Reimbursement Agreement for the City of Cotati Water Use Efficiency Program 1 For accessibility assistance with this document, please contact Sonoma County Water Agency’s Technical Writing Section at (707) 547-1900, Fax at (707) 544-6123, or TDD through the California Relay Service (by dialing 711).
RV:s:\techw\agreements\2223-069.docx version: 5/4/2023 9:21:00 AM TW 22/23-069
Reimbursement Agreement for the
City of Cotati Water Use Efficiency Program
This agreement (“Agreement”) is between the Sonoma County Water Agency, a body corporate and politic of the State of California (hereinafter “Sonoma Water”), and City of Cotati (hereinafter “City”).
RECITALS
A. City and Sonoma Water share the goal of promoting increased water use efficiency in order to reduce operating costs, avoid or defer capital improvement costs associated with expansion of water supply and wastewater disposal systems, minimize associated environmental impacts, and meet the criteria and standards of state and federal regulatory agencies.
B. The Restructured Agreement for Water Supply (“Restructured Agreement”) authorizes Sonoma Water to implement and fund water conservation measures that are cost-effective and will reduce water demands on Sonoma Water’s water transmission system.
C. The Sonoma-Marin Saving Water Partnership (Partnership) was established on December 14, 2010, through a Memorandum of Understanding (MOU) between Sonoma Water and the following public agencies: City of Cotati, City of Rohnert Park, City of Santa Rosa, City of Sonoma, City of Petaluma, Town of Windsor, Valley of the Moon Water District, North Marin Water District, and Marin Municipal Water District. The MOU, which allows for members of the Partnership to participate in Regional Programs offered through Sonoma Water, was amended in 2018 (First Amended MOU) to determine the amounts to be budgeted and expended by the Partnership for an additional 10 years to 2028.
D. Sonoma Water and City have cooperated to develop, implement, and fund a water use efficiency program (“Program”) and City desires Sonoma Water’s continued assistance in developing and implementing City’s water use efficiency measures as described in Exhibit A, which is an integral part of this Agreement.
E. City is requesting services and materials from Sonoma Water for implementation and administration of City’s Program, and will reimburse Sonoma Water for its costs.
F. Sonoma Water and City do mutually desire to cooperate in the implementation of City’s Program.
AGREEMENT
City and Sonoma Water agree as follows:
1. RECITALS
A. The above recitals are true and correct and are incorporated herein.
Reimbursement Agreement for the City of Cotati Water Use Efficiency Program 2
2. DEFINITIONS
A. For the purposes of this Agreement the following terms and definitions shall be used:
1) Measures: Components of the Program are identified in Exhibit A. 2) Participants: City-approved water customers who apply to participate in individual Measures as described in Exhibit A.
3) Program: Collectively, the water use efficiency Measures described in Exhibit A, and related activities Sonoma Water has agreed to perform that may be reimbursed by City under this Agreement.
4) Sonoma Water-run Program: Water use efficiency Measures described in Exhibit A and implemented for City by Sonoma Water.
3. COORDINATION
A. City shall coordinate work with Sonoma Water’s Representative. Contact information:
Sonoma Water City
Sonoma Water Representative:
Paul Piazza or assigned personnel
City Representative:
Craig Scott or assigned personnel
404 Aviation Boulevard 201 West Sierra Avenue
Santa Rosa, CA 95403-9019 Cotati, CA 94931
Phone: 707-547-1968 Phone: 707-665-3620
Email: [email protected] Email: [email protected]
4. CITY'S RESPONSIBILITIES
Assist Sonoma Water with administration of Program as follows:
A. Direction: Provide Sonoma Water Representative with requested policy and/or direction during Program.
B. Meeting Facilities: Provide meeting facilities as necessary.
C. Marketing Data: Provide Sonoma Water Representative with access to water customer billing data to be used for marketing various water use efficiency Measures.
D. Applicant Review: Review Sonoma Water-submitted list of applicants requesting Program rebates or incentives to determine if applicant is a qualified Participant to receive a rebate or incentive.
E. Record Keeping: Maintain complete and accurate records of all transactions in compliance with generally accepted accounting principles for enterprise accounting as promulgated by the American Institute of Certified Public Accountants and the Governmental Accounting Standards Board. Such records shall be available to Sonoma Water at all reasonable times for inspection and analysis.
F. Payment: Make payment to Sonoma Water as specified in Paragraph 6.
5. SONOMA WATER'S RESPONSIBILITIES
A. Coordination: Coordinate, document, and report on the Measures that Sonoma Water performs, including management, administration, budget, and follow-up of Measures Reimbursement Agreement for the City of Cotati Water Use Efficiency Program 3 described in Exhibit A, and provide staff to respond to incoming conservation calls from City customers as needed.
B. Collateral Materials: Design and produce Program brochures and applications, as applicable and approved by City.
C. Programs: Administer Program Measures as described in Exhibit A.
D. Quarterly Reports: Prepare quarterly reports summarizing status of Measures completed by Sonoma Water and submit the report to City.
E. Record Keeping: Sonoma Water will maintain complete and accurate records of all Sonoma Water costs and transactions associated with performance of Sonoma Water’s responsibilities under this Agreement in compliance with generally accepted accounting principles for enterprise accounting as promulgated by the American Institute of Certified Public Accountants and the Governmental Accounting Standards Board. Such records will be available to City at all reasonable times for inspection and analysis.
F. Statutory Compliance/Living Wage Ordinance: Sonoma Water agrees to comply, and to ensure compliance by its subconsultants or subcontractors, with all applicable federal, state and local laws, regulations, statutes and policies, including but not limited to the County of Sonoma Living Wage Ordinance, applicable to the services provided under this Agreement as they exist now and as they are changed, amended or modified during the term of this Agreement. Without limiting the generality of the foregoing, Sonoma Water expressly acknowledges and agrees that this Agreement may be subject to the provisions of Article XXVI of Chapter 2 of the Sonoma County Code, requiring payment of a living wage to covered employees. Noncompliance during the term of the Agreement will be considered a material breach and may result in termination of the Agreement or pursuit of other legal or administrative remedies.
6. FUNDING
A. Payment to Sonoma Water:
1) Amount: City shall pay Sonoma Water for services and materials authorized and incurred under this Agreement. Total amount paid to Sonoma Water shall not exceed $37,000. Reimbursement amount shall be determined based on current weighted labor rates, including overhead, for Sonoma Water Representative listed in Paragraph 3.A and assigned support staff, plus actual costs of applicable materials. 2) Invoices: Sonoma Water shall invoice City quarterly for reimbursement of expenses incurred by Sonoma Water for Program. Invoices submitted to City by Sonoma Water shall include a complete cost accounting by Measure and be clearly marked with Sonoma Water’s invoice number and “Reimbursement Agreement for the City of Cotati, Water Use Efficiency Program, TW 22/23-069.” Upon receipt, review, and approval of invoice and Quarterly Status Report, City will pay Sonoma Water for Program costs as authorized herein and itemized in said invoice(s).
7. MUTUAL INDEMNIFICATION
A. Each party shall indemnify, defend, protect, hold harmless, and release the other, its officers, agents, and employees, from and against any and all claims, loss, proceedings, damages, causes of action, liability, costs, or expense (including attorneys’ fees and witness costs) arising from or in connection with, or caused by any act, omission, or negligence of Reimbursement Agreement for the City of Cotati Water Use Efficiency Program 4 such indemnifying party or its agents, employees, contractors, subcontractors, or invitees.
This indemnification obligation shall not be limited in any way by any limitation on the amount or type of damages or compensation payable to or for the indemnifying party or its agents, employees, contractors, subcontractors, or invitees under workers’ compensation acts, disability benefit acts, or other employee benefit acts.
8. INSURANCE
A. Sonoma Water shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Sonoma Water, Sonoma Water’s agents, representatives and employees.
1) Minimum Scope of Insurance. Coverage shall be at least as broad as:
a. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
Insurance Services Office form number CA 0001 (ed. 12/90) covering automobile Liability, code 1 (any auto), or code 8, 9 if no owned auto. b. Workers’ Compensation Insurance as required by the State of California and Employers’ Liability Insurance. If no employees are utilized, Sonoma Water shall sign a declaration as described in California Health and Safety Code Section 19825. 2) Minimum Limits of Insurance. Sonoma Water shall maintain limits no less than:
a. General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
Automobile Liability: $2,000,000 per accident for bodily injury and property damage. b. Employers Liability: $1,000,000 per accident for bodily injury or disease Workers’ Compensation, Statutory Limits: $1,000,000 per accident for bodily injury or disease.
3) No Coverage Limitations or Restrictions. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the aforementioned specified minimum insurance coverage requirements and/or limits shall be available to the Additional Insureds (defined below). Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater.
Deductibles and Self-Insured Retentions (“SIR”). Any deductibles or SIR must be declared to and approved by the City and shall not reduce the limits of liability. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or SIR as respects the City, its officers, officials, employees and volunteers, or Sonoma Water shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City. City reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of the right to so exercise later.
Reimbursement Agreement for the City of Cotati Water Use Efficiency Program 5 4) Other Insurance Provisions. The Commercial General Liability and Automobile Liability policies are to contain, or be endorsed to contain, the following provisions:
a. The City, its officers, officials, employees and volunteers (“Additional Insureds”) are to be covered as insureds as respects: liability arising out of work or operations as performed by or on behalf of Sonoma Water; or automobiles owned, leased, hired or borrowed by Sonoma Water.
The Additional Insured coverage under Sonoma Water’s policy shall be “primary and non-contributory” and will not seek contribution from the City’s insurance or selfinsurance, and shall be at least as broad as CG 20 01 04 13. b. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, unless thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City.
The Workers’ Compensation endorsement shall contain a Waiver of Subrogation against the City. Sonoma Water shall provide to the City an endorsement from the Workers’ Compensation insurer, if any, agreeing to waive all rights of subrogation against the City for injuries to employees of the Insured resulting from work for the City or use of the City’s premises or facilities.
c. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City’s own insurance or self -insurance shall be called upon to protect City as a named insured.
5) Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best’s rating of no less than A:VII, unless otherwise acceptable to the City. 6) Verification of Coverage. Sonoma Water shall furnish the City with original certificates and amendatory endorsements effective coverage required by this clause. The endorsements should be on forms provided by the City or on other than the City’s forms provided those endorsements conform to the City’s requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
7) Subcontractors. Sonoma Water agrees to include with all subcontractors in their subcontract the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, to the extent they apply to the scope of a subcontractor’s work. Subcontractors hired by Contractor agree to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under this Agreement. Subcontractors shall further agree to include these same provisions with any sub-subcontractor. A copy of these indemnity and insurance provisions will be furnished by Contractor to a subcontractor on request. Contractor shall require all subcontractors to provide a valid certificate of insurance and the required endorsements included in their agreement prior to commencement of any Work and Contractor shall provide proof of compliance to City.
Reimbursement Agreement for the City of Cotati Water Use Efficiency Program 6
9. TERM OF AGREEMENT
A. This Agreement shall remain in effect until depletion of the not-to-exceed amount listed in Paragraph 6, or until March 31, 2028, whichever occurs first, unless terminated earlier in accordance with the provisions of Paragraph 9.
B. The parties have two options to extend this Agreement for a period of one year each by providing written notice to the other party thirty days in advance of the expiration date noted in this Article and of the first extension option. If both parties agree, the extension shall be formalized in an amended agreement or amendment signed by Sonoma Water and City.
10. TERMINATION OF AGREEMENT
A. This Agreement may be terminated by either party for any reason upon thirty calendar days’ written notice by either party. Sonoma Water’s right to terminate may be exercised by Sonoma County Water Agency’s General Manager.
11. PAYMENT OF TAXES, TAX WITHHOLDING
A. Sonoma Water is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. To be exempt from tax withholding, Sonoma Water must provide City with a valid California Franchise Tax Board form 590 (“Form 590”), as may be amended and such Form 590 shall be attached hereto. Unless Sonoma Water provides City with a valid Form 590 or other valid, written evidence of an exemption or waiver from withholding, City may withhold California taxes from payments to Sonoma Water as required by law. Sonoma Water shall obtain, and maintain on file for three (3) years after the termination of this Agreement, Form 590s (or other written evidence of exemptions or waivers) from all subconsultants or subcontractors. Sonoma Water accepts sole responsibility for withholding taxes from any non-California resident subconsultant or subcontractor and shall submit written documentation of compliance with Sonoma Water’s withholding duty to City upon request.
12. ADDITIONAL REQUIREMENTS
A. Authority to Amend Agreement: Extra or changed work or other changes to the Agreement may be authorized only by written amendment to this Agreement, signed by both parties.
Changes to lengthen time schedules or make minor modifications to the scope of work, which do not increase the amount paid under the Agreement, may be executed by Sonoma County Water Agency's General Manager in a form approved by County Counsel upon 30 day advanced notice to the City. The parties expressly recognize that Sonoma Water personnel are without authorization to order all other extra or changed work or waive Agreement requirements. Notwithstanding this authority, neither Sonoma Water nor City is under any obligation to approve such amendments.
B. No Waiver of Breach: The waiver of either party of any breach of any term or promise contained in this Agreement shall not be deemed to be a waiver of such term or promise or any subsequent breach of the same or any other term or promise contained in this Agreement.
Reimbursement Agreement for the City of Cotati Water Use Efficiency Program 7 C. Construction: To the fullest extent allowed by law, the provisions of this Agreement shall be construed and given effect in a manner that avoids any violation of statute, ordinance, regulation, or law. The parties covenant and agree that in the event that any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby.
City and Sonoma Water acknowledge that they have each contributed to the making of this Agreement and that, in the event of a dispute over the interpretation of this Agreement, the language of the Agreement will not be construed against one party in favor of the other.
City and Sonoma Water acknowledge that they have each had an adequate opportunity to consult with counsel in the negotiation and preparation of this Agreement.
D. No Third-Party Beneficiaries: Nothing contained in this Agreement shall be construed to create and the parties do not intend to create any rights in third parties.
E. Applicable Law and Forum: This Agreement shall be construed and interpreted according to the substantive law of California excluding the law of conflicts. Any action to enforce the terms of this Agreement or for the breach thereof shall be brought and tried in the County of Sonoma.
F. Captions: The captions in this Agreement are solely for convenience of reference. They are not a part of this Agreement and shall have no effect on its construction or interpretation.
G. Merger: This writing is intended both as the final expression of the Agreement between the parties hereto with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement, pursuant to Code of Civil Procedure section 1856.
No modification of this Agreement shall be effective unless and until such modification is evidenced by a writing signed by both parties.
H. Survival of Terms: All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason.
I. Time of Essence: Time is and shall be of the essence of this Agreement and every provision hereof.
J. Counterpart; Electronic Signatures: The parties agree that this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together which when executed by the requisite parties shall be deemed to be a complete original agreement. Counterparts may be delivered via facsimile, electronic mail (including PDF), or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered, be valid and effective for all purposes, and shall have the same legal force and effect as an original document. This Agreement, and any counterpart, may be electronically signed by each or any of the parties through the use of any commerciallyavailable digital and/or electronic signature software or other electronic signature method in compliance with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civil Code § 1633.1 et seq.), or other applicable law. By its use of any electronic signature below, the signing party agrees to have conducted this transaction and to execution of this Agreement by electronic means.
K. Independent Contractor. It is understood and agreed that this Agreement is not a contract of employment and does not create an employer-employee relationship between the City and Sonoma Water. The City shall not control the manner of Sonoma Water accomplishing Reimbursement Agreement for the City of Cotati Water Use Efficiency Program 8 its responsibilities under this agreement. Sonoma Water is not authorized to bind the City to any contracts or other obligations without the express written consent of the City.
L. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
M. Non-Liability of Officials, Employees and Agents. No officer, official, employee or agent of City shall be personally liable to Sonoma Water in the event of any default or breach by City or for any amount which may become due to Sonoma Water pursuant to this Agreement.
N. Prevailing Party. In the event that either party to this Agreement commences any legal action or proceeding (including but not limited to arbitration) to interpret the terms of this Agreement, the prevailing party in such a proceeding shall be entitled to recover its reasonable attorney’s fees associated with that legal action or proceeding.
O. Assignment; Governing Law. The parties may not assign any obligations under this Agreement without the prior written approval of the other party. This Agreement is governed by California law. The jurisdiction for any litigation arising from this Agreement shall be in the state of California, and shall be venued in the County of Sonoma. /
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Reimbursement Agreement for the City of Cotati Water Use Efficiency Program 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as set forth below.
Reviewed as to funds: TW 22/23-069
By:
Sonoma County Water Agency
Division Manager - Administrative Services
Approved as to form: Reviewed as to form:
By: By:
Adam Brand, Deputy County Counsel Alexandra Wolf, City Attorney Sonoma County Water Agency City of Cotati
By: By:
Grant Davis
General Manager
Damien O’Bid
City Manager
Authorized per Sonoma County Water
Agency’s Board of Directors Action on April 18,
2023
Date: Date:
Reimbursement Agreement for the City of Cotati Water Use Efficiency Program 1
EXHIBIT A
Water Use Efficiency Program Summary
Sonoma Water will assist City with Program management including, but not limited to, verifying customer eligibility, processing rebates, tracking participation, developing marketing or outreach materials, purchasing efficiency devices and supplies, and scheduling Program-related appointments.
Measures may include, but are not limited to:
Water Smart Home Survey
Project-Activity Code: T0612D050
City will participate in, and Sonoma Water will coordinate, Water Smart Home Surveys. Sonoma Water will perform a residential site evaluation of indoor and outdoor water-using fixtures and provide a report with a list of water savings recommendations to the customer. Sonoma Water will provide replacement low flow faucet aerators and showerheads to the customer if needed. Sonoma Water will provide City with copies of customer reports, as requested.
City will provide Sonoma Water with water use data from customers who request a Water Smart Home Survey.
Commercial Water Use Survey
Project-Activity Code: T0612D051
City will participate in, and Sonoma Water will coordinate, Commercial Water Use Surveys. Sonoma Water will perform a commercial site evaluation of indoor and outdoor water-using fixtures and provide a report with a list of water savings recommendations to the customer. Sonoma Water will provide replacement low flow faucet aerators and showerheads to the customer if needed. Sonoma Water will provide City with copies of customer reports, as requested.
City will provide Sonoma Water with water use data from customers who request a Commercial Water Use Survey.
High Efficiency Toilet (HET) Rebate
Project-Activity Code: T0612D050 (Residential) or T0612D051 (Commercial) Sonoma Water will assist with the implementation of HET rebates, including scheduling and conducting pre-qualification water use survey appointments to verify customer eligibility and issue the customer a rebate application. The HET rebates provide an incentive to customers to replace inefficient toilets with more efficient models and are offered under the rebate guidelines set forth by City.
Cash-for-Grass Turf Replacement Rebate
Project-Activity Code: T0612D050 (Residential) or T0612D051 (Commercial) Sonoma Water will assist City with administering Cash-for-Grass Turf Replacement rebates. Sonoma Water will qualify customers through a water use survey and issue the customer a rebate application.
Sonoma Water will complete a post-inspection visit of customer projects to substantiate adherence to rebate guidelines set forth by City prior to final approval of a rebate application. The Cash-for-Grass Turf Replacement rebate incentivizes customers to replace lawn with low water use plants.
Reimbursement Agreement for the City of Cotati Water Use Efficiency Program 2 Purchase of Water Efficiency Devices and Supplies
Project-Activity Code: T0612D034
Sonoma Water will assist City in purchasing water efficiency devices and other supplies in support of the Water Smart Home Surveys or other customer giveaways intended for direct water savings or Program marketing and outreach. This may include low flow showerheads, faucet aerators, or other Program materials.