Unified Sewerage Agency - Surface Water Management CITY OF TIGARD, OREGON
RESOLUTION NO. 90-q3
A RESOLUTION APPROVING A SURFACE WATER MANAGEMENT AGREEMENT AND A
CITY COMMITTEE AGREEMENT WITH UNIFIED SEWERAGE AGENCY (USA) ; AND
AUTHORIZING THE MAYOR AND CITY RECORDER TO SIGN BOTH AGREEMENTS
WHEREAS, the Unified Sewerage Agency (USA) has developed a county-
wide surface water management plan to facilitate clean up of the
Tualatin River; and
WHEREAS, the City of Tigard and USA previously entered into an
agreement for the cooperative operation of sanitary sewer service
facilities and that agreement does not address surface water
management;
WHEREAS, the attached agreement addresses both sanitary sewer and
surface water management and combines provisions from the previous
agreement and its amendments; and
WHEREAS, a second attached agreement provides for a review
committee made up of representatives from each city participating
in the county-wide plan; and
WHEREAS, the City Council finds it to be in the best interest of
the City to participate in the surface water management plan; and
WHEREAS, the City of Tigard and USA have authority to enter into
agreements for the cooperative operation of service facilities
under ORS 45-1.560 and ORS 'Chapter 190;
NOW, THEREFORE, BE 7T RESOLVED by the Tigard City Council that:
Section 1. The agreements with Unified Sewerage Agency (USA)
providing for sanitary sewer and surface water management are
approved.
Section 2. The Mayor and City Recorder are hereby authorized
to sign the two agreements with USA attached to this resolution as
Exhibits "A" and "B" .
This une 1990.
ayor - City of Tigard
°
T.. t APPROVED A O FORM:
Clty' Recorder - City of Ti rd City At orney - City of Tigard
e
Certified to be a'True Copy of
Original on file
rtmd\tigard\usaagree.res By:
City corder-City of 7 i and
Date:_._,.�,r �
14 Pq
AGREEMENT �-A
THIS AGREEMENT is made and entered into s of the day of
1990, between the City of �.�� a
gnu icipal corporation of the State of Oregon, he inafter referred
to as "City, " and the Unified Sewerage Agency of Washington County,
a municipal corporation and county service district, hereinafter
referred to as the "Agency. "
WHEREAS, the Agency was duly formed and organized under ORS
Chapter 451, has the authority to provide sanitary sewerage
treatment facilities, and to provide for storm and surface water
management within its boundaries; and City is within the Agency by
action of its Council and pursuant to an election duly conducted
within the boundaries of the Agency; and
WHEREAS, City and Agency have the authority to enter into
contracts for the cooperative operation of service. facilities under
ORS 451. 560 and ORS Chapter 190 ; and
WHEREAS, Agency has developed a master plan and a master plan
update for sewerage facilities, and a surface water management plan,
and is in a position to coordinate and unify sanitary sewer
treatment facilities and storm and surface water management, and
regulation of waste water quality and quantity into an integrated
system for the areas within the Agency; and
WHEREAS,. City .and Agency previously entered into an Agreement
for the cooperative operation of sanitary sewer service facilities,
and said Agreement is in need of amendment to address surface water
management functions and other issues; and it would be in the best .
interest of the Agency and City to consolidate provisions of the
original agreement, previous amendments, and additional amendments
into a single document.
NOW, THEREFORE, in consideration of the covenants and
agreements to be kept and performed by the parties hereto, it is
agreed as follows:
Section 1. Definition of Terms
Wherever the following terms are used in this agreement they
shall have the following meaning unless otherwise specifically
indicated by the context in which they appear :
A. Board shall mean the Board of Directors of the Agency, its
governing body.
B. Connection Charge means the amount charged for connection
to the sanitary or storm and surface water system.
C. Council shall mean the City Council, governing body of the
City.
D. Dwelling Unit (DU) means a separate living unit with
kitchen facilities including those in multiple dwellings,
apartments, mobile homes and trailers. For nonresidential
properties, a DU or Dwelling Unit Equivalent (DUE) shall be
determined by Agency Ordinance, and Agency resolutions adopted
thereunder .
E. Equivalent Service Unit (ESU) is the unit of impervious
surface area which generates the storm and surface water runoff
equal to a single family residential property, as determined by
Agency Ordinance, and Agency resolutions adopted thereunder .
F. Impervious Surface Area includes all areas that have been
altered from their natural state such that they do not allow the
infiltration and retention equivalent to that of undisturbed soil.
This shall include, but is not limited to pavement, buildings,
decks, parking areas, and compacted gravel areas.
G. Industrial Waste. means any liquid, gaseous, radioactive or
solid waste substance or a combination thereof resulting from any
process of industrial or manufacturing business, or from the
development or recovery of natural resources . For the purposes of
this agreement, Industrial Waste shall also include any substance
regulated under 33 USC Sec 1317, together with regulations adopted
thereunder .
H. Operation and Maintenance means the regular performance of
work required to assure continued functioning of the storm and
surface water' system and the sanitary. sewerage system and corrective
measures taken to repair facilities to keep them in operating
condition.
I. Order means Resolutions, Orders and Directives of the.
Agency prescribing general standards and conditions for construction
or use of the storm and surface water facilities and the sanitary
sewerage facilities, and rates and charges therefor.
J. Permit Application and Inspection Fee means fees .charged
an applicant for permits and related inspections for connections to
the storm and surface water system and the sanitary sewerage system.
K. Person means the state of Oregon, any individual, public
or private corporation, political subdivision, governmental agency,
municipality, industry, copartnership, association, firm, trust,
estate or any other legal entity whatsoever .
L. Sanitary Sewerage System means any combination of sewer
treatment plant, pumping, or lift facilities, sewer pipe, force
mains, laterals, manholes, side sewers, laboratory facilities and
equipment, and any other facilities for the collection, conveyance,
treatment and disposal of sanitary sewage comprising the total
publicly-owned sanitary sewerage system within Agency jurisdiction,
to which storm, surface and ground waters are not intentionally
admitted.
Page 2
M. Sanitary Sewer Service Charge means a regular charge to a
property owner or occupant of designated premises for the use of the
sanitary sewerage system.
N. Sewage Treatment Facility means any facility designed for
the purpose of the appropriate treating, holding, disposal, and
discharge or reuse of sanitary sewage, including byproducts of such
treatment processes.
O. Sewage Collection System means any system of pipes, and
pumping facilities designed for the collection of sanitary sewage
for the purpose of transporting such material to a sewage treatment
facility.
P. Standards means the standards and conditions of use of the
storm and surface water system and the sanitary sewer system as
specified and adopted by the Agency. Standards also shall mean
applicable statutes and rules of the United States and the State of
Oregon.
Q. Storm and Surface Water Service Charge means a regular
charge to a property owner or occupant of designated premises for
the contribution of runoff or pollution, (as defined in ORS
468 . 700) , or both to the storm and surface water system.
R. Storm and Surface Water System means any combination of
publicly owned storm and surface water quality treatment facilities ,
pumping, or lift facilities, storm drain pipes and culverts, open
channels, creeks and rivers, force mains, laterals, manholes, catch
basins and inlets, grates and covers, detention and retention
facilities, laboratory facilities and equipment, and any other
publicly owned facilities for the collection, conveyance, treatment
and disposal of storm and surface water comprising the total
publicly owned storm and surface water system within Agency
jurisdiction, to which sanitary sewage flows are not intentionally
admitted.
S. Storm and Surface Water System Development Fee is a charge
for construction or other activity that causes or is likely to
cause, an increase from the natural state of storm water runoff
quantity or pollution, (as defined in ORS 468.700) , or both, to the
storm and surface water system. Such fee is for capital
improvements associated with such construction or other activity,
and may be a reimbursement fee or a fee for improvements to be
constructed.
Page 3
Section 2 . Operating Procedures and Relationships
The City agrees to:
A. Follow and enforce the orders promulgated by the
Agency, and to notify Agency of apparent violations
thereof which may require Agency legal action. The
Agency, in cooperation with the Cities and the
Committee formed in Section 5-C, shall adopt policies,
standards, specifications , and performance criteria
necessary for the proper and effective operation of
the Agency and to comply with State and Federal
permits, laws and regulations .
B. Refer persons who may require an industrial waste
discharge permit to the Agency. City shall not issue
any sanitary sewer permit to non-residential customers
without verification that the Agency has issued an
industrial waste permit, or the Agency has determined
that none is required.
C. Provide notice to and obtain Agency review and
approval of plans and specifications as the Agency may
require for any addition, modification or
reconstruction (other than repairs) of the
publicly-owned sanitary sewerage system prior to
undertaking work thereon.
D. Provide notice to and obtain Agency review and
approval of plans and specifications as the Agency may
require prior to allowing any addition or construction
(other than repairs) of the publicly-owned storm and
surface water system to insure conformance to adopted
Agency standards, orders, and master plans.
E. Obtain Agency review and approval prior to entering
into any agreement for the use of the storm and
surface water system or the sanitary sewerage system,
other than for issuance of connection permits.
F. Inform the Agency in writing not less than 30 days
prior to initiating or entering into any agreement for
the financing or incurring of indebtedness relating to
the storm and surface water system or the sanitary
sewerage system. City shall not obligate any Agency
revenues of the sewer fund or storm and surface water
fund, nor shall facilities of the sanitary or storm
and surface water system be obligated for any debt .
Page 4
G. Establish in its record a separate account for the
storm and surface water program and one for the
sanitary sewerage program for the purpose of
accounting for connection and user fees collected and
received by the City pursuant to this agreement .
H. Allow the Agency access at any reasonable time upon
reasonable notice to inspect and test storm and
surface water facilities and sewerage facilities
within the City.
I . Grant the Agency permits from time to time as may be
necessary for the installation of storm and surface
water facilities and sewerage facilities in the public
streets and ways of the City without imposing permit
issuance fees, provided that the Agency shall adhere
to any conditions required pursuant to ORS 451. 550 ( 6 ) .
J. Take such curative or remedial action as and when
necessary to maintain that portion of the
publicly-owned sanitary sewerage system under the
jurisdiction of the City in accordance with prescribed
Agency standards, subject , however , to budgetary
limitations and to the extent that the City may be
lawfully authorized to act.
K. Follow and accomplish the work program developed by
. the Agency for the storm and surface water program for
that portion of the publicly-owned storm and surface
water system under the jurisdiction of the City as
defined in Section 3-A in accordance with prescribed
Agency standards, subject, however , to budgetary
limitations and to the extent that the City may be
lawfully authorized to act.
L. To issue no new permit for the construction within, or
modification to a wetland, floodway, or floodplain
without first receiving the written approval by the
Agency to do so. This paragraph shall not apply to
permits issued by City pursuant to a current permit
under 33 USC Section 1344 (e) , (a section 404 general
permit) , and within the scope of such permit .
M. To pursue when City deems feasible and appropriate the
conversion of storm and surface water facilities from
private to public owner§hip, through the acquisition
of easements and other property rights as necessary,
for those privately owned storm and surface water
facilities which are identified as being necessary or
appropriately a part of the public system.
Page 5
Section 3. Ownership and Responsibilities
A. The City shall be responsible for the installation,
construction, operation, maintenance, repair , replacement ,
and financing; processing of non-industrial and erosion
control permit applications; inspection of connections;
billing, collection, accounting and recording connection
fees, inspection fees, and monthly service charges; within
its corporate limits and within the purview of this
agreement for the following facilities and functions:
1. Sanitary sewer lines and facilities having a diameter
of less than 24 inches , unless otherwise agreed to by
the Agency and City.
2. Storm and surface water facilities within the City,
and the portions of the total work program, to be the
responsibility of the City are identified and
described in the Program Summary and Map, hereby
incorporated as Exhibit A. This Program Summary and
Map may be modified from time to time by mutual
written agreement of the City and Agency.
B. The Agency shall be responsible for the installation,
construction, operation, maintenance, repair , replacement,
and the financing thereof, of all publicly owned storm and
surface water facilities, and sanitary sewerage facilities
within .the City not identified in Section A above. In
addition, the Agency shall have exclusive jurisdiction
over industrial waste discharges with regard to permits,
service fees, billings, collection, regulations and
enforcement. Upon receipt of any application for an
industrial waste discharge permit within a City territory,
the Agency shall so inform City and shall coordinate with
any other applicable development or construction permits
of City.
C. The City previously transferred to Agency certain real and
personal property of the sanitary sewerage system. The
City hereby transfers, assigns and set over to the Agency
all of the City' s ownership interests in and to the storm
and surface water facilities of the City listed in Exhibit
A and described in Section B above, as being the
responsibility of the Agency. City further transfers to
Agency all easements, rights-of-way and permits held by
the City with respect to the foregoing but subject to the
terms and provisions thereof, to all of which the Agency
shall be bound and conform and shall save, hold harmless
and indemnify the City from any failure to conform
thereof, to the extent allowed by law. City and Agency
shall execute all documents necessary to transfer title to
any real property interests by December 31 , 1990 .
Page 6
With respect to all transfers of fee title to real
property, each party shall have the right, at its expense,
to perform an environmental assessment prior to accepting
title to property. Any terms and conditions prescribing
cleanup of the property shall be subject to negotiation of
the parties and included in the instrument of transfer of
the property. Agency agrees that all of its right, title
and interest in any and all facilities transferred to it
by City under this subsection shall revert to City no
later than six months after Agency discontinues operation
or use of such facility and Agency agrees to execute any
and all documents necessary to effect such conveyance.
D. The City hereby excepts and reserves to itself all
interests in real property not expressly to be transferred
by this agreement, including all such property utilized in
connection with treatment facilities; provided, however ,
that the City does hereby grant to the Agency consent for
the nonexclusive use of such lands as may be necessary to
enable the Agency to own, operate and maintain such
facilities.
E. Agency will not establish local assessment districts
within the City, without first obtaining City approval.
F. Agency will process applications from City pursuant to
Section 2-L for Wetland, Floodplain, and Floodway
modifications. Upon review and approval by USA, and upon
request by City, the Agency shall act as a facilitator and
liaison for State and Federal review and permit processes.
Section 4 . Administration, Operation and Maintenance of Sewerage
Facilities
City and Agency agree that:
A. City and Agency agree to divide revenues collected
pursuant to this agreement as follows:
1. To remit payments on a monthly basis, with a
report on Agency-designated forms.
2. Payments shall be due upon 30 days of receipt of
the revenue by the billing party, unless the
payment has been appealed by the billing party.
If the payment has been appealed by the billing
party under the dispute resolution process of
Section 6, the amount in dispute may be withheld
or paid without prejudice to either party.
Page 7
3 . The Agency Board shall determine and certify
annually for the sanitary sewerage program, and
for the storm and surface water program, the
portion of the monthly service charge, and the
portion of the connection charge allocated for
each of the following:
a. Retirement of revenue bonds
b. The portion required for the City system as
defined in Section 3-A
C. The portion required for the Agency
responsibilities
4 . City shall remit to the Agency the portion of
sanitary sewer service charges and connection
fees collected, and storm and surface water
service charges and connection fees collected, as
identified in Sections 4-A-3-a and c, and shall
retain the service charge and connection fee
revenue identified in Section 4-A-3-b.
5. City may charge and collect a service charge or
connection fee at a higher rate per DUE and ESU
than that set by the Agency. when the City
determines it is needed for the local City system.
The City shall retain 100% of these additional
revenues collected. Such additional charge shall
be consistent with applicable federal rules in
order to preserve eligibility for grants and other
funding programs.
6. For connection fees paid by "Bancroft" financing,
the billing party shall remit the portion of each
payment collected, including interest on the
Bancroft payment, as determined in Section
4-A-3.
7. For permit and inspection fees for private
development construction of public storm and
surface water facilities and sanitary sewer
facilities, and for erosion control permit fees,
the City shall remit to the Agency a fee to
compensate the Agency for its costs for services
performed relative to these fees, as prescribed by
Agency Order.
8. For Industrial Waste fees, Agency shall remit to
City twenty percent ( 200) of connection, volume,
and monthly service charges collected. Agency
shall retain one-hundred percent (100% ) of the
annual permit fee, and any penalty fees, COD, SS
and other fees that may be assessed.
Page 8
B. City will institute administrative procedures within a
reasonable time to diligently maintain regular
billings and collection of fees, adjust complaints
thereto, and pursue delinquency follow-ups and take
reasonable steps for collection thereof .
C. Agency or City may at any reasonable time upon
reasonable notice inspect and audit the books and
records of the other with respect to matters within
the purview of this agreement . Additionally, the City
and Agency shall prepare and submit to each other a
performance report of the storm and surface water
functions, and the sanitary sewer functions for which
each is responsible. The performance report shall be
prepared every 6 months, and shall be provided to the
other no later than September 1 and March 1 of each
year . The performance report, for each function,
shall address the performance in those areas necessary
for permit compliance.
D. The City and the Agency may each need extra help from
time to. time that might be supplied by the other . In
such a case, either City or the Agency in utilizing
the services of an employee of the other shall pay the
lending government the employee ' s salary rate plus
direct salary overhead currently in effect for the
time worked.
E. Interest shall accrue on late payments at a rate of
three-quarters of one percent (0 .750) per month on the
unpaid balance.
F. The City and Agency may, each at its own cost, install
permanent and temporary volume and quality monitoring
stations to determine the. effectiveness of City and
Agency programs.
G. The performance reports from each City will be
reviewed by the Committee established in Section
5-C, following the procedure defined in a separate
agreement between the Agency and member Cities.
Section 5 . Other Provisions
The City and the Agency further agree that:
A. The Agency will not extend sewer service to areas
outside the City except with prior approval of the
City where such areas are included in the Urban
Planning Area Agreement between the City and
the appropriate county or counties.
Page 9
B. The City and the Agency will each obtain such
insurance contracts as necessary to cover the
liabilities of the City and the Agency respectively
, for the risks and liabilities arising from activities
and operations under this agreement. Each party
hereto shall cause the other to be named as an
additional insured on its policy or policies as to the
obligations under the terms of this agreement . In the
event that either party chooses to be self insured,
that party shall maintain and furnish proof of
separately identified and unencumbered reserves for
the maximum liability allowed under state law.
C. Establish a Committee made up of one representative
from Washington County and one representative from
each member City within the Agency, which will- meet
quarterly, or more frequently if needed, to review,
advise, and be heard by the Agency on the standards,
regulations and specifications, work programs, capital
improvement programs, rates and charges, long range
planning, and other matters covered by the Agreements
with the member Cities .
D. At such time as the Agency shall discontinue operation
or use of any facilities on City-owned premises, the
Agency shall remove such equipment, facilities or
fixtures therefrom within a period of six months after
such discontinuance unless otherwise determined by the
parties. The Agency shall demolish or remove
facilities, the sites thereof shall be left free and
clear of all demolition waste and debris. Any
environmental clean-up necessitated by Agency
operation shall be the sole responsibility of Agency.
In the event of cleanup involving acts of third .
parties, the cleanup costs therefor shall be subject
to negotiation by the parties.
E. City and Agency shall each be responsible for the
negligent or wrongful acts of its officers, employees,
agents, and volunteers, while performing work related
to this agreement . Each party shall be solely
responsible for defense, costs or payments arising
from legal challenge alleging improper use by that
party of funds derived from this agreement, or
otherwise held by that party. Each party shall be
responsible for any liability arising out of its
ownership of real property and interests therein,
activities governed by an NPDES permit or other air or
water discharge permit issued by competent authority
to that party, and any conduct of that party subject
to direct regulation by state or federal authority.
Page 10
F. Nothing in this agreement shall be construed as a
limitation upon or delegation of the statutory and
home rule powers of the City, nor as a delegation or
limitation of the statutory powers of the Agency.
This Agreement shall not limit any right or remedy
available to City or Agency against third parties
arising from illegal acts of such third parties .
G. Where this Agreement calls for review or approval of a
fee or charge, Agency shall perform such review in a
timely manner, shall not unreasonably withhold
approval, and shall provide its decision to the City
in writing. If, within 30 days of written request by
City for approval by Agency, the Agency has failed to
provide a written response, the request shall be
deemed approved.
Section 6 Dispute Resolution; Remedies
A. In the event of a dispute between the parties regarding
their respective rights and obligations pursuant to this
Agreement, the parties shall first attempt to resolve the
dispute by negotiation. If a dispute is not resolved by
negotiation, the exclusive dispute resolution process to
be utilized by the parties shall be as follows :
1. Step 1. Upon failure of those individuals designated
by each party to negotiate on its behalf to reach an
" agreement or resolve a dispute, the nature of the
dispute shall be rendered to writing and shall be
presented to the City's Chief Executive Officer and
Agency General Manager , who shall meet and attempt to
resolve the issue. If the issue in the dispute is
resolved at this step, there shall be a written
determination of such resolution, signed by the
City's Chief Executive Officer and Agency General
Manager, which determination shall be binding on the
parties. Resolution of an issue at this step requires
concurrence of both parties ' representatives.
2. Step 2. In the event a dispute cannot be resolved at
Step 1, the matters remaining in dispute after Step 1
shall be reduced to writing and forwarded to the Mayor
and the Chairman of the Board of Directors. Upon
receipt of the written issue statement, the Mayor and
Chairman shall meet and attempt to resolve the issue.
If the issue is resolved at this step, a written
determination of such resolution shall be signed by
the Mayor and Chairman. Resolution of an issue at
this step requires concurrence of both the Mayor and
the Chairman.
Page 11
3 . Step 3 . In the event a dispute cannot be resolved at
Step 2, the parties shall submit the matter to
mediation. The parties shall attempt to agree on a
mediator . In the event they cannot agree, the parties
shall request a list of five ( 5) mediators from the
American Arbitration Association, or such other entity
or firm providing mediation services to which the
parties may further agree. Unless the parties can
mutually agree to a mediator from the list provided,
each party shall strike a name in turn, until only one
name remains. The order of striking names shall be
determined by lot. Any common costs of mediation
shall be borne equally by the parties, who shall each
bear their own costs and fees therefor . If the issue
is resolved at this step, a written determination of
such resolution shall be signed by both parties.
Resolution of an issue at this step requires
concurrence of by both parties . In the event a
dispute is not resolved by mediation, the aggrieved
party may pursue any remedy available to it under
applicable law.
B. Neither party may bring a legal action against the other
party to interpret or enforce any term of this Agreement
in any court unless the party has first attempted to
resolve the matter by means of the dispute resolution of
subsection A above. This shall not apply to disputes
arising from a cause other than interpretation or
enforcement of this Agreement.
Section 7 Effect of this Agreement
This Agreement shall supersede all prior agreements and amendments
between the parties with respect to sanitary sewerage and service,
storm and surface water management; provided that, except as
expressly modified herein, all rights, liabilities, and obligations
of such prior agreements shall continue. This agreement shall be
effective upon its execution by both parties hereto, and shall
continue in effect for 20 years from and after the date hereof.
This agreement may be modified only by written amendment .
Section 8 Severability
In the event a court of competent jurisdiction shall deem any
portion or part of this Agreement to be unlawful or invalid, only
that portion or part of the Agreement shall be considered
unenforceable. The remainder of this Agreement shall continue to be
valid.
Page 12
IN WITNESS WHEREOF, this instrument has been executed in
duplicate by authority of lawful actions by the City Council and
Agency Board of Directors .
UNIFIED SEWERAGE AGENCY CITY OF , OREGON
OF WASHINGTON COUNTY, OREGON
By By / O
Chairman, Board irectors ayor
Attest.
Approved as to Form: City Recorder
lvd Aaa 'Z"-k' �
~✓
Attorney for Agency Aty Attor ey
A";SOVED-UN rED WWERAGE AGENCY
BOARD OF DIRECTORS
MINUTE ORDER# ...........1IRQ0... A.lIl
.�i..........
DATE .... � .�,. ....
BY ....... .
CLERK OF THE ADEN
Page 13
NOTE: This Exhibit "A" is-the Exhibit referred to in the foregoing agreement.
Also, as a part of this Exhibit "A" there is a map entitled "The" City
of Tigard Proposal U.S.A. Maintenance Areas." Copies are available for
viewing at the City Recorder's office and will also be available during
the June 25, 1990 City Council meeting.
EXHIBIT A
PROGRAM SUMMARY
The City shall be responsible for all storm and surface water facilities within
the corporate limits of the City except for those specifically identified on
the attached map as Proposed USA Maintenance Areas. The USA Maintenance Areas
include the floodplain and wetlands associated with the drainage courses shaded
in blue on the attached map.
The City retains ownership and maintenance responsibility for all public park
facilities and public pathways within the USA Maintenance Areas.
City responsibility for street sweeping and catch basin cleaning excludes
roadways under the jurisdiction of Washington County and the Oregon State
Highway Division. The City is not responsible for maintenance of storm
drainage facilities within the rights of way of State highways, except as
provided in agreements between the State Highway Division and the City.
l rrll
1 '
AGREEMENT Gi
THIS AGREEMENT is made and entered into as of the c) day of
1990 , between the City of °cam[ a
nicipal corporation of the State of Oregon, h reinafter referred
to as "City, " and the Unified Sewerage Agency of Washington County,
a municipal corporation and county service district, hereinafter
referred to as the "Agency. "
WHEREAS, the Agency was duly formed and organized under ORS
Chapter 451, has the authority to provide sanitary sewerage
treatment facilities, and to provide for storm and surface water
management within its boundaries; and City is within the Agency by
action of its Council and pursuant to an election duly conducted
within the boundaries of the Agency; and
WHEREAS, City and Agency have the authority to enter into
contracts for the cooperative operation of service facilities under
ORS 451 . 560 and ORS Chapter 190; and
WHEREAS, Agency has developed a master plan and a master plan
update for sewerage facilities, and a surface water management plan,
and is in a position to coordinate and unify sanitary sewer
treatment facilities and storm and surface water management, and
regulation of waste water quality and quantity into an integrated
system for the areas within the Agency; and
WHEREAS, City and Agency previously entered into an Agreement
for the cooperative operation of sanitary sewer service facilities,
and said Agreement is in need of amendment to address surface water
management functions and other issues; and it would be in the best
interest of the Agency and City to consolidate provisions of the
original agreement, previous amendments, and additional amendments
into a single document.
NOW, THEREFORE, in consideration of the covenants and
agreements to be kept and performed by the parties hereto, it is
agreed as follows:
Section 1. Definition of Terms
Wherever the following terms are used in this agreement they
shall have the following meaning unless otherwise specifically
indicated by the context in which they appear :
A. Board shall mean the Board of Directors of the Agency, its
governing body.
B. Connection Charge means the amount charged for connection
to the sanitary or storm and surface water system.
C. Council shall mean the City Council, governing body of the
City.
D. Dwelling Unit (DU) means a separate living unit with
kitchen facilities including those in multiple dwellings,
apartments , mobile homes and trailers . For nonresidential
properties, a DU or Dwelling Unit Equivalent (DUE) shall be
determined by Agency Ordinance, and Agency resolutions adopted
thereunder .
E. Equivalent Service Unit (ESU) is the unit of impervious
surface area which generates the storm and surface water runoff
equal to a single family residential property, as determined by
Agency Ordinance, and Agency resolutions adopted thereunder .
F. Impervious Surface Area includes all areas that have been
altered from their natural state such that they do not allow the
infiltration and retention equivalent to that of undisturbed soil .
This shall include, but is not limited to pavement, buildings,
decks, parking areas, and compacted gravel areas .
G. Industrial Waste means any liquid, gaseous, radioactive or
solid waste substance or a combination thereof resulting from any
process of industrial or manufacturing business, or from the
development or recovery of natural resources. For the purposes of
this agreement, Industrial Waste shall also include any substance
regulated under 33 USC Sec 1317, together with regulations adopted
thereunder .
H. Operation and Maintenance means the regular performance of
work required to assure continued functioning of the storm and
surface water system and the sanitary sewerage system and corrective
measures taken to repair facilities to keep them in operating
condition.
I . Order means Resolutions, Orders and Directives of the
Agency prescribing general standards and conditions for construction
or use of the storm and surface water facilities and the sanitary
sewerage facilities, and rates and charges therefor .
J. Permit Application and Inspection Fee means fees charged
an applicant for permits and related inspections for connections to
the storm and surface water system and the sanitary sewerage system.
K. Person means the state of Oregon, any individual, public
or private corporation, political subdivision, governmental agency,
municipality, industry, copartnership, association, firm, trust,
estate or any other legal entity whatsoever .
L. Sanitary Sewerage System means any combination of sewer
treatment plant, pumping, or lift facilities, sewer pipe, force
mains, laterals, manholes, side sewers, laboratory facilities and
equipment, and any other facilities for the collection, conveyance,
treatment and disposal of sanitary sewage comprising the total
publicly-owned sanitary sewerage system within Agency jurisdiction,
to which storm, surface and ground waters are not intentionally
admitted.
Page 2
M. Sanitary Sewer Service Charge means a regular charge to a
property owner or occupant of designated premises for the use of the
sanitary sewerage system.
N. Sewage Treatment Facility means any facility designed for
the purpose of the appropriate treating, holding, disposal , and
discharge or reuse of sanitary sewage, including byproducts of such
treatment processes.
O. Sewage Collection System means any system of pipes, and
pumping facilities designed for the collection of sanitary sewage
for the purpose of transporting such material to a sewage treatment
facility.
P . Standards means the standards and conditions of use of the
storm and surface water system and the sanitary sewer system as
specified and adopted by the Agency. Standards also shall mean
applicable statutes and rules of the United States and the State of
Oregon.
Q. Storm and Surface Water Service Charge means a regular
charge to a property owner or occupant of designated premises for
the contribution of runoff or pollution, (as defined in ORS
468 . 700) , or both to the storm and surface water system.
R. Storm and Surface Water System means any combination of
publicly owned storm and surface water quality treatment facilities,
pumping, or lift facilities, storm drain pipes and culverts, open
channels, creeks and rivers, force mains, laterals, manholes, catch
basins and inlets, grates and covers, detention and retention
facilities, laboratory facilities and equipment, and any other
publicly owned facilities for the collection, conveyance, treatment
and disposal of storm and surface water comprising the total
publicly owned storm and surface water system within Agency
jurisdiction, to which sanitary sewage flows are not intentionally
admitted.
S. Storm and Surface Water System Development Fee is a charge
for construction or other activity that causes or is likely to
cause, an increase from the natural state of storm water runoff
quantity or pollution, (as defined in ORS 468 . 700) , or both, to the
storm and surface water system. Such fee is for capital
improvements associated with such construction or other activity,
and may be a reimbursement fee or a fee for improvements to be
constructed.
Page 3
Section 2 . Operating Procedures and Relationships
The City agrees to:
A. Follow and enforce the orders promulgated by the
Agency, and to notify Agency of apparent violations
thereof which may require Agency legal action. The
Agency, in cooperation with the Cities and the
Committee formed in Section 5-C, shall adopt policies ,
standards, specifications, and performance criteria
necessary for the proper and effective operation of
the Agency and to comply with State and Federal
permits, laws and regulations .
B. Refer persons who may require an industrial waste
discharge permit to the Agency. City shall not issue
any sanitary sewer permit to non-residential customers
without verification that the Agency has issued an
industrial waste permit, or the Agency has determined
that none is required.
C. Provide notice to and obtain Agency review and
approval of plans and specifications as the Agency may
require for any addition, modification or
reconstruction (other than repairs) of the
publicly-owned sanitary sewerage system prior to
undertaking work thereon.
D. Provide notice to and obtain Agency review and
approval of plans and specifications as the Agency may
require prior to allowing any addition or construction
(other than repairs) of the publicly-owned storm and
surface water system to insure conformance to adopted
Agency standards, orders, and master plans.
E. Obtain Agency review and approval prior to entering
into any agreement for the use of the storm and
surface water system or the sanitary sewerage system,
other than for issuance of connection permits.
F. Inform the Agency in writing not less than 30 days
prior to initiating or entering into any agreement for
the financing or incurring of indebtedness relating to
the storm and surface water system or the sanitary
sewerage system. City shall not obligate any Agency
revenues of the sewer fund or storm and surface water
fund, nor shall facilities of the sanitary or storm
and surface water system be obligated for any debt .
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G. Establish in its record a separate account for the
storm and surface water program and one for the
sanitary sewerage program for the purpose of
accounting for connection and user fees collected and
received by the City pursuant to this agreement .
H. Allow the Agency access at any reasonable time upon
reasonable notice to inspect and test storm and
surface water facilities and sewerage facilities
within the City.
I . Grant the Agency permits from time to time as may be
necessary for the installation of storm and surface
water facilities and sewerage facilities in the public
streets and ways of the City without imposing permit
issuance fees, provided that the Agency shall adhere
to any conditions required pursuant to ORS 451 . 550 ( 6) .
J. Take such curative or remedial action as and when
necessary to maintain that portion of the
publicly-owned sanitary sewerage system under the
jurisdiction of the City in accordance with prescribed
Agency standards, subject , however , to budgetary
limitations and to the extent that the City may be
lawfully authorized to act .
K. Follow and accomplish the work program developed by
the Agency for the storm and surface water program for
that portion of the publicly-owned storm and surface
water system under the jurisdiction of the City as
defined in Section 3-A in accordance with prescribed
Agency standards, subject , however , to budgetary
limitations and to the extent that the City may be
lawfully authorized to act .
L. To issue no new permit for the construction within, or
modification to a wetland, floodway, or floodplain
without first receiving the written approval by the
Agency to do so. This paragraph shall not apply to
permits issued by City pursuant to a current permit
under 33 USC Section 1344 (e) , (a section 404 general
permit) , and within the scope of such permit .
M. To pursue when City deems feasible and appropriate the
conversion of storm and surface water facilities from
private to public ownership, through the acquisition
of easements and other property rights as necessary,
for those privately owned storm and surface water
facilities which are identified as being necessary or
appropriately a part of the public system.
Page 5
r
Section 3 . Ownership and Responsibilities
A. The City shall be responsible for the installation,
construction, operation, maintenance, repair , replacement ,
and financing; processing of non-industrial and erosion
control permit applications; inspection of connections;
billing, collection, accounting and recording connection
fees, inspection fees, and monthly service charges; within
its corporate limits and within the purview of this
agreement for the following facilities and functions :
1 . Sanitary sewer lines and facilities having a diameter
of less than 24 inches, unless otherwise agreed to by
the Agency and City .
2 . Storm and surface water facilities within the City,
and the portions of the total work program, to be the
responsibility of the City are identified and
described in the Program Summary and Map, hereby
incorporated as Exhibit A. This Program Summary and
Map may be modified from time to time by mutual
written agreement of the City and Agency.
B. The Agency shall be responsible for the installation,
construction, operation, maintenance, repair, replacement,
and the financing thereof , of all publicly owned storm and
surface water facilities, and sanitary sewerage facilities
within the City not identified in Section A above. In
addition, the Agency shall have exclusive jurisdiction
over industrial waste discharges with regard to permits,
service fees, billings , collection, regulations and
enforcement. Upon receipt of any application for an
industrial waste discharge permit within a City territory,
the Agency shall so inform City and shall coordinate with
any other applicable development or construction permits
of City.
C. The City previously transferred to Agency certain real and
personal property of the sanitary sewerage system. The
City hereby transfers, assigns and set over to the Agency
all of the City' s ownership interests in and to the storm
and surface water facilities of the City listed in Exhibit
A and described in Section B above, as being the
responsibility of the Agency. City further transfers to
Agency all easements, rights-of-way and permits held by
the City with respect to the foregoing but subject to the
terms and provisions thereof, to all of which the Agency
shall be bound and conform and shall save, hold harmless
and indemnify the City from any failure to conform
thereof, to the extent allowed by law. City and Agency
shall execute all documents necessary to transfer title to
any real property interests by December 31, 1990 .
Page 6
With respect to all transfers of fee title to real
property, each party shall have the right , at its expense,
to perform an environmental assessment prior to accepting
title to property. Any terms and conditions prescribing
cleanup of the property shall be subject to negotiation of
the parties and included in the instrument of transfer of
the property. Agency agrees that all of its right , title
and interest in any and all facilities transferred to it
by City under this subsection shall revert to City no
later than six months after Agency discontinues operation
or use of such facility and Agency agrees to execute any
and all documents necessary to effect such conveyance.
D. The City hereby excepts and reserves to itself all
interests in real property not expressly to be transferred
by this agreement, including all such property utilized in
connection with treatment facilities; provided, however ,
that the City does hereby grant to the Agency consent for
the nonexclusive use of such lands as may be necessary to
enable the Agency to own, operate and maintain such
facilities.
E. Agency will not establish local assessment districts
within the City, without first obtaining City approval .
F. Agency will process applications from City pursuant to
Section 2-L for Wetland, Floodplain, and Floodway
modifications. Upon review and approval by USA, and upon
request by City, the Agency shall act as a facilitator and
liaison for State and Federal review and permit processes .
Section 4 . Administration, Operation and Maintenance of Sewerage
Facilities
City and Agency agree that:
A. City and Agency agree to divide revenues collected
pursuant to this agreement as follows:
1. To remit payments on a monthly basis, with a
report on Agency-designated forms.
2. Payments shall be due upon 30 days of receipt of
the revenue by the billing party, unless the
payment has been appealed by the billing party.
If the payment has been appealed by the billing
party under the dispute resolution process of
Section 6, the amount in dispute may be withheld
or paid without prejudice to either party.
Page 7
3 . The Agency Board shall determine and certify
annually for the sanitary sewerage program, and
for the storm and surface water program, the
portion of the monthly service charge, and the
portion of the connection charge allocated for
each of the following:
a. Retirement of revenue bonds
b. The portion required for the City system as
defined in Section 3-A
C. The portion required for the Agency
responsibilities
4 . City shall remit to the Agency the portion of
sanitary sewer service charges and connection
fees collected, and storm and surface water
service charges and connection fees collected, as
identified in Sections 4-A-3-a and c, and shall
retain the service charge and connection fee
revenue identified in Section 4-A-3-b.
5 . City may charge and collect a service charge or
connection fee at a higher rate per DUE and ESU
than that set by the Agency when the City
determines it is needed for the local City system.
The City shall retain 1000 of these additional
revenues collected. Such additional charge shall
be consistent with applicable federal rules in
order to preserve eligibility for grants and other
funding programs.
6. For connection fees paid by "Bancroft" financing,
the billing party shall remit the portion of each
payment collected, including interest on the
Bancroft payment, as determined in Section
4-A-3 .
7 . For permit and inspection fees for private
development construction of public storm and
surface water facilities and sanitary sewer
facilities, and for erosion control permit fees ,
the City shall remit to the Agency a fee to
compensate the Agency for its costs for services
performed relative to these fees, as prescribed by
Agency Order .
8 . For Industrial Waste fees, Agency shall remit to
City twenty percent ( 200) of connection, volume,
and monthly service charges collected. Agency
shall retain one-hundred percent ( 100%) of the
annual permit fee, and any penalty fees, COD, SS
and other fees that may be assessed.
Page 8
B. City will institute administrative procedures within a
reasonable time to diligently maintain regular
billings and collection of fees, adjust complaints
thereto, and pursue delinquency follow-ups and take
reasonable steps for collection thereof.
C. Agency or City may at any reasonable time upon
reasonable notice inspect and audit the books and
records of the other with respect to matters within
the purview of this agreement. Additionally, the City
and Agency shall prepare and submit to each other a
performance report of the storm and surface water
functions, and the sanitary sewer functions for which
each is responsible. The performance report shall be
prepared every 6 months, and shall be provided to the
other no later than September 1 and March 1 of each
year. The performance report, for each function,
shall address the performance in those areas necessary
for permit compliance.
D. The City and the Agency may each need extra help from
time to time that might be supplied by the other . In
such a case, either City or the Agency in utilizing
the services of an employee of the other shall pay the
lending government the employee' s salary rate plus
direct salary overhead currently in effect for the
time worked.
E. Interest shall accrue on late payments at a rate of
three-quarters of one percent ( 0 .750) per month on the
unpaid balance.
F. The City and Agency may, each at its own cost, install
permanent and temporary volume and quality monitoring
stations to determine the effectiveness of City and
Agency programs .
G. The performance reports from each City will be
reviewed by the Committee established in Section
5-C, following the procedure defined in a separate
agreement between the Agency and member Cities.
Section 5 . Other Provisions
The City and the Agency further agree that:
A. The Agency will not extend sewer service to areas
outside the City except with prior approval of the
City where such areas are included in the Urban
Planning Area Agreement between the City and
the appropriate county or counties.
Page 9
B. The City and the Agency will each obtain such
insurance contracts as necessary to cover the
liabilities of the City and the Agency respectively
for the risks and liabilities arising from activities
and operations under this agreement. Each party
hereto shall cause the other to be named as an
additional insured on its policy or policies as to the
obligations under the terms of this agreement . In the
event that either party chooses to be self insured,
that party shall maintain and furnish proof of
separately identified and unencumbered reserves for
the maximum liability allowed under state law.
C. Establish a Committee made up of one representative
from Washington County and one representative from
each member City within the Agency, which will meet
quarterly, or more frequently if needed, to review,
advise, and be heard by the Agency on the standards,
regulations and specifications, work programs, capital
improvement programs, rates and charges, long range
planning, and other matters covered by the Agreements
with the member Cities .
D. At such time as the Agency shall discontinue operation
or use of any facilities on City-owned premises, the
Agency shall remove such equipment, facilities or
fixtures therefrom within a period of six months after
such discontinuance unless otherwise determined by the
parties. The Agency shall demolish or remove
facilities, the sites thereof shall be left free and
clear of all demolition waste and debris. Any
environmental clean-up necessitated by Agency
operation shall be the sole responsibility of Agency.
In the event of cleanup involving acts of third
parties, the cleanup costs therefor shall be subject
to negotiation by the parties.
E. City and Agency shall each be responsible for the
negligent or wrongful acts of its officers, employees,
agents, and volunteers, while performing work related
to this agreement . Each party shall be solely
responsible for defense, costs or payments arising
from legal challenge alleging improper use by that
party of funds derived from this agreement, or
otherwise held by that party. Each party shall be
responsible for any liability arising out of its
ownership of real property and interests therein,
activities governed by an NPDES permit or other air or
water discharge permit issued by competent authority
to that party, and any conduct of that party subject
to direct regulation by state or federal authority.
Page 10 \
F. Nothing in this agreement shall be construed as a
limitation upon or delegation of the statutory and
home rule powers of the City, nor as a delegation or
limitation of the statutory powers of the Agency.
This Agreement shall not limit any right or remedy
available to City or Agency against third parties
arising from illegal acts of such third parties.
G. Where this Agreement calls for review or approval of a
fee or charge, Agency shall perform such review in a
timely manner, shall not unreasonably withhold
approval, and shall provide its decision to the City
in writing. If, within 30 days of written request by
City for approval by Agency, the Agency has failed to
provide a written response, the request shall be
deemed approved.
Section 6 Dispute Resolution; Remedies
A. In the event of a dispute between the parties regarding
their respective rights and obligations pursuant to this
Agreement, the parties shall first attempt to resolve the
dispute by negotiation. If a dispute is not resolved by
negotiation, the exclusive dispute resolution process to
be utilized by the parties shall be as follows :
1. Step 1. Upon failure of those individuals designated
by each party to negotiate on its behalf to reach an
agreement or resolve a dispute, the nature of the
dispute shall be rendered to writing and shall be
presented to the City ' s Chief Executive Officer and
Agency General Manager, who shall meet and attempt to
resolve the issue. If the issue in the dispute is
resolved at this step, there shall be a written
determination of such resolution, signed by the
City's Chief Executive Officer and Agency General
Manager, which determination shall be binding on the
parties. Resolution of an issue at this step requires
concurrence of both parties ' representatives.
2 . Step 2 . In the event a dispute cannot be resolved at
Step 1, the matters remaining in dispute after Step 1
shall be reduced to writing and forwarded to the Mayor
and the Chairman of the Board of Directors . Upon
receipt of the written issue statement, the Mayor and
Chairman shall meet and attempt to resolve the issue.
If the issue is resolved at this step, a written
determination of such resolution shall be signed by
the Mayor and Chairman. Resolution of an issue at
this step requires concurrence of both the Mayor and
the Chairman.
Page 11
3 . Step 3 . In the event a dispute cannot be resolved at
Step 2, the parties shall submit the matter to
mediation. The parties shall attempt to agree on a
mediator. In the event they cannot agree, the parties
shall request a list of five ( 5) mediators from the
American Arbitration Association, or such other entity
or firm providing mediation services to which the
parties may further agree. Unless the parties can
mutually agree to a mediator from the list provided,
each party shall strike a name in turn, until only one
name remains. The order of striking names shall be
determined by lot . Any common costs of mediation
shall be borne equally by the parties, who shall each
bear their own costs and fees therefor . If the issue
is resolved at this step, a written determination of
such resolution shall be signed by both parties .
Resolution of an issue at this step requires
concurrence of by both parties . In the event a
dispute is not resolved by mediation, the aggrieved
party may pursue any remedy available to it under
applicable law.
B. Neither party may bring a legal action against the other
party to interpret or enforce any term of this Agreement
in any court unless the party has first attempted to
resolve the matter by means of the dispute resolution of
subsection A above. This shall not apply to disputes
arising from a cause other than interpretation or
enforcement of this Agreement .
Section 7 Effect of this Agreement
This Agreement shall supersede all prior agreements and amendments
between the parties with respect to sanitary sewerage and service,
storm and surface water management; provided that, except as
expressly modified herein, all rights, liabilities, and obligations
of such prior agreements shall continue. This agreement shall be
effective upon its execution by both parties hereto, and shall
continue in effect for 20 years from and after the date hereof.
This agreement may be modified only by written amendment .
Section 8 Severability
In the event a court of competent jurisdiction shall deem any
portion or part of this Agreement to be unlawful or invalid, only
that portion or part of the Agreement shall be considered
unenforceable. The remainder of this Agreement shall continue to be
valid.
Page 12
IN WITNESS WHEREOF, this instrument has been executed in
duplicate by authority of lawful actions by the City Council and
Agency Board of Directors.
UNIFIED SEWERAGE AGENCY CITY OF , OREGON
OF WASHINGTON COUNTY, OREGON
By By
Chairman, Board of Directors By ayor
Attest :
Approved as to Form: y Recorder
Attorney for Agency i y Attorney
Page 13