AGREEMEN
T
BETWEEN CITY OF SUNNYVALE AND CUPERTINO SANITARY DISTRICT
FOR SEWER FLOW DIVERSION
This AGREEMENT is made and entered into on __________________, 2022, by and between the City of Sunnyvale (CITY) and the CUPERTINO SANITARY DISTRICT (CuSD), also referred to as Party or collectively as PARTIES.
RECITALS
1. The CITY currently serves 91 homes in the area west of East Estates Drive and north of Bollinger Road in Cupertino, CA. This flow currently passes through a suspended pipeline over Calabazas Creek. This suspended pipeline must be taken out of service and removed in the Summer of 2022 to meet requirements of the Santa Clara Valley Water District (Valley Water). The CITY has proposed to transfer flow out of the existing CITY-owned sewer pipe bridge and into CuSD’s sewer collection system. This 91-home flow is proposed to pass through CuSD’s system to another location where the same approximate flow is transferred back into the CITY’s system.
2. At the request of the CITY and with concurrence from the CuSD Board, CuSD staff has evaluated the feasibility of transferring flow from the CITY to CuSD.
3. CuSD staff determined that it is feasible and CuSD can accept and transfer the flow as described later in this document.
4. In addition to the proposed flow transfer and it associated construction and O&M requirements, the Parties also seek to resolve service area border discrepancies and at a future date, investigate the feasibility of a proposed wet weather flow transfer from CuSD to the CITY.
NOW THEREFORE, in consideration of and upon the terms and conditions hereinafter specified, the Parties agree as follows:
1. Purpose of this Agreement
The purpose of this Agreement is to provide the terms for the diversion and conveyance of flows from the CITY to CuSD on East Estates Drive, for deep cleaning of the siphons, for CCTV inspection and condition assessment and future rehabilitation or replacement of the siphon pipes, for the design and construction of a new diversion weir in CuSD manhole 2533-13, resolution of border parcel mapping discrepancies, and provisions for the CITY to evaluate its ability to provide 0.5 MGD of peak overflow capacity to CuSD
2. Diversion of Flows
Collection system improvements along the path of flow transfer are presented below in order from downstream to upstream.
2.1 Diversion at South Tantau Avenue.
A. At the downstream end of the proposed flow transfer, the CITY has repaired an existing, previously unused 8-inch sewer pipe extending from CuSD sewer manhole 2533-13 at Shadygrove Drive north along S. Tantau Avenue to the CITY’s sewer manhole A108-201 at Barnhart Avenue. This sewer is now available for the proposed flow transfer. Although previous ownership of this existing S. Tantau Avenue sewer is unclear, the Parties agree that it will now be owned and maintained by the CITY.
Attachment 1
B. The CITY agrees to design and construct a new diversion weir within CuSD manhole 2533-13 to send approximately 91 homes of flow into the CITY system. The Parties agree that the flow diversion will be approximately 15% of the total combined CITY & CUSD flow that reaches this manhole, based upon counts of homes upstream. Design of the weir is subject to approval by CuSD before construction. After initial installation of the weir, the CITY agrees to review data from CuSD’s nearby sewer lift station and to make any adjustments to the weir system that may be warranted to achieve the desired approximate 91-home transfer.
C. CuSD manhole 2533-13 will continue to be owned and maintained by CuSD. However, with CuSD approval, the CITY may install a hinged manhole lid and SmartCover water level sensor at this manhole, at CITY expense, to better understand sewer flow characteristics and to assist with weir design.
2.2 Flow transfer along shared pipes
CuSD agrees to convey the CITY’s flow from E. Estates Drive to S. Tantau Ave through several CuSD pipes including an existing CuSD owned inverted siphon across Calabazas Creek. The inverted siphon is over 60 years old and has accumulated grease in both twin 6-inch diameter pipes. This accumulation has likely reduced the effective carrying capacity of the siphon. The condition of the siphon pipes is unknown at the time of execution of this agreement. CuSD intends to clean and inspect the siphon pipes sometime after the proposed CITY flow transfer project has been implemented.
2.3 Diversion at E. Estates Drive
At the upstream end of the proposed flow transfer at E. Estates Drive, the CITY agrees to construct a new approximate 20-foot long 8-inch sewer from CITY sewer manhole A130-211 to CuSD Flushing Inlet 2088- 1F. The CITY will also replace the existing CuSD flushing inlet with a new manhole, to be owned and maintained by CuSD. The new 8-inch sewer will be owned and maintained by the CITY. Flow that previously traveled east across the sewer pipe bridge at Calabazas Creek from the CITY manhole will therefore travel north into CuSD’s system.
2.4 Deep Cleaning of the Siphon
CuSD agrees to perform a deep cleaning and CCTV inspection of the siphon pipes and assess their condition. If the pipes are significantly deteriorated, they will be replaced or rehabilitated to extend their useful life. CuSD will then develop a plan to regularly clean the grease build-up from the siphon barrels to sustain the capacity of twin 6-inch barrel siphon pipes.
3. Resolve Border Parcel Discrepancies.
In accordance with LAFCO’s Special Districts Service Review, Phase 2 dated December 4, 2013, there are several anomalous areas along CuSD’s shared boundaries with other agencies where questions arose regarding which agency is currently providing services and which agency would likely be providing services in the future. Four such areas were identified within the City of Sunnyvale area and are designated by the letters B through E. LAFCO is requesting that these boundary issues be resolved.
For reference, the following items B through E are excerpted from LAFCO’s Special Districts Service Review, Phase 2 dated December 4, 2013.
Area B (APNs 323-26-014, 323-26-033, 323-26-016, 323-26-034, and 323-26-077) is a commercial area that is within CuSD’s bounds and SOI. The parcels in question are located within the City of Sunnyvale that provides its own wastewater collection services. The City and CuSD both reported that this area is in fact served by the City and will continue to be served by the City. It does not appear to be necessary for the territory to remain within CuSD’s bounds; consequently, it is recommended that the area be excluded from CuSD’s SOI and detached from the District (LAFCO action required).
Attachment 1
Area C (APN 309-46-064) is a single parcel within the City of Sunnyvale that is also within CuSD’s bounds and SOI. Both agencies corroborated that the parcel is receiving services from CuSD. The reasoning as to why this single parcel is connected to the CuSD system instead of the Sunnyvale system is unknown; however, given that any change in the connection would require infrastructure changes, it is likely that CuSD will continue to serve the area. It is recommended that the area remain within CuSD’s SOI to reflect its current service area (No LAFCO action is required).
Area D is the remaining portion of the City of Cupertino that is not within CuSD and its SOI. The area is served by Sunnyvale, as the terrain is such that flow into the Sunnyvale system is appropriate. Given the topography and existing system infrastructure, it is unlikely that CuSD would take on services in this area, and it is recommended that CuSD’s SOI remain unchanged in this area (No LAFCO action is required).
Area E is outside CuSD’s bounds but within its SOI. Similar to Area D this area is served by the City of Sunnyvale. A sewer main transports the flow to the system in the eastern portion of the City of Cupertino.
Given the existing system infrastructure, it is unlikely that CuSD would take on services in this area, and it is recommended that the area be excluded from CuSD’s SOI (LAFCO action required).
In addition to Areas B through E above, two other boundary issues have been identified. One is the aforementioned 91 homes on the west side of Calabazas Creek and the other is Sedgwick Elementary School at 19200 Phil Lane. Sanitary sewer service to both the 91 homes and the elementary school are currently provided by the CITY. However, they are incorrectly shown to be within CuSD’s service area in the LAFCO mapping.
Both PARTIES desire to resolve the discrepancies described above. All LAFCO actions described above will be initiated and administered, including payment of fees, as described in Cost Sharing 5 D.
4. Investigation of potential wet weather flow transfer from CuSD to the CITY CuSD wishes to reserve instantaneous peak wet weather overflow capacity of 139 gallons per minute (0.5 MGD) in the CITY’s wastewater collection system. CITY agrees to make a good faith effort to investigate this possible flow transfer during future modeling efforts. If CITY is able to accept this flow, this transfer may happen at one or more locations, as mutually agreed upon by the CITY and CuSD.
As part of this good faith effort to investigate instantaneous peak flow transfer, CITY agrees to include 0.5 MGD in its analysis of future master planning and capital improvement planning for the collections system and the treatment plant. The CITY will share future master planning and capital improvement planning results as they relate to the proposed CuSD wet weather flow transfer. If the analysis determines that future projects can accommodate the requested capacity for the shared benefit of the CITY and CuSD, CITY agrees to implement those projects and CuSD agrees to pay the incremental costs associated with the benefit to CuSD as mutually agreed upon by the CITY and CuSD. If the analysis determines that the future projects would be required for the benefit of CuSD only, CuSD would be responsible for the costs of project implementation as mutually agreed upon by the CITY and CuSD.
5. Cost Sharing
A. CITY agrees to a 38.5% percent share in the cost of a one-time deep cleaning of the dual 6-inch diameter siphons that cross Calabazas creek. This 38.5% share is based upon a count of CITY and CuSD homes upstream of the siphon. This cost to partially clean the siphon pipes on March 26, 2020 was $7,500. It is estimated that the cost to perform a more comprehensive cleaning of the siphon pipes and remove the accumulated grease from the siphon pipes is approximately $25,000. The CITY will pay CuSD 38.5% percent of the actual cost of the one-time deep cleaning of the siphon structure.
B. CITY agrees to a 38.5% percent share in the cost of one-time CCTV inspection and condition assessment of the siphon pipes. If it is determined that the pipes need to be replaced or rehabilitated in the near term or in Attachment 1
the future, the CITY agrees to a 38.5% percent share in the cost of the one-time siphon pipe replacement or rehabilitation project.
C. After the one-time deep cleaning, inspection, and possible repair or replacement of the shared siphon pipes, CuSD agrees to operate and maintain all shared pipes along the flow diversion path from E. Estates Drive to S. Tantau Avenue, including the siphon pipes, at its expense. It is anticipated and agreed that the frequency and level of effort necessary for cleaning and maintenance will not be significantly increased by the addition of CITY flows through the system.
D. CITY agrees to perform all necessary coordination with LAFCO and to prepare and submit all necessary documents needed to implement the changes to the disputed border parcels that are listed above. CITY shall pay any LAFCO fees associated with mapping changes. CITY will submit a marked-up map showing the parcels of interest. If LAFCO requires a more formal exhibit that requires input from a surveyor, CuSD agrees to provide such an exhibit per the supplemental services as described in Item 5 E. below.
E. Any supplemental services will be provided by CuSD and compensated by CITY using the CuSD hourly rate schedule that is current at the time services are rendered.
6. Invoicing and Payments
For costs associated with the one-time cleaning, inspection, and possible repair or replacement of the siphon pipes, and for any other agreed upon expenses incurred by CuSD, the CITY will pay CuSD invoices within 45 days of receipt.
7. Term of the Agreement
The Term of the Agreement will be for a period of 30 years from the effective date. At the end of the 30-year period, the Agreement will automatically renew for another 10-year period and every ten years thereafter unless notice of intent to terminate is made in writing at least five (5) years prior to expiration of the current term of the agreement in order to provide the time necessary to design and construct an alternative system.
8. Indemnification
In lieu of, and notwithstanding the pro rata risk allocation which might otherwise be imposed between the parties pursuant to Government Code Section 895.6, the parties agree that all losses or liabilities incurred by a party shall not be shared pro rata but instead the CITY and CuSD agree that pursuant to Government Code Section 895.4, each of the parties hereto shall fully indemnify and hold each of the other parties, their officers, board members, employees and agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as defined by Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying party, its officers, board members, employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such party under this Agreement. No party, nor any officer, board member, employee or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of other parties hereto, their officers, board members, employees, or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such other parties under this Agreement.
9. Governing Law and Compliance with Laws
CITY and CuSD agree that California law will govern this Agreement. In the performance of this Agreement CITY and CuSD will comply with all applicable laws, ordinances, codes, and regulations of the federal, state, and local government. CuSD will comply with all applicable laws, ordinances, codes and regulations of the federal, state, and local government while conveying wastewater flows from the CITY system until CITY flows are returned back to the CITY system.
Attachment 1
10. Notification
Any and all notices or other communications required to be given hereunder will be deemed to have been delivered upon deposit in the United States mail, postage prepaid, addressed as specified below or as later amended in writing:
CITY CuSD
City of Sunnyvale Cupertino Sanitary District
456 West Olive Avenue 20863 Stevens Creek Blvd. Suite 100 Sunnyvale, CA 94086 Cupertino, CA 95014
Attn.: City Manager Attn.: District Manager/Engineer
11. Successors and Assigns
This Agreement, and all the terms, covenants, and conditions hereof, will apply to and bind the successors and assigns of the CITY and CuSD.
12. Signing by Counterpart
This Agreement may be signed in counterpart and each signed document will constitute the whole as if a single document was signed by both PARTIES.
13. Venue
In the event that suit is brought by either CITY or CuSD, each agrees that venue will be exclusively vested in the state courts of the County of Santa Clara.
14. Disputes
A. This Agreement requires that CITY and CuSD work together in good faith to achieve the intent of this Agreement. In the event that a dispute arises as to the proper interpretation of the respective obligations and responsibilities of the parties under this Agreement, or as to any other aspect of this Agreement, CITY and CuSD agree that they each will assign the appropriate individuals to meet and make good faith efforts to negotiate in order to arrive at a resolution of the dispute.
B. If after employing this informal resolution process either CITY or CuSD may request an independent, mutually agreed upon mediator to facilitate further negotiation with the costs shared equally between each PARTY.
However, nothing herein will prevent either CITY or CuSD from exercising any rights it may have to enforce the terms of this Agreement at law or in equity.
15. Waiver
The CITY and CuSD agree that waiver by either PARTY of any breach or violation of any term or condition of this Agreement will not be deemed to a waiver of any other term of condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition. The acceptance by a PARTY of the performance of any work or services by the other PARTY will not be deemed to be a waiver of any term or condition of this Agreement.
16. Amendments
This Agreement may be amended, upon mutual agreement by both parties in writing.
Attachment 1
CITY OF SUNNYVALE CUPERTINO SANITARY DISTRICT
By: _____________________________ By: _______________________________ William Bosworth
City Manager President of the Board of Directors
Date: _________________________ Date: _____________________________ ATTEST: ATTEST:
______________________________ __________________________________ City Clerk Secretary of the Board
APPROVED AS TO FORM: APPROVED AS TO FORM:
______________________________ __________________________________ City Attorney District Counsel
Attachment 1
ATTACHMENT A
Diagrams of Flow Transfer
Attachment 1
Sunnyvale & CuSD
Proposed 91-home sewer flow transfer
Location Map
Sunnyvale
Cupertino
Project Location
Sunnyvale
sewer system
inside Cupertino
Sunnyvale sewer system
inside Sunnyvale
Attachment 1
Total flow crossing CuSD siphon:
145 CuSD + 91 City = 236 homes.
City portion of flow = 38.5%
Total flow reaching diversion weir manhole:
525 CuSD + 91 City = 616 homes.
City portion of flow = 15%
145 homes served by CuSD on
west side of creek.
(shown in red)
91 homes served
by Sunnyvale
(shown in green)
Future 20-ft sewer
into CuSD system.
Existing Sunnyvale pipe
bridge to be removed.
Existing CuSD sewer siphon
to be shared by City and CuSD
380 homes served by CuSD on
east side of creek.
(shown in red)
Existing Sunnyvale
sewers (in green)
Phil Lane
Barnhart
Ave.
Existing CuSD manhole No 2533-13
to include diversion weir.
Existing, unused sewer (in blue) to carry 91
homes of flow into Sunnyvale system.
Shadygrove Drive
S. Tantau Ave.
E. Estates Drive
Sunnyvale & CuSD
Proposed 91-home sewer flow transfer
Detail Map
Attachment 1
Sunnyvale & CuSD
Proposed 91-home sewer flow transfer
Upstream Flow Diversion
at E. Estates Drive
Existing Sunnyvale
sewer
Existing CuSD
sewer
New diversion
sewer to be
installed.
Attachment 1
Existing
CuSD
sess wer
flows
south
to
CuSD
lift
station.
S. Tantau Ave.
Existing
CuSD
manhole
No.
2533-13
to
include
flow
split
weir
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SeS wer
to
be
owned
and
maintained
by
Sunnyvale.
Sunnyvale
MH
A108-202
SuS nnyvale
MH
A108-2010
Sunnyvale & CuSD
Proposed 91-home sewer flow transfer
Downstream Flow Diversion
at S. Tantau Ave.
Attachment 1