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Attachment 2 - Agreement Between the Town of Los Gatos and the West Valley Sanitation DistrictAGREEMENT BETWEEN THE TOWN.OF LOS GATOS AND WEST VALLEY SANITATION DISTRICT REGARDING IMPLEMENTATION OF A STORM WATER MANAGEMENT PROGRAM TLWN CLERK AGR:� IHH• REro /99,, - 6 0 TABLE OF CONTENTS B O• Page No. RECITALS 1-3 PART I - DEFINITIONS A. Storm Sewer System 4 B. Catch Basins 4 C. Runoff 4 D. Town Manager 4 E. Manager/Engineer 4 F. Cost 4 G. Capital Cost 4 H. Operation and Maintenance 4 Cost 5 I. General Administrative Cost 6 J. Fiscal Year 6 K. Work Plan 6 PART II - AGENCY RELATIONSHIP CREATED A. Appointment of District as Town Agent 6 B. Duties of the District 7 C. Duties Retained by the Town 7 D. Indemnity 8 PART III - ADDITIONAL DUTIES OF THE PARTIES A. Additional Duties of the Town B. Additional Duties of the District 11 12 PART IV - FINANCIAL PROVISIONS A. Annual Submission of Town's Estimate 12 B. District's Estimate 13 C. Establishment of Storm Sewer Charge 13 D. Annual Review of the Storm Sewer Charge 14 E. Limited Use of Funds 14 F. Payment to District and Town 14 PART V - TERM OF THE AGREEMENT; RIGHTS AND OBLIGATIONS UPON TERMINATION A. Term of the Agreement 15 B. Rights upon Termination 15 C. Survival of Indemnities 15 PART VI - MISCELLANEOUS PROVISIONS A. Amendments 16 B. Disputes 16 C. Successors and Assigns 16 IN WITNESS WHEREOF 17 ATTACHMENT2 AGREEMENT BETWEEN THE TOWN OF LOS GATOS AND WEST VALLEY SANITATION DISTRICT REGARDING IMPLEMENTATION OF A STORM WATER MANAGEMENT PROGRAM Agreement, made and entered into this / "7- day 1992, by and between the Town of Los Gatos, a m nicipal corporation of the State of California, hereinafter referred to as "Town", and West Valley Sanitation District of Santa Clara County, a county sanitation district organized and existing pursuant to the Health and Safety Code of the State of California hereinafter referred to as "District," RECITALS WHEREAS, pursuant to the 1987 amendments to the Federal Clean Water Act, the United States Environmental Protection agency has promulgated final regulations requiring cities to obtain a National Pollutant Discharge System (NPDES) permit to discharge storm sewers to receiving waters; and WHEREAS, said final EPA regulations have set forth an extensive and exhaustive course of action in which demands have been placed on cities to properly maintain and monitor their storm sewer systems, and in the future, could contain requirements for significant reconstruction; and [D1/WVSD/T] 1 -WHEREAS, Town, along with twelve other cities, the County of Santa Clara, and the Santa Clara Valley Water District, have obtained an NPDES permit on June 20, 1990, which allows and requires Town to regulate and manage its storm sewer system in accordance with requirements developed by the Santa Clara Valley Non -point Source Control and Storm Water Management Program; and WHEREAS, District's boundaries encompass the vast majority of the Town and therefore Town's storm sewer system is entirely within District's boundaries; and WHEREAS, District, among other things, is empowered to construct, maintain, and operate a refuse and industrial waste disposal system in conjunction with its sanitary sewer system; and WHEREAS, Town's storm sewer system conveys all waste water flow which is excluded from sanitary sewers including debris, pollutants, chemicals, offal, leaves and cuttings, trimmings from trees, shrubs and grass, in organic refuse and rubbish and, garbage which accumulate on streets and pavement. Much of said "non -point source pollution" is carried untreated by the Town's storm sewer system to the Southern portion of San Francisco Bay. During some storm events, the resulting wastewater flow in the District's sanitary sewer system and at the Wastewater Pollution Control Plant more than [D1/WVSD/T] 2 doubles, thereby creating a substantial burden on the District's sanitary sewer system; and WHEREAS, therefore Town's storm sewer system and District's sanitary sewer system are integrally related to each other such that District's sanitary sewer system is directly impacted by Town's storm sewer system; and WHEREAS, in order to conserve and protect its sanitary sewer system, as well as to assist Town in maintaining and operating a refuse and industrial waste disposal program through its storm sewer system, District is authorized under law to enter into this agreement; and WHEREAS, Town wishes to designate District as its agent for the performance of various functions required to be performed by Town under the terms of the Clean Water Act, EPA regulations, and the terms and conditions of its NPDES permit; and WHEREAS, the parties wish to clarify their respective rights and responsibilities under the above -described relationship through this agreement, NOW, THEREFORE, for and in consideration of their mutual covenants, promises, and obligations, Town and District do hereby agree as follows: Part I - DEFINITIONS Except where the context otherwise requires, the following definitions of this Section shall govern the (D1/WVSD/T] 3 construction of this agreement: A. Storm Sewer System (sometimes termed "storm sewer") shall mean any pipe, conduit, or sewer of the Town designed or used for the disposal of storm and surface waters and drainage including unpolluted cooling water and unpolluted industrial process water, but excluding any community sanitary sewer system. B. Catch Basins shall mean box -like underground concrete structures with openings in curbs and gutters designed to collect water from streets and pavements. C. Runoff shall mean water from rain, lawn watering, melting snow, or irrigation that flows over the surface of the ground. D. Town Manager shall mean the Town Manager, or designee, of the Town of Los Gatos. E. Manager/Engineer shall mean the Manager/Engineer of West Valley Sanitation District of Santa Clara County. F. Cost shall mean the amount reasonably expended in performing a particular act or operation when categories of cost are mentioned, reference to generally accepted accounting methods uniformly applied by the party claiming the cost is intended. G. Capital Cost shall mean any and all costs and expenses, except those described in Part t, Section }I, paragraph 1 below reasonably incurred in connection with the acquisition, construction, and installation of a [D1/WVSD/T] 4 facility, which is part of the storm sewer system, and which adds capacity to the existing system; including, but not limited to: 1)- Those related to acquisition, purchase, or lease of land, easements, rights of way or other interests in land. 2) Those related to acquisition, construction, and installation of a facility, or part thereof, including costs of labor, materials, and equipment, amount paid to contractors, engineering costs, cost of preliminary and final reports, designs, plans and specification and legal costs. 3) All other costs reasonably incurred in connection with or incidental to the above. H. Operation and Maintenance Cost shall mean any and all costs and expenses reasonably incurred in the administration, operation, maintenance and repair of any facility in the storm sewer system, including, but not limited to: 1) Items ordinarily recognized as capital items (e.g. interests in land) when reasonably necessary to maintain the capacity of the storm sewer system had when new. 2) Replacement of portions of an existing facility damaged or destroyed as a result of accident or natural disasters. [ D 1 /wVSD/T ] 5 -3) Damages and settlements paid in the course of, or because of, threatened or actual legal actions, except 1) actions between the parties to this agreement 2) payments which are reimbursed from insurance or other sources 3) payments concerning condemnation or inverse condemnation of a capital cost item 4) liability insurance premiums. I. General Administrative Cost shall mean a portion of the total general expenses of the Town or District which cannot be directly related to operation and maintenance of a particular storm sewer system facility but is expressed as a percentage of the Town's or District's total operational expense. J. Fiscal Year shall mean the period from July 1 through June 30 of the following year. K. Work Plan shall mean a schedule of activities for the proposed fiscal year including specific goals, objectives and milestone dates. The plan shall include a summary of personnel, contractual assistance, if necessary, and materials for each objectiie. Part II - AGENCY RELATIONSHIP CREATED Appointment of District as Town Agent shall mean District is hereby appointed as Town's agent for purposes of performing certain duties as described hereinafter which duties are those for which Town is obligated to perform under the terms of NPDES permit [D1/WvSD/T] 6 issued to Town on June 20, 1990 as may hereafter be amended. B. Duties of the District The following duties of the District shall be: 1) Plan, implement and enforce delegated responsibilities of a storm water pollution prevention program consisting of: (a) locating and eliminating illicit connections. (b) investigating illegal dumping. (c) administering an industrial permit program, including review of industry storm waste pollution prevention plans, processing industry notices of intent, and reviewing industrial monitoring programs. 2) Plan and implement a public/industry notification and education program on storm water pollution prevention including the marking of storm sewer system catch basins specified by the Town. 3) Inspect,clean and maintain the Town's storm sewer system. 4) Any duties, which are unspecified herein, but which are required to be performed under the terms of the Town NPDES permit. C. Duties Retained by the Town: The following duties are retained by the Town: [D1/WVSD/T] 7 1) Participate in and interpret the requirements of the county -wide non -point source program through the Santa Clara Valley Water District. 2) Implement the household hazardous waste disposal program. 3) Develop a storm water management plan, including preparation of an updated storm sewer master plan, policies, design standards, performance standards, and a computer based system mapping. 4) Schedule,. engineer and construct storm sewer system improvements and system rehabilitation. 5) Perform street sweeping and storm flooding relief. 6) Perform incidental storm drain maintenance as determined to be necessary by the Town. D. Indemnity 1) Each party agrees to indemnify, defend, and hold harmless the other party (its officers, agents, and employees) from'any claim or demand by reason of any injury to or death of any person or damage to any property which may be made against that party (its officers, against, and employees) caused by, or alleged to have been caused by, any act or omissions, negligent or otherwise, of the other under this agreement. [D1/WVSD/T] 8 `2) Notwithstanding the indemnity, described in subparagraph 1) Town hereby agrees to indemnify, defend, and hold harmless the District from any claim or demand by reason of any injury to or death of any person or damage to property which may be made against the District (its officers, agents, or employees) due to flooding caused by, or alleged to have been caused by, the Town's storm sewer system. Notwithstanding this provision, the District shall indemnify Town for any injury, death, or property damage due to flooding proximately caused by the negligence or wilful act of any District employee, agent, or officer. Town, however, retains the obligation to defend, at Town's sole cost, the District from any such claim or demand for injury, death, or damage due to flooding regardless of how said injury death or damage is caused . Town shall keep the District and its insurance carrier informed of the status of any and all claims or demands with respect to any flooding event above described, and District or its insurance carrier retains the right to engage its own legal counsel to defend any action brought against it under the provisions of this paragraph, provided, however, that Town shall reimburse District or its insurance carrier for any legal costs, including reasonable attorney's fees, reasonably [D1/WVSD/T] 9 necessary in defending the District from any claim or demand described in this paragraph. 3) Notwithstanding the indemnity described in subparagraph 1) above, Town agrees to indemnify defend, and hold District (its officers, agents, and employees) harmless from any action brought by any party having standing which contests the validity or legality of this agreement, or that of any ordinance, resolution, minute order, regulation, or administrative ruling made by either the Town or the District which is adopted by that agency to carry out the purposes of this agreement. This indemnity by the Town includes any action brought contesting the validity of any fee or charge imposed by the District to finance the program described in this agreement or its method of collection. Notwithstanding anything to the contrary contained herein, District shall remain responsible, on a pro-rata basis, for any monetary, awards, judgments, orders for restitution, or settlements up to an amount equal to the total fees collected by, and allocated to the District, and Town shall not be responsible for indemnifying District for such awards, judgments, orders for restitution or settlements to the extent of its pro-rata share of the fees collected by and allocated to the District. 4) Notwithstanding the indemnity described in subparagraph 1) above, Town agrees to indemnify, defend [D1/WVSD/T] 10 and hold District harmless from any fines, civil penalties, or other costs imposed by any governmental agency having jurisdiction, resulting from either parties' operation or maintenance of the Town's storm sewer system; provided, however, Town shall not indemnify District against any fines, civil penalties or other costs, which are determined to be due solely to the District's negligence or wilful misconduct. 5) Each party will, at its sole cost and expense, obtain and maintain in full force and effect throughout the entire term of this agreement adequate insurance to cover each party's responsibilities under this agreement. Part III - ADDITIONAL DUTIES OF THE PARTIES A. Additional Duties of the Town 1) Upon execution of this agreement, Town shall forthwith adopt all necessary ordinances, and resolutions to implement its duties under this agreement including ordinances regulating storm discharge requirements, suspension of service, and other enforcement measures regarding improper discharges into the Town's storm sewer system. 2) The Town shall have the sole responsibility of enforcing all laws; ordinances, and regulations regarding the Town's storm sewer system including the controlling of improper discharges into the system. [D1/WVSD/T] 11 "3) The Town, as a discharger, shall have the sole responsibility regarding all dealings with the Santa Clara Valley Non -point Source Control and Storm Water Management Program, the California Regional and State Water Quality Control Boards, E.P.A., and all other agencies having jurisdiction with respect the operation and maintenance of the Town's storm sewer system under its NPDES permit. B. Additional Duties of the District 1) Upon execution of this agreement, the District shall forthwith adopt all necessary ordinances, and resolutions to implement its duties under this agreement including an ordinance or resolution adding a storm sewer service charge to the District's schedule of fees and charges. 2) The District shall be responsible for imposing and collecting all fees and charges necessary to fund the operation and maintenance cost and general administrative costs incurred by both parties in operating and maintaining the Town's storm sewer system. Capital costs as defined in this agreement shall be funded solely by the Town through sources other than the District's storm sewer service charge. Part IV - FINANCIAL PROVISIONS A. Annual Submission of Town's Estimate At least, 120 days prior to the beginning of the fiscal year, Town shall submit, in writing, to the [D1/WVSD/T] 12 District its estimate of its maintenance and operation and general administrative costs for the new fiscal year that the Town will incur as a result of the performance of its -duties under this agreement. The Town shall be responsible for maintaining sufficient data to justify its costs described herein. B. District's Estimate During that same period, District shall estimate its own operation and maintenance and general administrative costs for the new fiscal year that it will incur as a result of the performance of its duties under this agreement. A work plan supporting these cost estimates shall be submitted to the Town for its review and aproval. The District will be responsible for maintaining sufficient data to justify its costs described herein. C. Establishment of Storm Sewer Service Charge Utilizing the two estimates described above, together with establishing a reasonable reserve, the District Board of Directors shall, after public hearing, establish a storm sewer service charge by resolution. Said resolution shall set forth the specific amount of the fee, describe the specific services to be performed, describe the estimated cost of the services to be performed, describe the reasonable relationship between [D1/WVSD/T] 13 the fse and the service to be performed, and set forth the time of payment and manner of collection. D. Annual Review of the Storm Sewer Charge Om an annual basis the Board of Directors shall review the charges to determine whether the amount is reasonably related to the service being provided and whether the reserve fund is still needed. Said charge may, at such meeting, be adjusted up or down. E. Limited Use of Funds The revenues raised by the payment of the storm sewer charge shall not be co -mingled with other District funds but shall be budgeted within a special storm sewer system account to be used solely to perform District work on the Town's storm sewer system or to reimburse the Town for the performance of its services on its storm sewer system. F. Payment to District and Town Upon receipt of the revenue derived from the imposition of said charge, the District shall immediately reimburse itself and the Town based upon the estimates previously submitted. If the actual expenditures exceed any estimate, then the actual amount shall be reimbursed to the District or Town, as the case may be, to the extent that there are reserve funds in the storm sewer system account. [D1/WVSD/T] 14 - Part V - TERM OF THE AGREEMENT; RIGHTS AND OBLIGATIONS UPON TERMINATION A. Term of the Agreement This agreement shall be in full force and effect for a period of time beginning on July 1, 1992, and extending to and including the 30th day of June, y-- ONE 1995, and is automatically renewed for additional , ikh (1)AAh year periods unless either party, at least one year before termination, gives written notice to the other that it does not wish to renew this agreement. This agreement can also be terminated at any time by written agreement of the parties or by operation of law. If not otherwise terminated, this agreement shall terminate on June 30, 2012. B. Rights Upon Termination Upon termination, the balance remaining in storm sewer system account shall be distributed to the parties to the extent that each has incurred actual costs with respect to the operation and maintenance of the Town's storm sewer system. All remaining sums shall be refunded to the property owners from which the funds were collected on a pro-rata basis. C. Survival of Indemnities All indemnity provisions contained in this agreement survive ,its termination. [D1/WVSD/T] 15 Part VI - MISCELLANEOUS PROVISONS A. Amendments This agreement is amendable only by means of written instrument executed with express authorization by the Town Council and the District Board of Directors. B. Disputes If either party contends that the other has breached or is breaching this agreement or that this agreement is inequitable, its governing body shall so notify the governing body of the other party and both governing bodies (subject to all laws concerning the meetings of public agencies, governing bodies) shall meet jointly to resolve their differences. No action or suit concerning the terms or performance of this agreement shall be commenced, nor shall there be any act of rescission or notice of termination of this agreement other than the sort of notice provided in Part E(1) until the joint meeting has been held. The parties waive any statute of limitations as to any cause of action which is subject of the notification and meeting proceedings by this part during the time, not to exceed a reasonable time, required for the notice to be given and the meeting to take place. C. Successors and Assigns The agreements, covenants, conditions, limitations, restrictions and undertakings contained in [D1/WVSD/T] 16 this agreement apply to and bind the successors and assigns of the parties. The rights and obligations of this agreement may not be assigned by any party without the written consent of the other. IN WITNESS WHEREOF, the parties hereto have executed this agreement on the date set forth beside their signatures, to become effective on 4 / 1992. v lit Dated ATTEST: Town Clerk Dated: ATTEST: TOWN OF LOS GATOS By JLJ TOWN MANAGE APPROVED AS TO F Town Attorney WEST VALLEY SANITATION DISTRICT ' OF SANTA CLARA COUNTY By APPROVED ASO FO District Counsel [D1/WVSD/T] 17