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Ordinance 2010-04

AN ORDINANCE APPROVING A CONTRACT WITH THE CITY OF FAYETTEVILLE, ARKANSAS, TO PROVIDE SEWER SERVICE TO CUSTOMERS WITHIN CERTAIN AREAS OF JOHNSON, ARKANSAS, AND GRANTING A FRANCHISE TO THE CITY OF FAYETTEVILLE TO PROVIDE SANITARY SEWER SERVICES WITHIN THE CITY OF JOHNSON AND DECLARING AN EMERGENCY TO EXIST


WHEREAS, there has been a defacto agreement with the City of Fayetteville for the City of Fayetteville to provide sewer sendee to customers in certain areas of the City of Johnson for many years.


BE IT ORDAINED BY THE CITY COUNCIL OF JOHNSON, ARKANSAS, that,


Section 1: That the agreement attached hereto which is titled Contract for Sanitary Sewer Service Between the Cities of Johnson. Arkansas and Fayetteville. Arkansas bearing the date of July , 2010, having been read, studied and-considered by the Johnson City Council should be and hereby is approved and ratified; the Mayor and Recorder-Treasurer are directed and authorized to execute same for and in the name of the City.


Section 2: Pursuant to the attached agreement there is hereby levied fees/rates for water and wastewater impact fees, sanitary sewer sendee, sewer taps and associated services within that portion of Johnson sen'ed by the City of Fayetteville identical to the fees/rates established by the relevant Fayetteville ordinance for users of their sewer system outside of the Fayetteville city limits. However, the gross receipts taxes of the City of Johnson shall apply to all charges for services within the City of Johnson collected by the City of Fayetteville.


Section 3: There is hereby granted to the City of Fayetteville a license to own, operate, maintain, improve, and place existing and new additional sewer facilities on existing and new dedicated street rights-of-way, alleys, utility easements and other public passageways within municipal/Ordinance Approving Contract with Fayetteville 070210 that portion of the City of Johnson sewed by the City of Fayetteville. This license shall enable Fayetteville to lay, relay, install, improve, operate and maintain sanitary sewer lines and appurtenances over, under and across such public rights-of-way, alle}rs and passageways. This license shall be in fall force and effect during the effective period of the agreement attached hereto.


Section 4: A franchise is hereby granted unto the City of Fayetteville, without a franchise fee or franchise tax, to own, improve, maintain, expand and operate a sanitary sewer collection, storage and pumping system within the City of Johnson corporate limits on properties owned or leased by Fayetteville and on public rights-of-way, alleys and passageways as herein provided. Said franchise shall be for the effective dates of the agreement attached hereto.


Section 5: Provision for sanitary sewer service for the residents of the City of Johnson helps secure the public peace, health and safety. Therefore, an emergency is hereby declared to exist. This ordinance shall be immediately effective upon its passage and approval.


PASSED AND APPROVED this 13th day of July, 2010.

 

APPROVED:
Lonnie Barron. Mayor

ATTEST:

JENNIFER ALLEN, Recorder-Treasurer

 

CONTRACT FOR SANITARY SEWER SERVICE
BETWEEN THE CITIES OF


JOHNSON, ARKANSAS AND FAYETTEVILLE, ARKANSAS


THIS CONTRACT is made and entered into this day of July, 2010,'by and between the City of Fayetteville, Arkansas, a municipal corporation, hereinafter referred to as "Fayetteville", and the City of Johnson, Arkansas, a municipal corporation, hereinafter referred to as "Johnson".


WHEREAS, Fayetteville owns and operates a public sewerage system consisting of gravity mains, sewage lift stations and force mains, some of which are located within the corporate limits of the City of Johnson, Arkansas, and wastewater treatment facilities with sufficient capacity to treat current and foreseeable sewage flows generated in its corporate city limits as well as future sewage flows from Johnson, and other out-of-town customers; and


WHEREAS, Fayetteville has provided sewer service to customers in Johnson for many years, but had to refrain from providing service to new customers in Johnson until its new Westside Wastewater Facility could be completed; and


WHEREAS, Johnson and Fayetteville desire to enter into an agreement whereby Fayetteville will provide access on an individual basis to its sewer mains for customers in the City of Johnson who are within Fayetteville's water service area; and,


WHEREAS, all new customers of the Fayetteville public sewage and treatment system are responsible to pay the system wide sewer impact fee to ensure new development that increases demand upon the wastewater system will bear its proportionate share of necessary improvements caused by increasing demand; and


WHEREAS, it is to the mutual advantage of Johnson and Fayetteville and their citizens to enter into an agreement for Fayetteville to own, operate and maintain a public sewerage system within Fayetteville's water sendee areas of the City of Johnson freely utilizing street and alley rights of way and easements to provide sewer sendee to Johnson citizens and thereby protecting the public health and maintaining the quality of life desired by citizens of Johnson; and


WHEREAS, the cities and their citizens will be benefitted by establishing a procedure and framework for future expansion and improvements to Fayetteville's sanitary sewer system in the City of Johnson.

 

NOW, THEREFORE, THE CITY OF JOHNSON AND THE CITY OF FAYETTEVILLE AGREE AS FOLLOWS.


(1) SEWER SERVICE PROVIDED TO JOHNSON CITIZENS AND BUSINESSES:


(A) Sewer service area.


The City of Fayetteville agrees to provide access to its sewerage facilities to individual customers in Johnson who are located within Fayetteville's water service boundary area (shown on the attached map) as agreed by the Beaver Water District and the Cities of Fayetteville and Springdale. (This shall be referred to as the "sewer sendee area" hereinafter.) If this water sendee boundary area is modified by future mutual agreement of Fayetteville and Springdale, the sewer service area may be modified by the consent of Johnson and Fayetteville to match the modified water sendee area.


(B) Sewer services.


The City of Fayetteville agrees that it will maintain and service all sewer facilities within its sewer sendee area within Johnson in a reasonable manner with the aim of providing reasonably consistent sewer sendee similar to the sewer service enjoyed by all of Fayetteville's in-town and out-of-town customers. Fayetteville shall not be responsible nor liable for an}' damages or claims resulting from the interruption, discharge or failure of any part of the Fayetteville Wastewater Treatment (Sewerage) System. If scheduled interruptions to sewer sendee in Johnson are necessary for system repair, maintenance, extension or rehabilitation, Fayetteville will attempt to notify the City of Johnson of such interruption prior to the commencement of the work. Fayetteville shall also attempt to notify affected Johnson customers similarly to how itattempts to notify its own citizens and other customers.

 


(C) Effective date of this contract.


Fayetteville and Johnson agree that this contract shall be effective on the date that both city councils have approved this contract and both mayors have signed this contract.


(D) Term of the- contract.


Fayetteville and Johnson agree that the term of this contract shall be fifteen (15) years. This contract may be renewed for another term of fifteen (15) years under the same terms and conditions upon the approval of both cities through city council resolutions.


(E) Cooperation of the cities.


Fayetteville and Johnson pledge to cooperate and work together to effectuate the goals and purposes of this contract for the benefit of their citizens.


(F) Ownership of sewer mains and facilities; franchise and right to use rights-ofway and easements for sewer mains and facilities.

 

Fayetteville shall continue to own and operate all sewer mains and facilities located within or serving the Johnson sewer sendee area. Johnson shall by ordinance grant Fayetteville a permanent franchise, free of charge but contingent upon Fayetteville providing sewer service to the Johnson sewer service area, so that Fayetteville has access to all street and alley rights-of-way, public easements, etc. for the use, maintenance, repair, replacement, and installation of sewer mains and sewage facilities necessary to properly serve the Johnson sewer sendee area and the Fayetteville Wastewater System.


(G) Sewer rates.


Fayetteville shall supply sanitary sewer service through its collection system and shall charge sewer customers located within Johnson's city limits according to the schedule of rates for customers located outside the corporate city limits of Fayetteville? Arkansas as established in the latest Fayetteville Ordinance prescribing sewer rates. Sewer rates may change periodically for both Fayetteville and out-of-town customers based upon a rate study and in accordance with state law. Fayetteville will notify Johnson of any public hearing for a sewer rate change before the Fayetteville City Council meeting in which a sewer rate increase is being proposed.


(H) Water and Wastewater Impact Fees.


Johnson agrees that the City of Fayetteville is empowered to charge its Water and Wastewater Impact Fees to new development customers in the Johnson sewer sendee area as Fayetteville does for new development in "all of the territory within the City's water and wastewater sendee areas ...." Unified Development Code of Fayetteville §159.02(A). Johnson agrees these impact fees may be changed by Fayetteville after following the procedures mandated by A.C.A. §14-56-103.


(I) Billing and collection powers.


Johnson agrees that Fayetteville may continue its meter reading, billing and collection procedures and operations, including discontinuing service to customers who fail to pay their bills, throughout all of its sewer service area within Johnson just as Fayetteville does throughout its entire water and wastewater service area.


(J) Sewer service connections.


All water customers of Fayetteville located within Johnson's sewer service area shall be required by Johnson to connect to the sewer system in accordance with the rules and regulations as set out by the City of Fayetteville, the City of Johnson, the Arkansas Department of Health, the Arkansas Department of Environmental Quality, and the U. S. Environmental Protection Agency. The charges and requirements for sewer service connections shall be the same as for like service in the City of Fayetteville at the time the sewer service connections are made. Taps or connections to any and all sewer lines shall be made only by the Fayetteville Water and Sewer Department after Fayetteville has approved such taps. Johnson authorizes Fayetteville to make street cuts and openings where necessary to make new taps or connections. Fayetteville agrees to repair street cuts required in street crossings, street taps and/or repairs with materials equal to or better than the material and street condition prior to such street cut.


(K) Plumbing.


Johnson shall require each customer within the Johnson sewer service area to pay Fayetteville's current plumbing inspection fee and to install all plumbing in accordance with the then current ordinances, rules and regulations of the City of Fayetteville. All plumbing shall be inspected by inspectors of the Fayetteville Building Safety Division. Water service shall not be provided if the plumbing fails to meet the requirements of the applicable Fayetteville Code.


(L) Ensuring viability of manholes.


Johnson agrees to ensure that manholes are re-established to the proper elevation after all street widening, reconstruction or overlay projects permitted or constructed by the City of Johnson have been completed. Any manhole repair or reconstruction must meet the City of Fayetteville's specifications and pass inspection by Fayetteville. Manholes must be raised or lowered to grade within thirty (30) days of being covered. Johnson agrees to hold Fayetteville harmless from any claims or cost incurred that are worsened by manholes being covered by a City of Johnson street project. Any manholes or any other sewer system components that have to be raised, moved, or otherwise changed as a result of work performed in any way by Johnson shall be at Johnson's expense.


(M) Johnson to allow construction and operation of sewer system by Fayetteville.


Johnson agrees to adopt such ordinances, rules and regulations as will allow Fayetteville to construct, maintain and operate the sewage system in accordance with the rules, regulations, or specifications of the Arkansas Department of Health, the Arkansas Department of Environmental Quality, the U.S. Environmental Protection Agency, and Fayetteville. Noncompliance with said rules, regulations or specifications by any customer may result in discontinuance of sendee to that customer. Fayetteville shall determine if such noncompliance has occurred. Johnson also agrees to adopt the necessary ordinances to provide Fayetteville with the necessary authority to implement any enforcement action of local, state and federal law or regulation.


(N) Public health regulation compliance.


Johnson agrees to ensure and require that all of its sewer customers within the sewer sendee area shall constantly comply with the ordinances, rules and regulations of Fayetteville, the U.S. Environmental Protection Agency, the Arkansas Department of Health, and the Arkansas Department of Environmental Quality governing public health and sewer operations and usage which may now exist or may hereinafter be promulgated. Failure or refusal of an}' customer to comply with such ordinances, rules or regulations will subject the customer to immediate discontinuance of water and sewer service and Fayetteville shall not be liable for any damages or expenses which might result from any discontinuance.


(O) Discontinuance of sewer service.


Discontinuance of sewer sendee is most commonly executed by a discontinuance of water sendee. Fayetteville resen'es the right to discontinue sewer sendee to individual customers without notice for any of the following reasons:


1. For fraudulent representation as to the condition of plumbing system as it relates to the protection and safety of Fayetteville's
sewer system;


2. For improperly connected appliances and fixtures resulting in hazardous, potentially hazardous, or defective conditions;


3. For emergencies where damage to property, equipment or health may occur;


4. By order or request of the Arkansas Department of Health;


5. By order or request of the Arkansas Department of Environmental Quality;


6. If rules and regulations of the Arkansas Department of Health, or the U.S. Environmental Protection Agency relating to the safety and of the public sewer collection or treatment system are being neglected or violated;


7. If Ordinances of the City of Johnson or City of Fayetteville relating to the safety and protection of public sewer system are being neglected or violated; and


8. For failure to fully and timely pay water and sewer bills.


(P) Taxes and fees prohibited.


Johnson will not during the period of this contract or any renewal thereof, levy any franchise tax, occupation tax or any other tax of any form whatsoever nor assess any fee upon Fayetteville, the sewer system or the operations called for by this contract. Nothing contained herein shall preclude the collection of any gross receipts tax (i.e. state, county or local sales tax) enacted in accordance with state law and not otherwise made exempt by state law.


(Q) Developers extending sewer mains.


Sewer mains to meet the needs of new development are primarily the responsibility of the developer and not the City of Fayetteville. Engineering, placement, size and construction of new sewer mains by a developer within the Johnson sewer service area must be inspected and approved by Fayetteville. The developer shall pay to Fayetteville. the normal system wide inspection and permit fee rate for these services by Fayetteville.


(R) Obtaining necessary new public water/sewer easements.


Johnson hereby grants to Fayetteville the right to construct, operate and own additional sewer facilities on or within the rights-of-way of dedicated public streets and alleys or within utility easements and other passageways. Fayetteville shall not construct or lay a sewer main across private property unless Johnson and/or the owners of such private property shall furnish to Fayetteville an executed easement by the owners of such property giving and granting to Fayetteville the right to construct, lay and maintain such sewer main across the private property. These easements shall be on forms as prescribed by Fayetteville. The fonn of such easements and their provisions or deeds shall show Fayetteville as the Grantee. In order to facilitate required improvements, Johnson agrees to cooperate with Fayetteville and assist in obtaining authority to cross private property with sewer mains. Johnson agrees to participate in any necessary eminent domain actions regarding property within the corporate limits of Johnson if Fayetteville so requests. Johnson further agrees it will not unreasonably impair, hinder or delay the obtaining of such easements or the construction of such required improvements. Johnson agrees that it will offer its full support to accomplish such improvements and obtain necessary easements.


(2) NOTICES:


Any written notices provided for herein shall be sufficient if hand-delivered or sent by certified mail, return receipt requested, postage prepaid, to the respective Mayor of the City.


(3) COMPLETE AGREEMENT:


It is agreed that neither city hereto is relying upon any oral or written information made by the other prior to the signing of this contract unless expressly provided herein, and that this contract constitutes the entire agreement between the City of Johnson and the City of Fayetteville and the contract shall not be hereafter amended or modified unless reduced to Avriting, approved by both City Councils and signed by the Mayors.


(4) SEVERABILITY:


If any phrase, clause, sentence or paragraph of this contract shall be declared invalid by the Judgment or decree of a court of competent jurisdiction, such invalidity shall not affect any of the remaining sentences or paragraphs of this contract and this contract shall remain in effect.


(5) SOVEREIGN IMMUNITY:


Nothing in this contract shall be construed to waive or limit the sovereign immunity enjoyed by both cities. Any provision that could be interpreted as a waiver or limitation of either city's sovereign immunity is expressly rejected and invalidated to the extent of such waiver or limitation. Nothing in this contract shall be construed as creating a partnership or joint venture between the City of Johnson and the City of Fayetteville for the provision of sewer services.


IN WITNESS WHEREOF, the Mayor and City Recorder/Treasurer of the City of Johnson, Arkansas, by authority of a resolution adopted by the City Council of the City of Johnson, Arkansas and the Mayor and City Clerk/Treasurer of the City of Fayetteville, Arkansas, by authority of a resolution adopted by the City Council of the City' of Fayetteville, Arkansas, have hereunto set their hand and caused the corporation seal to be affixed and dated this the day of July, 2010.


CITY OF JOHNSON, ARKANSAS                          CITY OF FAYETTEVILLE, ARKANSAS
MAYOR LONNIE BARRON                                   MAYOR LIONELD JORDAN


ATTEST:                                                           ATTEST:
JENNIFER ALLEN                                              SONDRAE. SMITH
City Recorder/Treasurer                                  City Clerk/Treasurer