City of Napa
Agreement No. _______
Napa Sanitation District
Agreement No. _______
MEMORANDUM OF UNDERSTANDING
FOR THE
PURIFIED WATER FEASIBILITY STUDY
This
Memorandum of Understanding
for the
preparation of the Purified Water
Feasibility Study
(this
“Agreement”) by and between the City of Napa,
a California charter city
("CITY"), and
the
Napa Sanitation
District,
a county sanitation district, formed pursuant to Health & Safety Code Sections 4700, et seq.
(the
“
DISTRICT
”)
is effective as of the effective date identified on the signature page. CITY and
DISTRICT
may
be identified as “a Party,” or collectively, as “the Parties .
” The Parties are public entities organized and
operating under
the laws of the State of California and each is
a public agency as defined
in
California
Government Code Section
6500.
RECITALS
A. The CITY
and
DISTRICT
desire to conduct a joint effort to determine the feasibility of developing
new water supplies by treating existing tertiary treated wastewater to a more advanced level.
B. In November 2021, the Cities of Napa, American Canyon, Calistoga and St. Helena, the Town
of Yountville, Napa County and the Napa Sanitation District worked together to prepare a regional Napa
Valley Drought Contingency Plan (“Plan”) for Napa County.
C. Appendix D of the Plan was entitled the Napa Valley Purified Water Assessment in which an
initial
investigation into the concepts of indirect and direct potable water reuse was conducted.
D. The
CITY
and DISTRICT desire to further explore
the concepts developed as part of the Napa
Valley
Purified
Water
Assessment
to
better
understand
the
possibility
of
continuing
to
advance
these
potential projects; the next step being an engineering feasibility study.
E.
The CITY and DISTRICT
publicly
advertised
for proposals, received three
submissions,
interviewed
all three firms, and selected a Consultant firm to assess the feasibility of producing purified
water for direct potable reuse by the City of Napa.
F. The CITY in conjunction with the DISTRICT
worked with the Consultant to develop a scope and
budget for the preparation of the Purified Water Feasibility Study ( “
Study
”
).
G. The CITY and DISTRICT would benefit from the preparation of a Study.
H. The
CITY and DISTRICT
desire to share the costs of preparing the Study.
I. The
CITY and DISTRICT
wish to enter into this Agreement in order to set forth the terms and
conditions upon which the Parties will cooperate to develop the Study and share the associated costs.
NOW,
THEREFORE,
the
CITY and
DISTRICT
for the considerations hereinafter set forth, mutually
agree as follows:
1. TERM; TERMINATION FOR CAUSE
.
This Agreement
shall commence on the
date it is
signed
by
the
City
Clerk,
below,
attesting
to
full
execution
of
the
Agreement
by
both
parties
(“
Effective
Date”)
.
This
Agreement may
be
terminated
only
by either: (1)
mutual agreement of the
Parties; or (2)
as a
result of
a material breach by the other Party of Paragraphs 2 or 3 of this Agreement. Following receipt of
written notice by the non-defaulting Party
specifying the nature
of such breach, the defaulting Party shall
have thirty (30) days from the date of receipt to cure the breach. If after 30 days from receipt of the notice ATTACHMENT 3
(
c
)
Collaboration Between the Parties.
The Parties agree to the following to ensure
the
Plan
meets both
Parties’
needs:
•
Each Party will notify the other Party of any meetings scheduled with the
Consultant
and
will
give
the
other
Party
the
opportunity
to
attend
such
meeting.
•
Each Party
shall
include the other Party
in all written
communications with
the Consultant and any sub-consultants.
•
The
Parties
shall
mutually
agree
upon
any
changes
to
the
Scope
of
Services
attached
as
Exhibit
A
to
the
Consultant’s
Agreement
prior
to
CITY
’s
execution of
the Consultant’s Agreement
,
or
an amendment to
the
Consult
ant’s Agreement
,
with the
Consultant.
•
Neither
Party
shall
release information
from the
Study
to any third party
without
coordinating with the other
Party. Both Parties agree to notify the
other immediately upon any request for any records created pursuant to
the
Consultant’s Agreement
that the Parties have not previously agreed to
be released.
To the extent that a Party receives a request to disclose any
such records, and the Party does not
identify a legal basis to withhold such
records, the Party shall provide written notice to the other Party, and the
other Party shall be given a reasonable opportunity to seek a court order
to preclude the Party to whom the request was made from disclosing such
records, or applicable portion thereof, provided that in such event the other
Party shall defend, indemnify, and hold the Party to whom the request was
made harmless regarding any claim or litigation by an third party, and such
obligation shall survive termination of this Agreement. Except as expressly
provided
herein,
this
provision
shall
not
impact
either
Part
y’
s
ability
to
timely respond to any legally required release of
such
records.
3. INVOICING
AND
PAYMENT.
Each
month
following
CI
TY’s
payment
to
the
Consultant
pursuant
to
the
Consultant’s
Agreement
,
CITY
shall
invoice
DISTRICT
for
DISTRICT
’s
Share
of
such
payment. The invoice shall
document the full amount paid by the CITY to the
Consultant, and the amount
owed by
DISTRICT
to CITY
for
DISTRICT
’s
Share.
DISTRICT
shall pay
CITY
within thirty (30) days of
receipt
of each invoice.
4. INSURANCE.
CITY
shall obtain and maintain in full force and effect throughout the term of this Agreement, and thereafter as to matters occurring during the term of this Agreement, the following ATTACHMENT 3
of default the breach has not been cured, the non-defaulting Party may terminate this Agreement by giving
the other Party no less than (7) days prior written notice of the termination, specifying the effective date of
the termination.
Notwithstanding the foregoing, if the Consultant’s Agreement
(defined below)
is terminated for any
reason, this Agreement shall automatically terminate at the same time. Upon termination,
DISTRICT
shall
pay
to
CITY,
DISTRICT
’s
Share
(defined
below)
of
any
costs
incurred
by
CITY
under
the
Consultant’s
Agreement prior to the date of such termination of the Consultant’s Agreement.
2. PROFESSIONAL SERVICES.
(a)
Award and Administration of
Consultant’s
Agreement.
CITY shall enter into that
certain Services Agreement (Professional Services) for the Purified Water Feasibility Study with Consultant
substantially in the form attached hereto as Exhibit “A” in an amount not to exceed
$480,267
(“Consultant’s
A
greement”).
CITY
shall be responsible for administering the
Consultant’s Agreement, including
paying
the
C
onsultant in accordance with the Consultant’s Agreement
(including any amendment thereto).
(b)
Shared
Costs.
The costs of the
Study
to be shared by the Parties
shall
equal
the
costs
incurred
by
the
CITY
pursuant
to
the
Consultant’s
Agreement
(“Shared
Costs”)
.
DISTRICT
’s
proportionate share of the Shared Costs is
50 % (“
DISTRICT
’s Share”) as set
forth
in Exhibit B.
insurance coverage or equivalent amounts of self
-
insurance:
(a)
Workers
’
Co
mpensation insurance
. To the extent required by law, workers
’
'
compensation insurance in the performance of any of
C
I
TY
’s duties under this Agreement
; and
upon
request by
DISTRICT
, CITY
shall provide certification of such coverage.
(b)
Liability insurance
.
(1)
Commercial general liability insurance coverage of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, issued by a company having a A.M. Best r
ating of A:VII or better, covering liability for any personal injury, including death, to any person and/or damage to the property of any person arising from the acts or omissions of C
I
TY
or any officer, agent, or
employee of
C
I
TY
under this Agreement exce
pt for acts or omissions performed in strict compliance with express direction
of
DISTRICT
’s
governing board, officers or personnel.
(
2 )
Comprehensive automobile liability insurance policy (Bodily Injury and Property Damage) on owned, hired, leased and non
-
owned vehicles used in conjunction with
CITY’s
activities under this Agreement of not less than
One Million
Dollars ($
1,
00 0
,000)
combined single limit per
occurrence.
(c)
Certificates of Coverage.
Where the foregoing coverages are provided by
insurance rather than by self
-
insurance (written proof of which shall be provided to
DISTRICT
upon
request
), the coverages shall be evidenc
ed by a Certificate of Coverage which shall be filed with
DISTRICT
’s
General Manager
upon request
; shall name
DISTRICT
, its officers, employees, and agents as
additional insureds; shall be kept current during the term of this Agreement; shall provide that
DISTRICT
shall be given no less than thirty (30) days prior written notice of any non -
renewal, cancellation, other
termination, or material change; shall provide that the insurance provided is primary coverage to
DISTRICT
with respect to any insurance or
self
-
insurance programs maintained by
DISTRICT
; and shall provide that
the inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, the coverage afforded applying as though separate policies had been issued to each insured, but the inclusion of
more than one insured shall not operate to increase the limits of the company's liability.
Upon request of
DISTRICT
’
s
General Manager
,
C
I
TY
shall provide or arrange for the insurer to provide
DISTRICT
with certified copies of the actual insurance policie
s or relevant portions thereof within thirty (30)
days of the request.
(
d
)
Inclusion in Subcontracts.
C
I
TY agrees to require
the Consultant
and any other
entity or person who is involved in providing services under this Agreement to comply with the Work ers
Compensation and General Liability insurance requirements set forth in this Paragraph 4 and to require
the
Consultant
to name
DISTRICT
as an additional insured.
CITY also agrees to require the Consultant and
any other entity or person who is involved
in providing services under this Agreement to obtain and maintain in full force and effect throughout the term of this Agreement professional liability/errors and omissions insurance in an amount of not less than One Million Dollars ($1,000,000) combined s ingle limit for each
occurrence, covering all professional acts or omissions of Consultant or its agents arising out of or in connection with this Agreement.
5. INDEMNIFICATION.
(a)
By CITY.
CITY shall defend, indemnify and hold harmless
DISTRICT
and the
officers, agents and employees of
DISTRICT
from any claim, loss or liability including without limitation,
those
for
personal
injury
(including
death)
or
damage
to
property,
arising
out
of
or
connected
with
any
aspect of the performance by CITY or its officers, agents, or employees, of activities or obligations required
of
CITY
under
this
Agreement
except
where
the
loss
was
proximately
caused
by
acts
or
omissions
of
DISTRICT
performed in strict compliance with express direction from
CITY’s
governing board, officers or
personnel
other
than
direction
based
upon
and
conforming
to
advice
from
DISTRICT.
(b)
By
DISTRICT.
DISTRICT
shall
defend, indemnify and hold harmless CITY
and
the officers, agents and employees of CITY from any claim, loss or liability including without limitation, those
for personal injury (including death) or damage to property, arising out of or connected with any aspect of ATTACHMENT 3
the performance by
DISTRICT
or its officers, agents
, or employees, of obligations required of
DISTRICT
under this Agreement as well as for claims where the loss was proximately caused by acts or omissions of CITY performed in strict compliance with express direction from
DISTRICT
’s governing board, officer
s or
personnel other than direction based upon and conforming to advice from CITY.
6. NO WAIVER.
The waiver by any of the parties of any breach or violation of any requirement of this Agreement shall not be deemed to be a waiver of any such breach in the future, or of
the breach of any other requirement of this Agreement.
7. NOTICES.
All notices required or authorized by this Agreement shall be in writing and shall be delivered in person or by deposit in the United States mail, by certified mail, postage p repaid, return
receipt requested. Any mailed notice, demand, request, consent, approval or communication that any party desires to give any other party shall be addressed to the other party at the address set forth below. Any party may change its address
by notifying the other parties of the change of address. Any notice sent by mail in the manner prescribed by this paragraph shall be deemed to have been received on the date noted on the return receipt or five days following the date of deposit, whichever
is earlier.
DISTRICT
CITY
General Manager
Utilities
Director
Napa Sanitation District
City of Napa
1515 Soscol Ferry Rd
P.O. Box 660
Napa
, CA
94558
Napa, CA 94559
8. COMPLIANCE WITH LAWS.
In performing any services required under this Agreement to be reimbursed by
DISTRICT,
CITY
shall observe and comply with all applicable Federal, State and local laws, ordinances, and codes. Such laws shall also include, but not be limited to, the following,
except where otherwise prohibited by state or local law:
(a)
Non-Discrimination.
During
the
performance
of
this
Agreement,
CITY
and
its
subcontractors shall not deny the benefits thereof to any person on the basis of sex, race, color, ancestry,
religion or religious creed, national origin or ethnic group identification, sexual orientation, marital status,
age (over 40), mental disability, physical disability or medical condition (including cancer, HIV and AIDS),
nor shall they discriminate unlawfully against any employee or applicant for employment because of sex,
race,
color,
ancestry,
religion
or
religious
creed,
national
origin
or
ethnic
group
identification,
sexual
orientation, marital status, age (over 40), mental disability, physical disability or medical condition (including
cancer, HIV and AIDS), or use of family care leave.
CITY
shall ensure that the evaluation and treatment of
employees and applicants for employment are free of such discrimination or harassment. In addition to the
foregoing general obligations,
CITY
shall comply with the provisions of the Fair Employment and Housing
Act (Government Code section 12900, et
seq.), the regulations promulgated thereunder (Title 2, California
Code of Regulations, section 7285.0, et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3,
Title 2 of the Government Code (sections 11135-11139.5) and any state or local regulations adopted to
implement any of the foregoing, as such statutes and regulations may be amended from time to time. To
the extent this Agreement subcontracts to
CITY
services or works required of
DISTRICT
by the State of
California pursuant to agreements between
DISTRICT
and the State, the applicable regulations of the Fair
Employment and Housing Commission implementing Government Code section 12990 (a) through (f), set
forth in Chapter 5 of Division 4 of Title 2 of the California Code of regulations
are expressly incorporated
into this Agreement by reference and
made
a part hereof
as if set forth
in full,
and
CITY
and any of
its
subcontractors
shall
give
written
notice
of
their
obligations
thereunder
to
labor
organizations
with
which
they have collective bargaining or other agreements.
(b)
Documentation of Right to Work.
CITY
agrees to abide by the requirements of the
Immigration
and
Control
Reform
Act
pertaining
to
assuring
that
all
newly-hired
employees
of
CITY
performing any services under this Agreement have a legal right to work in the United States of America,
that
all required documentation of such right to work
is inspected,
and that INS
Form 1-9 (as
it
may be
amended from time to time) is completed and on file for each employee. CITY
shall
make the required
documentation available upon request to
DISTRICT
for inspection.
ATTACHMENT 3
(c)
Inclusion in Subcontracts.
To the extent any of the services required of
C
I
TY
under
this Agreement are subcontracted to a third party,
C
I
TY
shall include the provisions of (a) and (b), above,
in all such subcontracts as obligations of the subcontractor.
9. AUTHORITY TO CONTRACT.
C
IT
Y and
DISTRICT
each warrant hereby that they are
legally permitted and otherwise have the authority to enter int o and perform this Agreement.
10. INDEPENDENT ENTITIES.
Although this Agreement is a Joint Powers Agreement as
authorized by California Government Code
Sections
6500
et seq
,
CITY
and
DISTRICT
are independent
entities, and
CITY
and
DISTRICT
and the respective officers, agents and employees of
CITY
and
DISTRICT
are not, and shall not be deemed, employees of the other agency for any purpose, including but not limited to worker’s compensation and employee benefits.
11. PRIVILEGES, IMMUNITIES AND
OTHER BENFEFITS
.
In accordance with California
Government Code
S
ection 6513, all of the privileges and immunities from liability, all exemptions from laws, ordinances and rules, and all pension, relief, disability, workmen’s compensation, and other benef its which
apply to the activity of the trustees, officers, employees or agents of the Parties when performing their functions within the territorial limits of their respective p
ublic
a
gencies, shall apply to them to the same
degree and extent while engaged
in the performance of any of their functions and duties associated with performance of this Agreement.
12. THIRD PARTY BENEFICIARIES.
Nothing contained in this Agreement shall be construed
to create any rights in third parties and CITY and
DISTRICT
do not intend to create such rights.
13. ATTORNEY'S FEES.
In the event that
either
of the
P
arties commences legal action of any
kind or character to either enforce the provisions of this Agreement or to obtain damages for breach thereof, the prevailing par
ty in such litigation shall be entitled to all costs and reasonable attorney's fees incurred in connection with such action.
14. RECORDS AND TITLE TO DOCUMENTS.
Upon completion of the
Study
,
C
I
TY shall
require the
C
onsultant to provide original copies to
DI
STRICT
and CITY.
15. ENTIRETY OF CONTRACT.
This Agreement
, together with Exhibits A and B,
constitutes
the entire agreement between the
P
arties relating to the subject of
this Agreement and supersedes all
previous agreements, promises, representations, understandings and negotiations, whether written or oral, among the parties with respect to the subject matter hereof.
16. SEVERABILITY.
If any term of this Agreement
(including any phrase, provision, covenant,
or condition) is held by a court of competent jurisdiction to be in valid or unenforceable, this
Agreement will
be construed as not containing that term, and the remainder of this Agreement will remain in full for ce and
effect; provided, however, this section will not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement.
17. COUNTERPARTS
.
This Agreement may be executed in counterparts, each one of which is
deemed an original, but all of which together constitute a single instrument.
[SIGNATURES ON FOLLOWING PAGE]
ATTACHMENT 3
IN WITNESS WHEREOF
,
the parties hereto have executed this Agreement to be effective on the Effective Date set forth below.
CITY OF NAPA,
a
California Charter City
:
NAPA SANITATION
DISTRICT
,
a
county
sanitation district
:
Phil Brun, Utilities Director
Scott Sedgley
,
Chair of the Board of
Directors
COUNTERSIGNED:
ATTEST
:
Joy Riesenberg,
City Auditor
Cheryl Schuh
,
Clerk of the Board of
Directors
APPROVED AS TO FORM:
APPROVED AS TO FORM:
Michael W. Barrett, City Attorney
John Bakker
,
D
istrict
Counsel
ATTACHMENT 3