006, $870.00 per equivalent water meter represents a reasonable basis for a fair sewer system development charge that property owners newly connecting to the City's sewer system should bear as their equitable share of the capital cost of the system. The City Council further determines that beginning January 1, 2007, $1,000.00 per equivalent water meter represents a reasonable basis for a fair sewer system development charge that property owners newly connecting to the City's sewer system should bear as their equitable share of the capital cost of the system. The City Council further determines that beginning January 1, 2008, $1,125.00 per equivalent water meters represents a reasonable basis for a fair sewer system development charge that property owners newly connecting to the City's sewer system should bear as their equitable share of the capital cost of the system. C. In addition to other fees imposed by ordinance or pursuant to agreements upon the owners of property seeking to provide sewer service to their property by connecting to the City's sewer system, they shall pay to the City a sewer system development charge determined by multiplying the total number of equivalent water meter factors for the water service, which contributes to sewer system loadings, to be installed by the amount specified in Paragraph B above. (Ord. 3227 S2, 1/01/2006; Ord. 3068, 12/06/2000; Ord. 3035 S 1 (part), 11/26/99; Ord. 2888 S2, 9/29/95; Ord. 2746 S4, 2/12/93) Lega'-Backup2007Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/30/2007 -9- Exhibit A 13.69.050 Equivalent Water Meter Factors. The equivalent water meter factors for determining the proportional equivalent of various sizes of water meters to a 3/4" diameter service line with a 5/8" meter shall be in accordance with the following data provided in A WW A Standard C700-77: Meter Size (inches) 5/8 3/4 1 1-1/2 2 3 4 6 8 Operating Capacity( gpm) 20 30 50 100 160 300 500 1,000 1,600 Equivalent Water Meter Factor 1.00 1.50 2.50 5.00 8.00 15.00 25.00 50.00 80.00 If the actual water meter size installed is increased to provide for fire sprinkler installation, then the Director of Public Works shall determine the appropriate equivalent water meter factor based upon a standard installation for the use without fire sprinklers. (Ord. 2746 95,2/12/93) 13.69.060 Addition to Other Charges. The system development charge for water and sewer imposed pursuant to this Ordinance shall be in addition to any permits and the connection charge or tap charge for the actual cost of connecting to the City's water and/or sewer systems and to all other charges imposed by ordinance. (Ord. 2746 96,2/12/93) 13.69.070 Collection of System Development Charges. The system development charges imposed in this Ordinance shall be payable at the time application for a sanitary sewer service and/or water service connection is made. Charges so collected shall be considered revenue of the water/wastewater utility to be used solely for capital improvements. The connection shall not be made until all charges have been paid. (Ord. 2746 97,2/12/93) 13.69.080 Exemption. No such charge shall be made where the owner or previous owner of the property paid for the water main or sewer line giving service to the property by special assessment or lump sum payment. (Ord. 2746 98,2/12/93) 13.69.090 Credit for Inclusion of Property in Local Improvement District. If the property for which a system development charge has been paid is subsequently included in a local improvement district for the construction of sewers and/or water mains of a similar nature, the amount so paid shall be credited to the assessment against such property and such amount shall be paid from the water/sewer fund to such improvement district fund. (Ord. 2746 99,2/12/93) LegaLBackup2007Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/30/2007 - 10- Exhibit A 13.69.100 Review of System Development Charge Rates. The system development charge for water and sewer imposed by this Ordinance shall be periodically reviewed by the City Council and the rates charged shall be revised to reflect changes in the capital cost of the systems occurring since the preceding review. (Ord. 2746 S10, 2/12/93) 13.69.110 Penalty. In the event any connection to the City water or sewer system is made without paying the fees required by this Ordinance, the owners of the property to which the connection is made shall be required to pay a fine in the amount of two hundred dollars. Utility service shall be terminated until all fees and penalties owing have been paid. (Ord. 2746 S11,2/12/93) LegaLBackup2007Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/30/2007 . 11. Exhibit B Rate Calculation for the $2.94 ccf charge*. The current commercial industrial base fee is $9.30. Approximately $7.10 of the $9.30** per month charge is associated with administrative costs such as billing and meter reading and not associated with processing sewage. In view of this, the remaining $2.20 shall be added to the cubic foot charge. It is estimated that the average Reservation residential water user would consume 760 cubic feet per month of water, the hundred cubic foot (cct) charge would be approximately [$2.65 plus $0.29] ($2.20 divided by 7.60 cct) for a total charge of $2.94 per ccf. * Utilizing January 1, 2007 wastewater rate ** $2 is to $8.45 as $2.20 to $9.30, ratio btwn former rates and current rates utilized W t t R t S as ewa er ae ummary 2003 2004 2005 2006 2007 2008 Commercial Ilndustrial Base $ 8.45 $ 8.45 $ 8.45 $ 8.85 $ 9.30 $ 9.80 Commercial/Industrial Base $ $ $ $ CSO (additive) N/A N/A 0.45 0.95 1.50 2.05 Commercial/Industrial each $ 2.39 $ 2.39 $ 2.39 $ $ $ 100 CF 2.50 2.65 2.80 Commercial/Industrial each $ 0.13 $ $ $ 100 CF CSO (additive) N/A N/A 0.30 0.50 0.70 Data based upon rates published in the P AMC LegaLBackup2007Agrmts & Contracts LEKT-Clty Sewer Agreement - Fmal 5/25/2007 - 12- 11m map IS not mtended to be used as a legal descrIptIon 11us map/drawmg IS prodr-Kcd by the City of Port Angeles for Its own usc and purposes Any other use of thIS map/drawmg shall not be the responslblltty of the elly . Vernwl Datwn = NAVD 88 HOrizontal Datum = NAD 83/9 J ~ N 0.25 I I Miles Map Legend LEKT Tnballands :-.-.-., I · .... _. _.1 City of Port Angeles Cl Hydrography