ITEM 4. 7
CITY MANAGER' S REPORT
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
ITEM: APPROVE AMENDED AND RESTATED AGREEMENT
WITH VEOLIA WATER WEST OPERATING SERVICES,
INC., FOR THE OPERATION AND MAINTENANCE OF
THE LATHROP CONSOLIDATED TREATMENT
FACILITY AND APPROVE BUDGET AMENDMENT
RECOMMENDATION: Adopt Resolution Approving the Amended and Restated Agreement with Veolia Water West
Operating Services, Inc., for Wastewater Plant
Operation and Maintenance of the Lathrop
Consolidated Treatment Facility and Approve Budget
Amendment
SUMMARY:
The Lathrop Consolidated Treatment Facility ( LCTF) provides sewer treatment capacity for the Crossroads, Mossdale, River Islands, South Lathrop Specific Plan, Gateway Specific Plan and Central Lathrop Specific Plan development areas. Veolia Water West Operating Services, Inc., ( Veolia) provides Operations and Maintenance O& M) services based on a 2003 O& M Agreement and subsequent amendments. An update to this agreement is needed primarily due to changes in operation and maintenance requirements related to the Surface Water Discharge Project, CIP WW 20- 17.
Staff requests Council approve the Amended and Restated agreement with Veolia for the LCTF O& M services for a cost of $ 138, 762 per month. Sufficient funds were not included in the adopted Fiscal Year 2022/ 23 Budget to cover the increase in cost, and therefore a budget amendment in the amount of $ 200, 000 is requested for the remainder of this fiscal year. Future cost increases beyond July 2023 will be included in budgets presented to Council.
BACKG ROU N D:
The LCTF provides sewer treatment capacity for the Crossroads, Mossdale, River Islands, South Lathrop Specific Plan, Gateway Specific Plan and Central Lathrop Specific Plan development areas. Veolia provides operation and maintenance services for the LCTF under the O& M Agreement that was originally between the City and US Filter Operating Services in 2003. An update to this agreement is needed primarily due to changes in operation and maintenance requirements created by the Surface Water Discharge Project, CIP WW 20- 17. This agreement has been amended numerous times over the years and this new agreement will update, consolidate and replace the original 2003 agreement and all previous contract amendments.
CITY MANAGER' S REPORT PAGE 2
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
APPROVE PSA WITH VEOLIA FOR THE OPERATION AND MAINTENANCE OF
THE LCTF AND APPROVE BUDGET AMENDMENT
REASON FOR RECOMMENDATION:
Staff requests City Council approve a Professional Services Agreement with Veolia for Operations and Maintenance of the LCTF. An update to this agreement is needed primarily due to changes in operation and maintenance requirements due to the Surface Water Discharge Project, CIP WW 20- 17.
FISCAL IMPACT:
The current fees for the Veolia O& M contract are $ 130, 151 per month. The negotiated fee adjustment under the new agreement is $ 138, 762 per month Sufficient funds were not included in Fund 6080 ( WW Recycling Plant-# 1 MBR) to cover this increase in cost, and a budget amendment in the amount of $ 200, 000 is therefore requested as follows:
Increase Appropriation
6080- 5034- 420- 01- 00 200, 000
The annual service fee due thereafter will be appropriated accordingly in each Fiscal Year.
CITY MANAGER' S REPORT PAGE 3
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
APPROVE AMENDED AND RESTATED AGREEMENT WITH VEOLIA WATER WEST OPERATING SERVICES, INC., FOR THE OPERATION AND
MAINTENANCE OF THE LCTF AND APPROVE BUDGET AMENDMENT
ATTACH M ENTS:
A. Adopt Resolution Approving the Amended and Restated Agreement with Veolia Water West Operating Services, Inc., for Wastewater Plant Operation and Maintenance of the Lathrop Consolidated Treatment Facility and Approve Budget Amendment
B. Amended and Restated Agreement with Veolia Water West Operating Services, Inc for Wastewater Plant Operation and Maintenance of the Lathrop Consolidated Treatment Facility
CITY MANAGER' S REPORT PAGE 4
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
APPROVE PSA WITH VEOLIA FOR THE OPERATION AND MAINTENANCE OF
THE LCTF AND APPROVE BUDGET AMENDMENT
APPROVALS:
3' 7 7.02"
Brad ylor Date
City Engineer
Cari James Da e
Finance Dire t r
3 • co • zo z3
Michael King Date
Assistant City Manager
7 , z L
Salvador Navarrete Date
City Attorney
3•• Z3
Step en J. Salvatore Date
City Manager
RESOLUTION NO. 23 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP
APPROVING THE AMENDED AND RESTATED AGREEMENT WITH VEOLIA WATER WEST OPERATING SERVICES, INC., FOR WASTEWATER PLANT
OPERATION AND MAINTENANCE OF THE LATHROP CONSOLIDATED
TREATMENT FACILITY AND APPROVE BUDGET AMENDMENT
WHEREAS, the Lathrop Consolidated Treatment Facility ( LCTF) provides sewer treatment capacity for the Crossroads, Mossdale, River Islands, South Lathrop Specific Plan, Gateway Specific Plan and Central Lathrop Specific Plan development areas; and
WHEREAS, Veolia Water West Operating Services, Inc., ( Veolia) provides Operations and Maintenance ( O& M) services based on a 2003 O& M Agreement and subsequent amendments; and
WHEREAS, an update to this agreement is needed primarily due to changes in operation and maintenance requirements due to the Surface Water Discharge Project, CIP WW 20- 17; and
WHEREAS, the 2003 O& M agreement with Veolia has been amended numerous times over the years and this new agreement will update, consolidate and replace the original 2003 agreement and all previous contract amendments; and WHEREAS, the current fees for the Veolia O& M contract are $ 130, 151 per month, and the negotiated fee adjustment under the new agreement is $ 138, 762 per month; and
WHEREAS, sufficient funds were not included in Fund 6080 ( WW Recycling Plant-# 1 MBR) to cover this increase in cost, and a budget amendment in the amount of $ 200, 000 is therefore requested; and
WHEREAS, the annual service fee due thereafter will be appropriated accordingly in each Fiscal Year.
NOW THEREFORE, BE IT RESOLVED, that the City Council of the City of Lathrop does hereby approves the Amended and Restated agreement with Veolia Water West Operating Services, Inc., for a total cost of $ 138, 762 per month to be paid from Fund 6080 ( WW Recycling Plant-# 1 MBR); and
NOW THEREFORE, BE IT FURTHER RESOLVED, that the City Council of the City of Lathrop does hereby approve a budget in the amount of $ 200, 000 as follows:
Increase Appropriation
6080- 5034- 420- 01- 00 200, 000
The foregoing resolution was passed and adopted this 13th day of March 2023, by the following vote of the City Council, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney
ATTACHMENT
a
DRAFT
AMENDED AND RESTATED
WASTEWATER PLANT OPERATION AND MAINTENANCE
AGREEMENT
between
VEOLIA WATER WEST OPERATING SERVICES, INC.
and
CITY OF LATHROP, CALIFORNIA
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
TABLE OF CONTENTS
Article 1. DEFINITIONS AND INTERPRETATION ....................................................................................... 6 Section1. 1 Definitions.......................................................................................................................... 6 Section1. 2 Interpretation. .................................................................................................................... 6 Section1. 3 Headings ........................................................................................................................... 6 Section1. 4 Payment Dates.................................................................................................................. 7 Article2. TERM OF AGREEMENT............................................................................................................... 7 Section 2. 1 Term of Agreement ........................................................................................................... 7 Section2. 2 Renewal............................................................................................................................. 7 Article 3. CONDITIONS PRECEDENT ......................................................................................................... 7 Section 3. 1 Conditions to Signing Agreement...................................................................................... 7 Article 4. OPERATION OF FACILITY........................................................................................................... 7 Section 4. 1 Commencement of Operations ......................................................................................... 7 Section 4. 2 Standard of Services and Performance Guarantee.......................................................... 8 Section 4. 3 Limitations on Performance Guarantee ............................................................................ 8 Section 4. 4 Monitoring and Measuring................................................................................................. 9 Section4. 5 Staffing of Facility............................................................................................................ 10 Section 4. 6 Computerized Maintenance Management System......................................................... 10 Section 4. 7 Maintenance and Repairs ............................................................................................... 10 Section 4. 8 Replacement; Replacement Cap .................................................................................... 11 Section 4. 9 Capital Improvement Program Recommendations......................................................... 12 Section 4. 10 Biosolids Services........................................................................................................... 12 Section 4. 11 Solid and Other Wastes .................................................................................................. 13 Section 4. 12 Response to Problems and Emergencies....................................................................... 13 Section 4. 13 Emergency Preparedness Plan....................................................................................... 13 Section 4. 14 Hazardous Materials Business Plan ............................................................................... 13 Section 4. 15 OSHA Compliance Program ........................................................................................... 14 Section4. 16 Odor Control.................................................................................................................... 14 Section4. 17 Supplies........................................................................................................................... 14 Section 4. 18 Preparation of Reports.................................................................................................... 14 Section 4. 19 Operation and Maintenance Manuals............................................................................. 15 Section 4. 20 Standard Operating Procedures...................................................................................... 15 Section 4. 21 Preparation of Records ................................................................................................... 15 Section 4. 22 Cooperation Regarding Warranties................................................................................. 16 Section4. 23 Security............................................................................................................................ 16 Section4. 24 Meetings.......................................................................................................................... 16 Section4. 25 No Title............................................................................................................................ 16 Section 4. 26 City Operational Responsibilities..................................................................................... 16
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section4. 27 Capital Projects ............................................................................................................... 17 Section4. 28 City Responsibilities ........................................................................................................ 18 Section 4. 29 Disclaimer of Implied Warranties..................................................................................... 19 Section 4. 30 Expansion of Facility or Construction of New Wastewater Treatment............................ 19 Section 4. 31 Americans With Disabilities Act....................................................................................... 19 Section 4. 32 Non- Approval of Repair or Replacement........................................................................ 20 Section 4. 33 Resellers Permit.............................................................................................................. 20 Article 5. OWNERSHIP OF FACILITY; LICENSES; ACCESS; NATURE OF AGREEMENT .................... 20 Section 5. 1 Ownership of Facility....................................................................................................... 20 Section5. 2 License............................................................................................................................ 20 Section5. 3 City Access...................................................................................................................... 21 Section 5. 4 City Use of Equipment..................................................................................................... 21 Section 5. 5 Relationship of Parties .................................................................................................... 21 Article 6. VWWOS SCOPE OF SERVICES AND CITY RESPONSIBILITIES............................................ 22 Section6. 1 User Fees........................................................................................................................ 22 Section6. 2 Use of Facility.................................................................................................................. 22 Section 6. 3 Utility Services................................................................................................................. 23 Article7. COMPENSATION........................................................................................................................ 23 Section7. 1 Service Fee ..................................................................................................................... 23 Section7. 2 Payments......................................................................................................................... 23 Section 7. 3 Adjustment to Service Fee for Certain Items .................................................................. 24 Section7. 4 Applicable Law................................................................................................................ 24 Section 7. 5 Change of Scope; Change in Law; Uncontrollable Circumstances ................................ 24 Section 7. 6 Non- Specification Influent ............................................................................................... 24 Section 7. 7 Corrective Maintenance and Repair; Repair and Replacement Adjustments................. 24 Section 7. 8 Pass- Through Expenses................................................................................................. 24 Article 8. RETURN OF WASTEWATER SYSTEM TO CITY...................................................................... 25 Section 8. 1 Return of Facility Upon Expiration................................................................................... 25 Section 8. 2 Pre- Exit Evaluation.......................................................................................................... 25 Article 9. CONFIDENTIAL INFORMATION................................................................................................. 26 Section 9. 1 Confidential and Proprietary Information......................................................................... 26 Section 9. 2 Identification of Confidential Information......................................................................... 26 Section 9. 3 Disclosure of Confidential Information ............................................................................ 26 Section 9. 4 Permitted Disclosure....................................................................................................... 26 Section9. 5 Legal Demands............................................................................................................... 27 Section9. 6 Limitation on Use............................................................................................................. 27 Section9. 7 Survival............................................................................................................................ 27 Article 10. REPRESENTATIONS AND WARRANTIES.............................................................................. 27 Section 10. 1 VWWOS Representations............................................................................................... 27
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 10. 2 VWWOS Duty to Request Information and Disclose ...................................................... 28 Section 10. 3 City Representations....................................................................................................... 28 Article11. INSURANCE.............................................................................................................................. 30 Section 11. 1 Required Insurance......................................................................................................... 30 Section 11. 2 Additional Insurance Requirements................................................................................ 31 Section 11. 3 Certificates of Insurance.................................................................................................. 31 Section 11. 4 O& M Performance and Payment Bond........................................................................... 31 Section 11. 5 Unavailable Insurance..................................................................................................... 32 Section11. 6 City Insurance.................................................................................................................. 32 Article 12. LIABILITY AND INDEMNITY..................................................................................................... 32 Section12. 1 VWWOS Indemnity ......................................................................................................... 32 Section 12. 2 Duties to Insure and Indemnify Independent.................................................................. 33 Section12. 3 City Indemnity.................................................................................................................. 33 Section 12. 4 Environmental Indemnity................................................................................................. 33 Section 12. 5 Procedures for Notice and Defense................................................................................ 33 Section12. 6 Survival............................................................................................................................ 33 Article 13. UNCONTROLLABLE CIRCUMSTANCES................................................................................. 34 Section 13. 1 Uncontrollable Circumstance .......................................................................................... 34 Section 13. 2 Obligations In Event of Uncontrollable Circumstance..................................................... 34 Section 13. 3 Amendment of Agreement for Uncontrollable Circumstance.......................................... 34 Article 14. DEFAULT AND REMEDIES ...................................................................................................... 34 Section 14. 1 City Events of Default...................................................................................................... 34 Section 14. 2 VWWOS Remedies for City Events of Default................................................................ 35 Section 14. 3 VWWOS Events of Default.............................................................................................. 35 Section 14. 4 City Remedies for VWWOS Event of Default.................................................................. 36 Section 14. 5 Effect of Termination ....................................................................................................... 37 Section 14. 6 Remedies Cumulative..................................................................................................... 37 Section 14. 7 Remedy for Breach of Performance Guarantee.............................................................. 37 Article 15. DISPUTE RESOLUTION........................................................................................................... 38 Section 15. 1 Dispute Resolution Process............................................................................................ 38 Section15. 2 Invocation........................................................................................................................ 38 Section 15. 3 Technical Representatives.............................................................................................. 38 Section 15. 4 Reference to Management Representatives................................................................... 38 Section 15. 5 Binding Arbitration........................................................................................................... 38 Section 15. 6 Arbitration Notice............................................................................................................. 38 Section 15. 7 Appointment of Arbitrators............................................................................................... 38 Section15. 8 Fees................................................................................................................................. 39 Section15. 9 Discovery......................................................................................................................... 39 Section 15. 10 Arbitration Rules.............................................................................................................. 39
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section15. 11 Independence.................................................................................................................. 39 Article 16. ASSIGNMENT AND DELEGATION........................................................................................... 39 Section 16. 1 City Assignment............................................................................................................... 39 Section 16. 2 VWWOS Assignment...................................................................................................... 39 Section16. 3 Notice of Assignment ...................................................................................................... 40 Article 17. ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS..................................................... 40 Section17. 1 Notices............................................................................................................................. 40 Section 17. 2 Compliance with Laws and Regulations ......................................................................... 41 Section 17. 3 Non- Discrimination in Employment................................................................................. 41 Section 17. 4 Further Assurances......................................................................................................... 41 Section17. 5 Governing Law................................................................................................................ 41 Section 17. 6 Partial Invalidity; Severability........................................................................................... 41 Section17. 7 Waiver............................................................................................................................. 41 Section17. 8 Entire Agreement ............................................................................................................ 41 Section 17. 9 Modification and Amendment.......................................................................................... 42 Section 17. 10 Successors and Assigns................................................................................................. 42 Section 17. 11 Execution in Counterparts............................................................................................... 42 Section17. 12 Joint Drafting ................................................................................................................... 42 Section 17. 13 No Third- Party Beneficiaries ........................................................................................... 42 Section 17. 14 Assistance of Counsel..................................................................................................... 42
EXHIBITS
Exhibit A: Definitions
Exhibit B: Influent Specifications
Exhibit C: Effluent Specifications
Exhibit D: Monitoring Requirements
Exhibit E: Monitoring Equipment
Exhibit F: Standards for Quality Assurance and Quality Control Program Exhibit G: Computerized Maintenance Management System
Exhibit H: Corrective Maintenance and Repair Monthly Report Exhibit I: Facility Process Flow Diagram
Exhibit J: Facility and Site Security Requirements
Exhibit K: Service Fee
Exhibit L: Points of Influent and Effluent Delivery
Exhibit M: Acceptance Testing Plan
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
This AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT ( this " AgreemenY') is made as of this day of 2023 ( the" Effective Date") by and between Veolia Water West Operating Services, Inc., a Delaware corporation ("VWWOS") and the City of Lathrop, California, a municipal corporation (" City") and, together with VWWOS, each a" Party" and, together, the" Parties").
RECITALS
1. WHEREAS, on April 29, 2003, City and US Filter Operating Services, Inc. entered into an agreement for the operations and maintenance of the City' s then existing wastewater treatment facilities ( as amended, the" Original Agreement"); and
2. WHEREAS, on February 2, 2004, USFOS officially became known as Veolia Water North America Operating Services, Inc., a Delaware corporation; and
3. WHEREAS, on July 6, 2004, Veolia Water North America Operating Services, Inc. converted from a corporation to a limited liability company and became Veolia Water North America Operating Services, LLC, a Delaware limited liability company; and
4. WHEREAS, on October 18, 2007, Veolia Water North America Operating Services, LLC assigned its right, title and interest in and to the Original Agreement to VWWOS; and
5. WHEREAS, the Parties desire to replace the Original Agreement with this Agreement.
6. WHEREAS, Pursuant to the terms, conditions and restrictions of this Agreement, and by due action of its City Council, the City hereby retains VWWOS to operate and maintain the Facility( as defined in Exhibit A).
7. WHEREAS, VWWOS is willing to operate and maintain the Facility, subject to the terms, conditions and restrictions of this Agreement and has properly authorized its representatives to execute this Agreement on its behalf.
NOW, THEREFORE, in exchange of the mutual promises contained herein and for other good and valuable consideration and intending to be legally bound, the Parties agree to amend and restate the Original Agreement as follows:
Article 1. DEFINITIONS AND INTERPRETATION
Section 1. 1 Definitions.
For purposes of this Agreement the terms and phrases shall have the meaning set forth in Exhibit A unless the circumstances clearly indicate the Parties intended otherwise.
Section 1. 2 Interpretation.
Any terms in the singular shall also be interpreted to include the plural and any terms in the plural shall also include the singular. "Including" or" include," as used in this Agreement or in any Exhibit hereto, shall mean " including" without limitation.
Section 1. 3 Headings
The headings are inserted in this Agreement for convenience and reference and shall not affect the interpretation of this Agreement.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 1. 4 Payment Dates
If the date on which any payment is to be made pursuant to this Agreement is not a Business Day the payment shall be payable on the next succeeding Business Day.
Article 2. TERM OF AGREEMENT
Section 2. 1 Term of Agreement
The term of this Agreement shall be from the Effective Date until December 31, 2034 unless sooner terminated as provided hereunder or renewed pursuant to Section 2. 2 of this Agreement (the Term") but shall in no event exceed thirty- five ( 35) years from the Effective Date.
Section 2. 2 Renewal
If either Party wishes to extend the term of this Agreement, then, at least one year prior to the end of the term set forth in Section 2. 1 of this Agreement, that Party shall send a written notice to the other specifying the proposed terms and conditions of any renewal of this Agreement. The term of this Agreement shall not be extended unless the Parties agree in writing to the terms and conditions of such an extension.
Article 3. CONDITIONS PRECEDENT
Section 3. 1 Conditions to Signing Agreement
a) City Conditions. Prior to City' s execution and delivery of this Agreement to VWWOS, VWWOS shall deliver to City, in reasonable form:
1. certificates of incumbency for the officers of VWWOS executing this Agreement; and
2. such other documentation as reasonably requested by the City, including bonds and insurance documents.
The foregoing conditions shall be deemed satisfied or waived upon the execution and delivery of this Agreement by City.
a) VWWOS Conditions. Prior to VWWOS' s execution and deliver of this Agreement to City, City shall deliver to VWWOS:
1. certified minutes or a certified resolution of the City Council demonstrating that the City Council has approved the execution and delivery of this Agreement;
2. any other documents as reasonably requested by VWWOS.
The foregoing conditions shall be deemed satisfied or waived upon the execution and delivery of this Agreement by VWWOS.
Article 4. OPERATION OF FACILITY
Section 4. 1 Commencement of Operations
VWWOS operations and maintenance of the Facility will be governed by this Agreement as of the Effective Date.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 4. 2 Standard of Services and Performance Guarantee On and after the Effective Date, and except as excused by an Uncontrollable Circumstance or as otherwise set forth in this Agreement:
a) Practices. VWWOS shall perform the Services using suitable materials and in accordance with Prudent Industry Practices.
b) Performance Guarantee. VWWOS shall ( i) operate the Facility such that it has the capacity to treat Influent meeting the Influent Specifications to produce Effluent meeting the Effluent Specifications and ( ii) provide continuous operation of the Facility to treat Influent ( collectively, the Performance Guarantee").
c) Change of Law. Upon a Change of Law including a Change of Law affecting the performance, operation, maintenance or repair of the Facility or standards and conditions governing Effluent discharge from the Facility, VWWOS shall use reasonable efforts to comply with such Change of Law, but such Change of Law shall not modify or expand the Performance Guarantee. In the event of a Change of Law, and upon written notice from VWWOS of the need to do so, the Parties will negotiate in good faith to reach agreement upon the necessary modifications to the Facility and equitable adjustments to the Compensation in order to comply with such Change of Law. If the City and VWWOS are unable to reach agreement on such modifications and adjustments, such dispute shall be resolved in accordance with the procedures set forth in Article 15.
Section 4. 3 Limitations on Performance Guarantee
a) City Compliance. VWWOS' s obligations under the Performance Guarantees shall be conditioned upon the City providing Influent that does not exceed the Influent Specifications set forth in Exhibit B.
b) Non- Specification Influent. In the event that Influent reaches the Facility in volumes or concentrations that exceed the Influent Specifications or that contains Abnormal Substances (" NonSpecification Influent"):
1. VWWOS shall use its reasonable efforts consistently with the Emergency Preparedness Plan to the extent such plan applies to treat such Influent to meet the applicable Effluent Specifications to comply with Applicable Law and to protect the environment, but VWWOS shall have no responsibility to City in the event that VWWOS does not meet the Performance Guarantee despite such reasonable efforts; and
2. City shall continue to make all required payments, and City shall pay VWWOS those reasonable amounts requested by VWWOS to make such reasonable efforts to treat such Non- Specification Influent, which amounts shall be in addition to the Compensation otherwise payable under this Agreement.
c) Process Control Management Plan. Within one hundred eighty( 180) days of the Effective Date, VWWOS shall provide City a draft Process Control Management Plan ( PCMP) for the portion of the Facility upon which Services shall commence. The PCMP shall include provisions for addressing Non-Specification Influent to the Facility that shall be implemented by VWWOS as necessary during the Term. City shall review and approve, or state the basis for its disapproval of, the draft PCMP within thirty( 30) days of its receipt. VWWOS shall provide an amended PCMP within fifteen ( 15) days of receipt of any disapproval.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
d) Discharges. The City will be responsible for any Losses ( including fines or penalties imposed by a regulatory or enforcement agency for violations) associated with Effluent discharge to any water of the United States and any Losses associated with the NPDES Permit generally, and the City will indemnify VWWOS in accordance with Article 12 for any Losses suffered by VWWOS in connection with any such discharge or the NPDES Permit generally, except to the extent such Losses are a result of the gross negligence or willful misconduct of VWWOS. Except as set forth in Exhibits C- iand C- 2, VWWOS shall have no responsibility to ensure that Effluent meets the requirements of the NPDES Permit during surface water discharge or the requirements of the WDRs during land discharge.
Section 4. 4 Monitoring and Measuring
a) VWWOS shall monitor the operation of the Facility and shall measure, sample and analyze the chemical content, physical properties, volume and flow rate of Influent entering the Facility and Effluent discharged from the Facility in accordance with the Monitoring Requirements outlined in Exhibit D, and as outlined below.
1. VWWOS shall monitor the SCADA system such that to maintain compliance with the Agreement, and notify City if changes or upgrades to system are needed no less than thirty( 30) days prior to necessary changes.
2. VWWOS shall obtain, manage and update a Water Information Management System WIMS) forthe Facility.
3. VWWOS sha I record all monitoring data in WIMS and provide City with data in a tabulated, electronically- searchable format ( e. g., Microsoft Excel) needed for City to prepare monitoring reports. Upon termination of Agreement, VWWOS shall assign the WIMS license to City.
4. VWWOS shall conduct reviews of all reports prepared by VWWOS- contract laboratories for accuracy and to ensure data quality controls are met, and provide City with copies of all final analytical laboratory reports in portable document format (" PDF") by the 15th of each month with the preceding month' s analytical results. b) VWWOS shall collect Influent and Effluent samples, at request of City, for analyses under the responsibility of City- contracted laboratories using sampling equipment cleaned and decontaminated, and with chain-of-custody documentation, in accordance with U. S. Environmental Protection Agency- approved methods.
c) VWWOS shall cooperate with testing and investigations undertaken by the City to determine potential causes for the Facility Effluent to not meet the Effluent Specifications, investigations regarding chronic toxicity observed in the Effluent, or other special studies enacted by the City.
d) VWWOS agrees to provide, to the extent the Facility is not already so equipped, the sampling and monitoring equipment (" Monitoring EquipmenY') as set forth in Exhibit E. e) VWWOS shall maintain and operate the sampling and monitoring equipment included with the Facility including but not limited to meters, analyzers, auto- samplers. f) The accuracy of all Monitoring Equipment used to measure flow volumes shall be verified and calibrated at least once each calendar year. All tests of accuracy of such flow Monitoring Equipment shall be conducted in material compliance with the procedures and standards specified by the manufacturer of the flow Monitoring Equipment.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
g) The accuracy of any analytical Monitoring Equipment used to measure the physical or chemical properties of Influent or Effluent shall be verified in accordance with the frequency methods and tests required by the analytical method, equipment manufacturer, and the Laboratory QA/QC Program.
h) In the event that toxicity testing of the Effluent does not meet the specifications of the NPDES Permit, VWWOS shall cooperate with any additional testing and/ or investigations undertaken by the City to determine of the cause or causes of the observed toxicity. Should investigations into the observed toxicity identify that corrective actions at the Facility are needed to mitigate future toxicity, then VWWOS shall cooperate with the City to update operations and maintenance manuals ( refer to Section 4. 19 of this Agreement), or, alternately if appropriate, VWWOS shall develop a Capital Project ( refer to Section 4. 27 of this Agreement). Any changes in the operations and maintenance manuals that causes a substantial change in the costs of operation and maintenance of the Facility shall entitle Veolia to a change in the Service Fee pursuant to Section 7. 5.
Section 4. 5 Staffing of Facility
a) VWWOS shall staff the Facility with personnel with the appropriate State- required operator certifications, as those requirements now exist or may hereafter be amended ( provided that such amendments may be a Change of Law), and with personnel qualified in technical, laboratory, administrative, and management issues to satisfy regulatory requirements and provide operations and maintenance services and all other related and required services under this Agreement. b) Within thirty( 30) days of the Effective Date, VWWOS shall submit a Facility staffing and organizational structure to the City, including identification of the full- time Facility manager, who shall be VWWOS' s primary on- site agent in all matters pertaining to this Agreement. Identification of certified operators assigned to the Facility and documentation that the certified operators comply with State requirements for operation of Facility also shall be provided to City. Operator licenses to operate Facility shall be posted at the Facility. Telephone numbers for the Facility manager and his or her designee( s) shall be provided.
c) VWWOS shall maintain and document compliance with a staff training program to ensure that its staff is capable of operating the Facility consistently with the Agreement, State of California Wastewater Operator Certification Program and Applicable Law. d) VWWOS shall provide the City with the information reasonably necessary, consistent with the requirements described in Section 4. 18 of this Agreement, for the City to prepare an annual operations report of the Facility staffing.
Section 4. 6 Computerized Maintenance Management System VWWOS shall implement a Computerized Maintenance Management System as described in Exhibit G. VWWOS will maintain records of Preventive and Predictive Maintenance as set forth in Exhibit G. City shall have the right to inspect and to copy at City' s cost such records during normal business hours.
Section 4. 7 Maintenance and Repairs
a) In implementing the Computerized Maintenance Management System, VWWOS shall perform Corrective Maintenance and Repairs consistently with Prudent Industry Practice through regular, preventive, predictive, and corrective maintenance and repairs. Except as otherwise expressly provided to the contrary in this Agreement, City shall be responsible for all costs of Corrective Maintenance and Repair above the Replacement Cap and shall pay such additional amounts to VWWOS as part of the monthly invoice for the month in which such activities take place.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
VWWOS shall submit reports of such Corrective Maintenance and Repairs to City as provided in Exhibit H.
b) To ensure that the Facility is properly maintained, VWWOS shall perform an evaluation of the Facility not later than six ( 6) months after Effective Date and on June 30 of every year thereafter, and provide written evidence to City that the maintenance and repairs required by this Agreement have been performed consistently with Prudent Industry Practice and with this Agreement, accounting for the Replacement Cap and other provisions regarding the funding of Corrective Maintenance and Repairs.
Section 4. 8 Replacement; Replacement Cap
a) As required during the Term, VWWOS shall at VWWOS' s expense replace in kind or with reasonably comparable equipment any Facility equipment that wears out or becomes no longer practicable to repair up to an aggregate limit of Ten Thousand Dollars ($ 10, 000) per year( the Replacement Cap") with expenses as reflected on the Computer Maintenance Management System. b) ( 1) City shall maintain a funded repair, maintenance, and replacement budget of at least 300, 000 per fiscal year to be made available for reimbursement to VWWOS under the terms of this paragraph for repair, maintenance and replacement expenses which exceed the Replacement Cap and to cover potential increase to the Consumer Price Index. VWWOS may invoice the City for up to 25, 000 for any individual repair, maintenance or replacement item. VWWOS shall notify City in writing when VWWOS has invoiced or expects to invoice the City a total of more than eighty percent 80%) of the overall replacement budget or more in any fiscal year. 2) If VWWOS proposes a single repair, maintenance and replacement item costing more than $ 25, 000, or there are insufficient funds remaining in the annual $ 300, 000 budget to cover the repair, maintenance or replacement item, VWWOS shall notify the City in writing as soon as possible and, where reasonably possible, sufficiently in advance of the need for any repair, maintenance or replacement that the City may evaluate and determine whether to provide additional funding for repair, maintenance or replacement in that fiscal year. 3) Within ten ( 10) business days after receipt of such a notice, the City may( i) authorize VWWOS to proceed with such repair, maintenance or replacement item; ( ii) with respect to the replacement of equipment, replace the equipment at the City' s expense; ( iii) invite VWWOS to meet and confer regarding the need for the repair, maintenance or replacement; or( iv) disapprove such repair, maintenance item and/ or replacement. If City provides or causes a third party to provide replacement equipment, City shall solely responsible for administering and enforcing any warranties or guarantees relating to such equipment. If the City authorizes VWWOS to proceed with a repair, maintenance or replacement item, VWWOS may charge the City via its monthly statement under Section 7. 2 of this Agreement for the Cost of the Work plus a five percent ( 5%) mark- up.
c) In the event that VWWOS determines, consistently with Prudent Industry Practice, that a repair, maintenance or replacement item which would otherwise require approval of the City under Section 4. 8( b) of this Agreement is necessary to respond to an emergency that requires immediate action in order to ( i) prevent an avoidable violation of Applicable Law or of a Governmental Approval; ii) to protect the health and safety of its employees agents or subcontractors; or ( iii) to protect the public, VWWOS may proceed with the repair, maintenance or replacement item without advance City approval. However, VWWOS shall notify the City of the emergency as soon as reasonably feasible and not later than the end of the next business day following the onset of the emergency and consult with the City regarding the nature of the emergency and the work necessary to respond to it. City shall pay VWWOS for such emergency services, including parts and labor, under the standards of Section 4. 8( b) of this Agreement or, if it disputes ( x) VWWOS' s determination that an emergency occurred, ( y) whether the means VWWOS selected to respond to the emergency are consistently with
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Prudent Industry Practices ( taking into account the nature of the emergency, or( z) substantiation of the cost of VWWOS services with respect to that emergency, it shall initiate dispute resolution proceedings under Article 15 of this Agreement.
Section 4. 9 Capital Improvement Program Recommendations VWWOS shall develop and deliver to City by October 31 of each year a capital improvement program recommendation, identifying Capital Projects or other system expansions, major repairs or expenditures anticipated to be required for the Facility in order to restore, maintain, replace or upgrade the equipment or other aspects of the Facility for efficiency, safety, function or to meet Effluent Specifications and comply with current or anticipated Applicable Law.
Section 4. 10 Biosolids Services
Management of sewage sludge generated by the Facility( referred to herein as " Biosolids") shall be conducted by the Parties as set forth below:
a) VWWOS shall manage the Biosolids handling process at the Facility.
1. VWWOS shall dry the sludge to 12% solids and stockpiling it for easy loading into trucks.
2. VWWOS shall remove sludge and solid waste from screens, sumps, ponds, and clarifiers as needed to ensure optimal plant operation.
3. Any handling and storage of residual sludge, solid waste, and biosolids at the Facility shall be controlled and contained in a manner that minimizes leachate formation and precludes infiltration of waste constituents into soils. b) VWWOS shall reasonably assist City in applying for, acquiring and maintaining all Governmental Approvals required for the disposal or beneficial use of Biosolids. City shall be solely responsible for the selection of the contractor for the disposal or beneficial use of the Biosolids. Use and disposal of Biosolids shall comply with Applicable Law, including permitting requirements and technical standards listed in 40 C. F. R 503.
c) City shall be solely responsible for removal, hauling, transportation, and disposal of Biosolids. The City shall select a properly licensed contractor, and City will ensure that such contractor reasonably cooperates with VWWOS such that it does not interfere with Facility operations. VWWOS shall reasonably cooperate with the City-selected contractor to schedule and coordinate pickups of Biosolids during normal facility operating hours. d) VWWOS shall be responsible for performing Biosolids analysis as currently required by the NPDES and WDRs Monitoring and Reporting Programs and 40 C. F. R 503, with laboratory analysis reimbursed by the City pursuant to Section 7. 8( c), and shall also be responsible for maintaining records of sludge storage and disposal per the NPDES and WDRs Monitoring and Reporting Programs as of the Contract Date.
e) In no event shall VWWOS have any liability for Losses with respect to the Biosolids transported and delivered pursuant to this Section 4. 10, except to the extent such Losses arise directly as a result of VWWOS' s negligence in performing its obligations relating to Biosolids management under this Section 4. 10. Notwithstanding anything to the contrary in this Agreement, City will at all relevant times retain title and risk to all Biosolids generated by the Facility.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 4. 11 Solid and Other Wastes
VWWOS shall be responsible for the disposal of solids and other wastes ( other than Effluent and Biosolids) produced or generated by the Facility.
Section 4. 12 Response to Problems and Emergencies
a) VWWOS shall use best efforts consistently with Prudent Industry Practices to respond to emergencies no later than one ( 1) hour from such time VWWOS or any of its agents or employees has actual notice that an emergency exists and shall work continuously and as expeditiously as is reasonably practical to resolve the emergency. VWWOS shall respond promptly to normal problems relating to the Facility and shall rectify such problems as expeditiously as is reasonably practicable. b) VWWOS shall notify the City of past or potential future non- compliance with any prohibition, effluent limitation, or receiving water limitation in the NPDES Permit, within 24 hours of having knowledge of such noncompliance. City shall promptly notify the and Central Vatley Regional Water Quality Board of past or potential future non- compliance with any prohibition, effluent limitation, or receiving water limitation in the NPDES Permit, no later than 24 hours of having knowledge of such noncompliance. VWWOS shall prepare a written notification to the City within two ( 2) calendar days of knowledge of such noncompliance. The City shall notify the Central Valley Regional Water Quality Control Board in writing within five ( 5) days, unless the Board waives confirmation, in accordance with the NPDES Permit notification requirements.
Section 4. 13 Emergency Preparedness Plan
a) VWWOS shall prepare and revise as necessary an emergency preparedness plan consistent with the requirements of Applicable Law, establishing procedures for foreseeable emergencies or abnormal conditions affecting the Facility and for maintaining and restoring wastewater treatment services as rapidly as possible. Potential emergency situations which the Emergency Preparedness Plan must address include illness and injury to staff and visitors, natural disasters, terrorist acts, power failures, spills, release of contaminants, Influent volumes or concentrations in excess of the Facility Capacity, and violations of discharge permit limits. The Emergency Preparedness Plan shall include written policies for preventive measures and response actions. The Emergency Preparedness Plan shall provide for monitoring of system alarms that evidence that plant operations have exceeded operating set points and for notice to the on- duty or on- call operations staff of such events. The Emergency Preparedness Plan shall provide for appropriate interaction and coordination with City departments, including, but not limited to, fire police and public works, the State Office of Emergency Services, county agencies, and other jurisdictions. b) VWWOS shall submit the Emergency Preparedness Plan to the City for review and approval within ninety( 90) days after the Effective Date. City shall approve or disapprove the plan within thirty( 30) days after receipt thereof. If City disapproves the plan, it shall identify the areas of deficiency and such revisions as would make the plan acceptable to the City. If City fails to respond within such thirty( 30) day period, VWWOS shall implement the plan until such time as the City' s comments are received. If the City approves the plan, no further action of VWWOS shall be required.
If City disapproves the plan or requests amendments to it, VWWOS shall prepare a revised plan for review by City under this Section 4. 13( b). VWWOS shall submit to the City for review and approval any amendments to the Emergency Preparedness Plan prior to the date on which such amendments are, or are required by Applicable Law, to be effective.
Section 4. 14 Hazardous Materials Business Plan
a) VWWOS shall assist the City in preparation of the Hazardous Materials Business Plan HMBP") for the Facility, which the City shall prepare in accordance with San Joaquin County guidelines.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
City shall request of VWWOS documentation reasonably necessary for preparation of the HMBP, and VWWOS shall provide the requested documentation within thirty( 30) days of receipt of the request. VWWOS shall assist the City in revisions to the HMBP as may be reasonably necessary. b) City will be responsible for uploading the HMBP to the California Environmental Reporting System and payment of all associated fees.
c) VWWOS shall comply with San Joaquin County ( or any other applicable Governmental Agency) guidelines regarding the HMBP implementation and preparing updates. d) If the HMBP is required by San Joaquin County( or any other applicable Governmental Agency) to be updated, then VWWOS shall work with City to establish a schedule for providing draft and final HMBP updates that allows City to submit the revised HMBP by County( or any other applicable Governmental Agency)-established deadlines.
Section 4. 15 OSHA Compliance Program
VWWOS shall obtain the City' s approval of, adopt and implement an Occupational Safety and Health Act ( OSHA) compliance program for all personnel employed or managed by VWWOS who are involved with the operation and maintenance of the Facility. The OSHA Compliance Program will include regularly scheduled safety training sessions for all plant personnel, standard operating procedures for chemical handling, confined space entry and emergency response, and the care and use of proper safety equipment. All personnel involved in the operation and maintenance of the Facility shall receive the complete training program and an annual refresher course as required by OSHA.
Section 4. 16 Odor Control
VWWOS shall implement a regimented housekeeping schedule and work plan for the Facility to maintain clean facilities. VWWOS shall maintain an active approach to odor control through diligent operation of the Facility VWWOS shall review the odor conditions of the systems components on an ongoing basis throughout the Term. VWWOS shall be responsible for all reasonable steps, consistent with Prudent Industry Practices, to reduce odors and to address odor complaints with the goal that no offensive odors can be perceived off the Site, including logging all odor complaints, evaluating those complaints and resolving them as promptly as reasonably practicable and consistently with VWWOS' s maintenance and repair obligations under this Agreement.
Section 4. 17 Supplies
VWWOS shall purchase and maintain throughout the contract period an inventory of chemicals, fuels, parts, and supplies, sufficient to ensure no interruption of service or failure to comply with State, federal and local laws, regulations and permits. VWWOS shall provide a written inventory to the City within thirty( 30) days of a written request of the City. The cost for chemicals used at the Facility shall be reimbursed by the City in accordance with Section 7. 8.
Section 4. 18 Preparation of Reports
VWWOS shall prepare for submission by the City to agencies with jurisdiction, and act consistently with Prudent Industry Practices to ensure the accuracy of, the following reports, consistent with the requirements of Applicable Law as of the Effective Date:
a) Influent and Effluent monitoring reports;
b) Alarm monitoring;
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
c) Laboratory reports;
d) Monthly complaint log; and
e) Any other reports reasonably requested by the City, and if such City request causes VWWOS to incur additional costs, City shall reimburse VWWOS therefor as a condition to VWWOS producing such reports.
Notwithstanding anything to the contrary in this Agreement, the City sha l have the sole authority to issue, and shall be solely responsible for issuing, all reports required under Applicable Law, including the NPDES Permit and WDRs. VWWOS shall provide reasonable assistance to the City with preparation of all reports required under the NPDES Permit and WDRs, which the City will be responsible for preparing and submitting to applicable Governmental Authorities, including inquiries regarding Facility performance.
Section 4. 19 Operation and Maintenance Manuals
VWWOS shall prepare new operation and maintenance manuals for the Facility and provide a copy for the City' s review and approval within three ( 3) months of the Effective Date. The manuals shall reflect Prudent Industry Practices. The manuals shall include descriptions of each unit or system within the Facility and its component parts and the function, operating characteristics, performance curves, and limiting conditions of each. Interrelations among groups of equipment shall be described along with operation of individual equipment components. Manufacturer equipment manuals for each piece of equipment shall be maintained as part of the manuals. The manuals shall be updated as necessary to maintain their currency and updates shall be submitted in advance to the City for review and approval.
Section 4. 20 Standard Operating Procedures
Create and keep current Standard Operating Procedures for the Facility to ensure proper personnel safety and compliance with the Agreement.
Section 4. 21 Preparation of Records
VWWOS will assign a Facility employee to be the Operator of Record for the Facility. VWWOS shall compile, maintain, and provide upon request from the City; and shall act consistently with Prudent Industry Practices to ensure the accuracy of, the following records:
a) the Computerized Maintenance Management System reports regarding all repairs; b) the WIMS system regarding all data recorded;
c) daily logs documenting status of Facility observations and operations adjustments; d) an inventory of all managed assets;
e) a capital repair and replacement plan consistent with current budgets; and f) records of labor hours and material cost for each work order, with each work order classified as preventive, predictive or corrective; and g) an annual report listing items invoiced by VWWOS to the City for the operation of the Facility, excluding Service Fees. This report shall be a public record under the provisions of California Government Code Section 6252( e).
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 4. 22 Cooperation Regarding Warranties
VWWOS shall cooperate with City in enforcing equipment warranties and guarantees and, upon payment by City for any equipment purchased by VWWOS under this Agreement shall assign all such warranties and guarantees to City. Nothing in this provision shall require VWWOS to pay any costs of prosecuting or participating in litigation to enforce any equipment warranty or guarantee, although VWWOS will reasonably cooperate with any such litigation in which City may be involved. With respect to all equipment newly acquired and installed as part of the Facility, VWWOS shall administer and comply with the requirements of all equipment warranties issued by equipment manufacturers and VWWOS shall be responsible for enforcing on behalf of City all equipment warranties and guarantees against manufacturers. City shall cooperate with VWWOS in connection with VWWOS' s efforts under this Section
4. 22. In no event shall VWWOS' s obligations under a warranty or guarantee be any greater or more expansive, or extend beyond the period of, the warranty provided by the manufacturer of any such equipment.
Section 4. 23 Security
VWWOS shall maintain security for the Facility and the Site as specified in Exhibit J. City acknowledges that performance of the foregoing obligations does not constitute a guarantee by VWWOS of the security of the Facility. Provided that VWWOS complies with the provisions of this Section 4. 23, VWWOS shall not have any liability or obligations for Losses related to any theft, vandalism, or unlawful or unauthorized entry upon the Facility or Site although theft vandalism or unlawful or unauthorized entry upon the Facility or the Site shall not alter or diminish VWWOS' s responsibilities to maintain and repair the Facility pursuant to the terms of Section 4. 7, Section 4. 8, and Section 4. 9 of this Agreement. City shall not have any liability or obligations to VWWOS Indemnified Parties for Losses related to any theft, vandalism, or unlawful or unauthorized entry upon the Facility or Site.
Section 4. 24 Meetings
VWWOS will meet at least monthly with City' s designated representative to review and discuss operating and maintenance reports, funding, and activities, plans and priorities for the Facility. VWWOS shall also meet with representatives of the State, U. S. Environmental Protection Agency, or other Governmental Agencies or the City' s consulting or staff engineer as reasonably required.
Section 4. 25 No Title
In performing the Services under this Agreement at no time shall VWWOS be deemed to take title to the Facility or any Influent, Effluent, wastewater, Biosolids, or other wastes or byproducts treated, processed, generated, discharged or produced at the Facility or flowing through the City sewage collection system.
Section 4. 26 City Operational Responsibilities
City shall be solely responsible for the inspection, operation, maintenance, and repair of all sewers, storm sewers, sewer mains, pump stations, and related facilities and equipment up to Points of Influent Delivery, and VWWOS shall have no liability or responsibility therefor. City shall be solely responsible for the inspection, operation, maintenance, and repair of water storage ponds ( including Pond 5), spray irrigation fields, river discharge and related equipment and facilities beyond the Points of Effluent Delivery, and VWWOS shall have no liability or responsibility therefore; provided, however, that Veolia will, at the request of the City, operate and maintain the additional valves noted as B1 and B2 in Exhibit L, Diagram L- 3.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 4. 27 Capital Projects
a) Capital Projects Generally. It may be necessary or desirable from time to time during the Term to undertake Capital Projects to modify, alter, or improve the Faci ity. Such Capital Projects may be warranted in order to ( i) respond to a Change of Law or Uncontrollable Circumstance; ( ii) respond to actual or anticipated changes in Influent volumes and characteristics or other demands on the Facility; ( iii) anticipate or address obsolescence of any portion of the Facility; or iv) incorporate new technology or other improvements to enhance the efficiency, performance or reliability of the Facility.
b) Capital Project Implementation.
i) Capital Project Contractor. To the extent allowed by Applicable Law, VWWOS may be engaged by the City to undertake Capital Projects affecting the Facility approved during the Term.
ii) Capital Project Financing. Unless otherwise mutually agreed to by the Parties, City shall be solely responsible for financing and funding any Capital Project. iii) Capital Projects Constructed by Other Entities. If City engages any other contractor to construct any Capital Project ( the" Capital Project Contractor"):
1) City and such Capital Project Contractor shall be solely responsible for any damage to the Facility or any other Losses arising out of or resulting from the performance of the work by the Capital Project Contractor or from defects in the material, equipment or work performed by the Capital Project Contractor
2) City and such Capital Project Contractor shall be solely responsible for any damage to the Facility or any other Losses arising out of or resulting from the performance of the work by the Capital Project Contractor or from defects in the material, equipment or work performed by the Capital Project Contractor.
3) Within fifteen ( 15) business days following receipt of written notification from the City stating that a Capital Project has been completed and accepted by the City, VWWOS shall submit to City( a) proposed adjustments to the Performance Guarantees that VWWOS demonstrates by credible evidence are necessary to fairly reflect the consequences of the Capital Project; and ( b) a proposed adjustment to the Service Fee to reflect any changed costs of operation, maintenance, repair and replacement necessarily resulting from the Capital Project ( collectively, the" Capital Project Adjustments"). City shall review such proposed Capital Project Adjustments within forty-five ( 45) days and shall approve the Capital Project Adjustments or demonstrate by credible evidence that the requested Capital Project Adjustments are unwarranted. Proposed Capital Project Adjustments shall be deemed approved if City does not disapprove such Capital Project Adjustments within fortyfive ( 45) days following their submission to City. Any disputes regarding approval of any Capital Project Adjustments shall be resolved pursuant to Article 15 of this Agreement. 4) VWWOS' s obligation for the maintenance and operation of portions of the Facility affected by a Capital Project Contractor shall be the same as its obligations for the maintenance of all other portions of the Facility except as expressly provided in this subparagraph ( 3). If VWWOS wishes to disclaim responsibility for any such portion of the Facility(" the disclaimed portion") on the basis that the work does not comply with Applicable Law, Governmental Approvals or Prudent Industry Practices, that it will materially adversely affect VWWOS' s ability to meet the Performance Guarantee or that it will materially increase VWWOS' s cost to perform the Services, the VWWOS shall give City written notice of that fact within fortyfive (45) days after receipt by VWWOS of written notice from the City that the Capital Project
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
has been completed and accepted by the City. If after such forty- five ( 45) day period, VWWOS discovers a defect in the Capital Project that was latent or not readily discernible by VWWOS during such forty-five ( 45) day period, then VWWOS shall give the City written notice thereof within fifteen ( 15) business days of its discovery. Any notice under this subparagraph ( 3) shall specify the deficiency in the Capital Project and, to the extent reasonably possible, VWWOS' s recommendations on curing the deficiency. If the City cures, or arranges for the cure of, the defect in a manner specified by VWWOS and consistent with Prudent Industry Practices, or if VWWOS fails to give timely written notice of the defect, then VWWOS shall be responsible for the disclaimed portion to the same extent as for other portions of the Facility. If City fails to cure, or arrange for the cure of, the defect in a manner specified by VWWOS and consistent with Prudent Industry Practices, VWWOS shall have no obligations or liability under this Agreement with respect to the disclaimed portion including any failure by VWWOS to meet the Performance Guarantee) and City shall defend, indemnify and hold VWWOS harmless from any Losses arising from the disputed portion. Any dispute between the parties with respect to the existence of a defect in the portions of the Facility affected by a Capital Project Contractor or the means necessary to remedy that defect shall be resolved pursuant to Article 15 of this Agreement. This subparagraph ( 4) shall survive the expiration or termination of this Agreement.
Section 4. 28 City Responsibilities
The City shall have the following responsibilities and obligations:
a) Access. City shall provide access and use of all real and personal property, equipment, improvements, buildings, structures and facilities under the City' s ownership or control and located at the Site on the Effective Date.
b) Permits Licenses and Governmental Approvals. To the fullest extent allowed by law, City shall, with such assistance and cooperation from VWWOS as is required by this Agreement acquire and maintain all existing or additional real property Governmental Approvals, and rights- of- way required for operation and maintenance of the Facility. The City shall be responsible for any and all permitting fees with respect to Government Approvals related to the Facility( other than professional licensures of VWWOS agents and employees) and for the obtaining of necessary Government Approvals. VWWOS shall assist and cooperate with City in the application for any such Government Approvals.
c) Influent. City shall make best efforts not to deliver Non- Specification Influent to the Facility. In the event that Non- Specification Influent reaches the Facility, City shall reasonably exercise its police power and enforcement authority to remedy and prevent any third- party conduct which has or will generate Non- Specification Influent, including enforcement of the City' s sewer system ordinance. City shall consider in good faith any recommendations of VWWOS for the adoption of ordinances or other enforcement actions to prevent or reduce Non- Specification Influent to the Facility.
d) Industrial Wastewater Pretreatment Program.
1. City shall adopt, maintain, and enforce an industrial pretreatment program for the Service Area, meeting all applicable requirements of the NPDES Permit, 40 C. F. R. Part 403, and any other Applicable Law ( the" IPP").
2. City shall not approve any such connection to the sewage collection system or change in the quantity, characteristics, or concentrations of wastewater discharged by any user if the wastewater to be discharged would violate the IPP or result in Non- Specification Influent, but the City shall otherwise retain sole decision- making authority to approve, disapprove, or conditionally approve any such connection or change.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
e) Reports. Except with respect to reports VWWOS must submit by virtue of its employee' s status as Operator of Record of the Facility, if and when an employee of VWWOS takes on that status pursuant to Section 4. 21 of this Agreement, and as defined in Section 4. 18, or otherwise by virtue of Applicable Law, City shall timely submit to the appropriate Governmental Agencies all discharge monitoring reports and other reports required under Applicable Law. f) Operating Responsibilities. City will be responsible for the following items, including all associated costs:
1. Operating and maintaining the entire recycled water system, including operation and maintenance of PMP- 1, the River Discharge Pump Station, Recycled Water Ponds A, B, C, and Percolation Ponds LAS- 3; provided that VWWOS will coordinate with the City as needed on the operation of the PMP- 1 and River Discharge Pump Station;
2. Paying for Biosolids loading and Biosolids disposal through direct payments to contractors, consistent with Section 4. 10;
3. Landscape maintenance and weed control for the entire Facility site;
4. SCADA system operation and maintenance; provided that VWWOS shall maintain instrumentation from each piece of equipment up to its PLC;
5. Maintenance of Facility computers and printers, including those used by VWWOS, phones and fire alarms and security system; and
6. Providing space and access to computer room for the installation of needed equipment for VWWOS to maintain connection and use of the VWWOS server. g) Other Responsibilities. City shall perform all other functions and retain all responsibilities and obligations related to the Facility and sewage collection system not expressly assumed by VWWOS under this Agreement, provided, however, that VWWOS shall give City written notice of any obligation related to the Facility of which VWWOS has actual knowledge.
Section 4. 29 Disclaimer of Implied Warranties
VWWOS' s Performance Guarantee set forth in Section 4. 2 is the exclusive guarantee and warranty under this Agreement. Except as specified in this Agreement, VWWOS DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Nothing in this Section 4.29, however, shall undermine the Performance Guarantee or VWWOS' s other duties under this Agreement.
Section 4. 30 Expansion of Facility or Construction of New Wastewater Treatment During the Term, if the City elects to expand the Facility or to construct one or more new wastewater treatment facilities, the City shall grant VWWOS the right to submit the first proposal to operate, maintain, and staff the expanded Facility or new wastewater treatment facility.
Section 4. 31 Americans With Disabilities Act
The City acknowledges and agrees that VWWOS shall not be liable or responsible for complying with the standards of the Americans with Disabilities Act in connection with the design and construction of any portion of the Facility or the Site.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
If City or Applicable Law requires VWWOS to undertake any action or make any improvement to the Facility or the Site related to the standards or compliance with the Americans with Disabilities Act, that requirement shall constitute a material change in scope subject to an increase in the Service Fee pursuant to Section 7.5.
Section 4. 32 Non- Approval of Repair or Replacement
If City disapproves a Capital Project or a repair, maintenance, or replacement item requested by VWWOS, and the failure to make or undertake such Capital Project or repair, maintenance, or replacement item results in VWWOS' s inability or failure to satisfy the Performance Guarantee, to comply with a Governmental Approval or Applicable Law or to perform its other obligations under this Agreement, then: ( i) VWWOS shall have no liability for any Losses that arise out of the failure to implement such Capital Project or repair, maintenance, or replacement item; ( ii) VWWOS shall have no fiability for a failure to meet its Performance Guarantee or to perform its other obligations under this Agreement ( the foregoing, however, shall not release VWWOS from its obligations to use its commercially reasonable efforts to perform its other obligations under this Agreement); and ( iii) City shall indemnify, defend and hold the VWWOS Indemnified Parties harmless from and against all Losses that arise out of the failure to implement such Capital Project or repair, maintenance, or replacement item. This Section 4. 32 shall survive the expiration or termination of this Agreement.
Section 4. 33 Resellers Permit
Within thirty( 30) days of the Effective Date, VWWOS shall obtain a rese lers permit pursuant to Uniform Local Sale and Use Tax Regulation 1806 of the State Board of Equalization so the situs of all sales subject to sales taxation used in the performance of Services under this Agreement shall be within the City of Lathrop.
Article 5. OWNERSHIP OF FACILITY; LICENSES; ACCESS; NATURE OF AGREEMENT Section 5. 1 Ownership of Facility
City and VWWOS hereby acknowledge that City is the sole owner of the Facility and the Site; provided, however, that equipment installed without the use of City funds shall remain the property of VWWOS until the City reimburses VWWOS for the cost of that equipment as provided in this Agreement.
Section 5. 2 License
a) Site License. Effective on the Effective Date and subject to the terms and conditions set forth in this Agreement, City hereby grants to VWWOS a non- exclusive license, coupled with an interest, on, over, in, under and across the Site conferring upon VWWOS the following rights ( the Site License"):
1. Operate, maintain, repair and replace the Facility, and all equipment, structures, improvements, fixtures, and facilities thereon and appurtenant thereto;
2. Discharge Effluent produced by the Facility, and store, treat and manage all Biosolids, solid, liquid and other wastes and substances generated in the operation and maintenance of the Facility.
3. Construct, operate, use, maintain, repair and replace ancillary facilities, including access roads, driveways, gates, fences, parking areas, and utilities ( including the right to grant sublicenses or licenses therefor);
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
4. Install, operate, use, maintain, replace, repair and remove such equipment, appliances, devices or other necessary or convenient structures and improvements in, on, over and under or across the Site, and each and every part thereof, as may be necessary, desirable or useful for the operations and activities required or authorized by this Agreement; and
5. Temporarily store equipment, construction materials, or excavated materials on the Site for purposes of performing the foregoing work.
Nothing in this Section 5. 2 shall expand the Services for which VWWOS is obligated under this Agreement.
b) Compliance with Zoning and Applicable Law. Nothing in this Agreement or the Site License shall constitute or grant VWWOS an exemption from the General Plan, zoning, ordinance or other land use regulations of the City, or from any other Applicable Law, with respect to the Facility or the Site; provided, however, that should the Facility, the Site or the operations and activities contemplated under this Agreement violate Applicable Law, VWWOS' s compliance with that Applicable Law shall be governed by Section 7. 4 and Section 7. 5.
Section 5. 3 City Access
During the term of this Agreement, City and its designees shall retain at all times the right to enter the Facility and the Site for any reason, including to determine VWWOS' s performance of the terms of this Agreement. In connection with such entry, the City and all City employees and agents shall observe all health and safety rules established by VWWOS and pursuant to Applicable Law. City shall indemnify, defend and hold the VWWOS Indemnified Parties harmless for, any personal injury, property damage, or any other Losses arising out of, or related to, the entry by City, City employees or agents upon the Facility and the Site that does not arise out of the negligence or willful actions of VWWOS Indemnified Parties.
VWWOS shall indemnify, defend and hold the City Indemnified Parties harmless for, any personal injury, property damage, or any other Losses arising out of, or related to, the entry by City, City employees or agents upon the Facility and the Site that arises out of the negligence or wiliful actions of VWWOS or its employees or agents. This Section 5. 3 shall survive expiration or termination of this Agreement.
Section 5. 4 City Use of Equipment
The City acknowledges and agrees that any alteration, improvement, maintenance or repair of the equipment at the Facility carried out by the City without VWWOS' s prior written consent shall be a material breach of this Agreement unless such alterations or repairs are made as a result of an emergency condition that such necessitates action by the City. In the event of such an emergency repair, the Parties shall meet and confer in good faith concerning any adjustments to the compensation or the Performance Guarantee that VWWOS provides a credible basis are necessary as a result of the emergency repair. If the Parties fail to reach agreement after such discussions, they shall resolve their dispute pursuant to Article 15 of this Agreement.
Section 5. 5 Relationship of Parties
a) City and VWWOS intend that City and VWWOS shall not be treated as partners or joint venturers for any purpose and neither has the authority to bind the other to any agreement obligation or duty.
b) VWWOS is an independent contractor of City. VWWOS shall be responsible for all costs associated with its employees, including wages and salaries, benefits, workers' compensation and unemployment compensation, any associated tax liabilities and costs associated with maintaining VWWOS engineering license( s) for the State.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
City shall be responsible for all costs associated with its employees, including wages and salaries, benefits, workers' compensation and unemployment compensation, any associated tax liabilities.
Article 6. VWWOS SCOPE OF SERVICES AND CITY RESPONSIBILITIES Section 6. 1 User Fees
a) Collection of Fees. To the extent permitted by Applicable Law, City shall establish, maintain, and collect all ( 1) sewer service fees, charges and assessments, ( 2) connection charges, assessments and fees, ( 3) water treatment charges, assessments and fees, ( 4) service charges, tapping fees and connection fees, ( 5) amounts payable for sanitation services under agreements with the property owners and developers, and ( 6) other revenue or income derived by, or on behalf of, the City from the use or operation of the Facility and the City's sewage collection system ( collectively, the User Fees") in an amount sufficient to generate the revenues necessary pay for the Compensation and any additional charges or amounts payable to VWWOS under this Agreement, or incurred by the City in connection with this Agreement ( including adjustments in Compensation required by Article 7) Fee- Covered Expenses"). In no event shall the City discount, waive, reduce, reallocate, defer or alter the User Fees which may lawfully be used for Fee- Covered Expenses in a manner or to an extent which would render the City unable to fund Fee- Covered Expenses without the prior written consent of VWWOS. City shall, to the maximum extent permitted by law( i) increase User Fees, ( ii) levy taxes, fees, charges and assessments, ( iii) obtain federal, State and local grants, loans, funds and assistance ( including, to the extent permitted by law, Community Development Block Grant funds, grants and loans), and ( iv) obtain proceeds from insurance, Federal Emergency Management Agency grants and reimbursement programs and any other available grant or reimbursement program, in each case to the extent necessary to pay for the costs of the Fee- Covered Expenses. All amounts procured as a result of the items described in clauses ( i)-( iv) above shall be deemed " User Fees" for all purposes under this Agreement. VWWOS shall have no ratemaking authority under this Agreement.
b) Dedication of Fees. Except as required by Applicable Law or contractual commitments of the City entered into prior to the Effective Date, User Fees and other revenue or income derived by the City from the operation of the Facility shall be used for the following in the order of priority stated here: ( 1) payment of the Compensation set forth in this Agreement; ( 2) repayment of debt service on outstanding bonds or other debt of the City with respect to the Facility; ( 3) direct and indirect costs of operation, maintenance, repair, replacement and improvement of the Facility; and ( 4) other lawful uses of such funds
c) Review of Financial Records and Audit. Subject to Applicable Law, including provisions protecting the privacy rights of utility customers, VWWOS shall have the right, during regular business hours, to review and copy, at VWWOS' s cost, the City' s financial records relating to User Fees collected directly or indirectly by the City and any expenditure of those User Fees. VWWOS shall have the right, at VWWOS' s cost, to have an independent accountant conduct a periodic audit of the User Fees received and expended by the City. If such an audit does not identify a discrepancy in the collection or expenditure of user fees of at least$ 10, 000, VWWOS shall also reimburse City for any reasonable staff-time or consulting fees, including reasonable legal fees, incurred by City as a result of such audit. City staff- time shall be charged at the fully burdened rate established by the City in conjunction with the City annual budget.
Section 6. 2 Use of Facility
a) General. The Facility shall be used solely for the treatment of ( 1) Influent collected within the City; (2) and industrial wastewaters collected by another sewage municipality pursuant to an intermunicipal agreement approved pursuant to this Agreement; and (3) such other purposes as specifically described in this Agreement.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
At no time shall VWWOS or City use or knowingly permit the use of the Facility for any other purpose; nor shall VWWOS or City be obligated to use the Facility for any purpose other than those set forth in this paragraph ( a).
b) Inter- municipal Agreements. The City shall not enter into any new agreements to accept at the Facility sewage or industrial wastewaters from any other municipality without the approval of VWWOS. Such approval by VWWOS shall not be unreasonably withheld provided that ( 1) the Facility has adequate hydraulic and treatment capacity to treat the additional wastewater; and ( 2) the industrial wastewater generators agree or the other municipality agrees to adopt and enforce sewer maintenance, industrial wastewater pretreatment, and user fee collection programs meeting the requirements of this Agreement
Section 6. 3 Utility Services
City shall provide water and other City-provided utility services to VWWOS for the performance of the Services at the rates and on the conditions imposed on other similarly situated utility customers of the City and without discrimination or preference. The cost of water consumed at the Facility shall be paid by VWWOS. City shall pay for all electricity costs directly to the provider therefor and VWWOS shall not be responsible therefor.
Article 7. COMPENSATION
Section 7. 1 Service Fee
The Service Fee shall be calculated and annually adjusted in the manner specified in Exhibit K.
Section 7. 2 Payments
a) Monthly Service Fee. Starting in the second calendar month following the Effective Date, and on the first Business Day of each calendar month thereafter, VWWOS shall provide City with a statement ( the" Billing Statement") for the previous month, which will reflect the calculation of the Service Fee as set forth in Exhibit K. City shall pay the Service Fee due and owing for each Billing Period within forty- five ( 45) days of receipt of the Billing Statement. City acknowledges and agrees that it shall not be entitled to dispute ( i) any amounts of the fixed components of the Service Fee as set forth in Exhibit K; ( ii) any pass- through expenses set forth in Section 7. 8; or( iii) payments under Section 7. 3( b).
b) Annual Adjustment of Service Fee. On each July 1, the amount of the Service Fee shall be adjusted for inflation between the Effective Date or previous annual adjustment and the date of adjustment in proportion to the change in the Employment Cost Index, Total compensation for Private Industry Workers ( not seasonally adjusted) ( Series CIU201 S000300000A) for the United States, as published by the Bureau of Labor Statistics of the U. S. Department of Labor or any successor to that index. If the applicable Employment Cost Index is negative, the annual adjustment of service fee shall be deemed to be zero percent ( 0%) and shall not be negative. If the applicable Employment Cost Index exceeds five percent ( 5%) in a year, the annual adjustment of service fee shall be deemed to be five percent ( 5%).
c) Interest on Overdue Amounts. Interest shall accrue on all overdue amounts at the lesser of ( i) two percent above the Prime Rate or( ii) the maximum interest rate permitted by Applicable Law
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 7. 3 Adjustment to Service Fee for Certain Items a) Taxes
1. If the City or any entity controlled by City imposes any additional taxes, fees, host fees, assessments or other charges on VWWOS, other than those taxes, fees, assessments or other charges that are currently levied against VWWOS or expressly permitted in this Agreement, the applicable Fixed Component of the Service Fee shall be increased to reflect such additional obligations by VWWOS.
2. If any Governmental Agency( other than City or an entity controlled by City) imposes any taxes, fees, host fees, assessments or other charges on VWWOS ( other than federal or State taxes upon VWWOS' s income), the applicable Fixed Component of the Service Fee shall be increased to reflect such additional obligations by VWWOS.
Section 7. 4 Applicable Law
To the extent that any portion of the Compensation described herein violates Applicable Law or the terms of any debt, bonds, grants or other financing or debt incurred by City or otherwise with respect to the Facility or the Site as of the Contract Date or as agreed to by the Parties thereafter, VWWOS and the City shall adjust the Compensation to comply with such Applicable Law or the terms of such existing debt, bonds, grants or other financing or debt, as applicable, in order to provide VWWOS with the Compensation required by this Agreement. If the Parties are unable to agree upon such adjustments to Compensation, the adjustments shall be determined pursuant to Article 15.
Section 7. 5 Change of Scope; Change in Law; Uncontrollable Circumstances The Service Fee shall be increased, based on documented change in costs actually and reasonably incurred by VWWOS due to any material change in the Services or to any substantial change in the costs of operation and maintenance caused by a Change in Law or Uncontrollable Circumstances.
If the Parties are unable to agree upon adjustments to Compensation under this Section 7.5, the adjustments, if any, shall be determined pursuant to Article 15.
Section 7. 6 Non- Specification Influent
The Service Fee may be adjusted if and as set forth in Section 4. 3( b) above in the event NonSpecification Influent is delivered to the Facility.
Section 7. 7 Corrective Maintenance and Repair; Repair and Replacement Adjustments The Service Fee shall be adjusted if and as set forth in Section 4. 7, Section 4. 8, and Section 7. 2 above in certain instances relating to Services pertaining to repair, maintenance or replacement items.
Section 7. 8 Pass- Through Expenses
a) VWWOS shall be reimbursed in full for the cost of the insurance and payment and performance bonds required by City under this Agreement. VWWOS shall invoice City for such costs as and when incurred by VWWOS and City shall pay such amounts within forty- five ( 45) days of invoice thereof. b) Notwithstanding anything to the contrary in this Agreement, VWWOS shall be reimbursed in full, plus a five percent ( 5%) mark- up, for the cost of all chemicals used in connection with the operation of the Facility and otherwise required to perform the Services, including, but not limited to, Sodium Hypochlorite, Sodium Biosulfate, Polymer and Citric Acid.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
c) Notwithstanding anything to the contrary in this Agreement, VWWOS shall be reimbursed in full, plus a five percent ( 5%) mark- up, for the cost of all third party laboratory services and analysis used in connection with the operation of the Facility and otherwise required to perform the Services or to comply with Applicable Law, including the NPDES Permit and WDRs.
Article 8. RETURN OF WASTEWATER SYSTEM TO CITY
Section 8. 1 Return of Facility Upon Expiration
Upon expiration or termination of this Agreement, VWWOS shall return and quitclaim the Site License, and any other interest in the Facility and the Site VWWOS may have or claim, to the City at no charge free and clear of any Liens, except for those Liens existing on the Contract Date, authorized or contemplated by this Agreement, or otherwise approved by the City.
Section 8. 2 Pre- Exit Evaluation
a) Scope. No later than twelve ( 12) months and no earlier than eighteen ( 18) months prior to expiration of this Agreement or, if this Agreement is terminated on less than twelve months' notice, as far in advance of termination as practicable, the City may, at the City' s discretion and cost, conduct an exit evaluation ( the " Exit Evaluation") to determine that: ( 1) all maintenance, repair and replacements required by this Agreement have been completed in material compliance with this Agreement; ( 2) all management systems, records, and information have been satisfactorily maintained in material compliance with this Agreement; ( 3) the Facility is operating in material compliance with the Performance Guarantee; and ( 4) all buildings, grounds equipment and vehicles are in good operating condition except for ordinary wear and tear and except as impacted by Uncontrollable Circumstances. The Exit Evaluation shall include a walk-through inspection of the Facility and the Site, all machinery and structures, a review of maintenance, repair and replacement records, and a 48- hour performance test ( the " Exit Performance TesY'). Within ten ( 10) Business Days of its receipt of a report of the findings of the Exit Evaluation, VWWOS shall inform the City in writing of any disagreement with those findings. If VWWOS so notifies the City, the Parties shall resolve the dispute as set forth in Article 15 below.
b) Exit Performance Test. The Exit Performance Test is satisfied if it demonstrates that the Facility is capable of accepting Influent up to the Facility Capacity and meeting the Performance Guarantee. If the Exit Performance Test is not satisfied, and that failure is not excused by NonSpecification Influent, an Uncontrollable Circumstance a material breach by the City, or a refusal by the City to authorize a Capital Project or a repair, maintenance or replacement item recommended by VWWOS, VWWOS shall, at its cost, make all necessary repairs and replacements, and the Exit Performance Test shall be repeated at VWWOS' s expense until successful. c) Preventive and Predictive Maintenance Review. The Exit Evaluation shall include a review of preventive and predictive maintenance evaluations for the twelve ( 12) months prior to the end of this Agreement, and on one or more occasions after the end of this Agreement, with respect to such maintenance during the twelve ( 12) months following the end of this Agreement. Such evaluations shall be conducted in accordance with Exhibit G. VWWOS shall, before the end of this Agreement or up to twelve ( 12) months thereafter, be responsible for correcting, improving, repairing or replacing any component of the Facility found to require correction, improvement, repair or replacement under Prudent Industry Practices unless the need for such correction, improvement, repair or replacement is necessitated by ordinary wear and tear, Non- Specification Influent, an Uncontrollable Circumstance, a material breach by the City of which VWWOS provided City written notice, or the City' s refusal to authorize a Capital Project or repair, maintenance or replacement item recommended by VWWOS.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
d) Exit Inventories. An inventory of parts, tools, equipment, vehicles, chemicals, and other major consumable supplies will be performed by the City, with VWWOS' s cooperation, within one month prior to the expiration or termination of this Agreement. If the inventories are materially less than as required in Section 4. 17, VWWOS shall either replace such items or pay the City VWWOS' s cost to do so.
Article 9. CONFIDENTIAL INFORMATION
Section 9. 1 Confidential and Proprietary Information
City acknowledges that VWWOS and its affiliates have confidential and proprietary information relating to the processing of wastewater and the production and distribution of reclaimed water, and that disclosure of such information to City or City's representatives is solely to facilitate performance of this Agreement and is made solely under the terms and conditions of this Article.
Section 9. 2 Identification of Confidential Information VWWOS shall inform the City in writing of any confidential or proprietary information contained in any documents submitted to City by VWWOS under this Agreement (" Confidential Information"). VWWOS shall mark any such documents that contain Confidential Information with a legend " CONFIDENTIAL", PROPRIETARY", or the like. Confidential Information shall not be considered a" public record" for purposes of any law governing operations of the City unless a court of competent jurisdiction orders the release of the Confidential Information or unless the City makes that determination consistently with Section 9. 5 below; provided, however, that VWWOS acknowledges that this Agreement is a public record under the provisions of State law.
Section 9. 3 Disclosure of Confidential Information
Except for such disclosures as permitted under Section 9. 4 or Section 9. 5 ( after notice provided in Section 9. 5), no Confidential Information provided by VWWOS shall be disclosed by City to any other person or entity without the express written consent of VWWOS, in its sole discretion, and no such Confidential Information shall be used by City or City Employees or Agents for any purpose other than such purposes as expressly authorized under this Agreement. City and City Employees or Agents shall take all precautions necessary to preserve the confidentiality of such Confidential Information and to protect it from disclosure to third parties, except as required by law or permitted under Section 9. 4 or Section 9. 5. City agrees that it will be responsible for any breach of this covenant by City Employees and Agents.
Section 9. 4 Permitted Disclosure
Confidential Information received by City may be disclosed to City' s employees, auditors, accountants, legal counsel, engineering and other consultants, financial advisors, and insurers collectively, the" City Employees and Agents"), if and only to the extent that access to such Confidential Information is necessary in the performance by such person of their responsibilities with respect to this Agreement. Any such disclosure shall be limited to the amount of Confidential Information that is necessary for such City Employee or Agent to perform their responsibilities with respect to this Agreement. City shall require any City Employees and Agents to execute a confidentiality agreement acknowledging and agreeing to abide by the terms of this Article and VWWOS shall be a third- party beneficiary to each such confidentiality agreement.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 9. 5 Legal Demands
In the event that City or any of its representatives receive a legal demand from any Governmental Agency or any other party( including a demand by oral questions, interrogatories, requests for information or documents under the Public Records Act, subpoena, civil investigative demand or similar process or otherwise) to disclose any Confidential Information, City shall provide VWWOS with prompt written notice so that VWWOS may take such legal action as it deems appropriate to dispute such process and to protect the Confidential Information from disclosure. If VWWOS informs City within five ( 5) Business Days after it receives notice from City of the demand for disclosure of its intent to take such an action, and pending any such action to protect the Confidential Information, City shall take all reasonable steps to avoid prejudice to VWWOS' s rights and efforts to protect such Confidential Information. In the event a protective order or other remedy is not obtained, or that VWWOS waives compliance with the provisions of this Section 9. 5 by failing to give the notice of intent to take such an action within five ( 5) days, City will furnish only that portion of the Confidential Information which City determines in good faith it is legally required to disclose.
Section 9. 6 Limitation on Use
City shall not use, or allow any City Employees and Agents to use, any Confidential Information for any purpose other than to administer and enforce this Agreement.
Section 9. 7 Survival
The terms of this Article 9 shall survive termination of this Agreement.
Article 10. REPRESENTATIONS AND WARRANTIES
Section 10. 1 VWWOS Representations
VWWOS represents and warrants to the City that:
a) Existence and Powers. VWWOS is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and authorized to do business in California, is subject to personal jurisdiction in San Joaquin County, California, and possesses the full legal right, power, and authority to enter into and perform its obligations under this Agreement, including the authority through itself or its affiliates to provide engineering services within California. b) Due Authorization and Binding Obligation. This Agreement has been duly authorized, executed, and delivered by all necessary action of VWWOS, and constitutes a legal, valid, and binding obligation of VWWOS, enforceable against VWWOS in accordance with its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditor' s rights.
c) No Conflict. The execution and delivery by VWWOS of this Agreement, and the performance by VWWOS of its obligations under this Agreement, does not ( i) conflict with, violate, or result in a material breach of law, regulation, corporate charter or bylaw applicable to VWWOS, or( ii) conflict with, violate or result in the material breach of any term or condition of any order, judgment, decree, agreement or other instrument to which VWWOS or its affiliate is a party. d) No Litigation. VWWOS has no written notice of any action, lawsuit, or proceeding before any court or Governmental Agency that is pending or threatened in which an unfavorable decision could reasonably be expected to have a Material Adverse Effect on VWWOS' s execution or delivery of this Agreement, or the enforceability against VWWOS of this Agreement or VWWOS' s performance of its obligations hereunder.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
e) Proper Licenses and Credentials. VWWOS, its key personnel and subcontractors which will perform any of the Services possess and will maintain during the Term all required, current licenses, registration and credentials for the operation of the Facility. f) No Surety Completion. VWWOS warrants that no surety company has within the five ( 5) years prior to the Contract Date completed work on a project undertaken by VWWOS. g) No Major Claims. VWWOS warrants it has not, within the five ( 5) years prior to the Effective Date, been found liable for any claim or litigation in excess of Five Hundred Thousand Dollars ($ 500, 000) or in excess of ten percent ( 10%) of the original amount of any contract in issue, which event would have a Material Adverse Effect on its ability to perform the Services. h) No Serious OSHA Violations. VWWOS warrants it has not, within the five ( 5) years prior to Effective Date, been found liable for any the serious violations of the federal Occupational Safety and Health Act or the California Occupational Safety and Health Act that would have a Material Adverse Effect on its ability to perform the Services.
i) No Violation of Employment Laws. VWWOS warrants it has not, within the five ( 5) years prior to the Effective Date, been found liable for a material violation of any of the following: laws governing the payment of wages, benefits or personal income tax withholdings; the Federal Insurance Contributions Act withholdings requirements; state disability insurance withholdings, unemployment insurance payment requirements, which violation would have a Material Adverse Effect on its ability to perform the Services.
j) No Bidding Violations. VWWOS warrants it has not been debarred from bidding on or completing for a federal, State or local government project k) No Violations of Contractor' s State License Law. VWWOS warrants it has not been found liable for any material violations of the State Contractor' s License Law, which violation would have a Material Adverse Effect on its ability to perform the Services.
I) No False Claims. VWWOS warrants it has not, within the five ( 5) years prior to the Contract Date, been convicted of submitting or civilly adjudicated to have submitted a false or fraudulent claim to a Governmental Agency.
Section 10. 2 VWWOS Duty to Request Information and Disclose In connection with the retention of any subcontractor, VWWOS shall request that such subcontractor review the representations and warranties set forth in Section 10. 1 and disclose any items relating thereto to VWWOS. Upon receipt or actual knowledge of such items, VWWOS shall notify and disclose the same to City.
Section 10. 3 City Representations
City represents and warrants to VWWOS that:
a) Existence and Powers/ City is a general law city duly organized, validly existing, and in good standing under the laws of the State, with the full legal right, power, and authority to enter into and perform its obligations under this Agreement.
b) Due Authorization and Binding Obligation. This Agreement has been duly authorized, executed, and delivered by all necessary action of City, and constitutes a legal, valid, and binding obligation of City, enforceable against City in accordance with its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency, or other laws affecting creditor' s rights.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
City has satisfied all procurement and contracting procedures and obligations under Applicable Law governing the award and execution of this Agreement. City warrants that the funds required for all Compensation and other payments required under this Agreement for the first twelve ( 12) months of the Term shall be available through User Fees the City reasonably anticipates it will collect in that time.
c) No Conflict. The execution and delivery by City of this Agreement, and the performance by City of its obligations under this Agreement, do not ( i) conflict with, violate, or result in a material breach of law, regulation, charter, ordinance or bylaw applicable to City; or( ii) conflict with, violate or result in the material breach of any term or condition of any order, judgment, decree, agreement or other instrument to which City is a party; or( iii) contravene or result in any breach of or creation of any Lien on any property of City under any indenture, mortgage, loan agreement, lease or other agreement or instrument to which City is a party or by which City or any of its properties are bound. d) No Litigation. City has no written notice of any action, lawsuit, or proceeding before any court or Governmental Agency that is pending or threatened in which an unfavorable decision could reasonably be expected to have a Material Adverse Effect. e) No Event of Default. No condition exists that constitutes, or with the giving of notice or lapse of time or both would constitute an event of default by City under any indenture, mortgage, deed of trust, lease, bond issue, conditional sales contract, loan or credit arrangement or other material agreement or instrument to which City is a party or by which City or any of its properties or assets may be bound, which individually or in the aggregate with all such other events of default could reasonably be expected to have a Material Adverse Effect. City is not in default with respect to any Governmental Approval which default would have a Material Adverse Effect. f) Title. City owns fee simple title without material encumbrances to the Facility and the Site and has the power to grant VWWOS the Site License.
g) Taxes. As of the Contract Date, all real property, personal property, documentary, sales or use taxes relating to the Facility, the Site and the grant of the Site License to VWWOS which are due and payable have been paid in full, or adequate provision for payment has been made by City.
City makes no representation whether the grant of the Facility Site License to VWWOS may or will expose VWWOS to payment of property taxes to the County of San Joaquin or any other Government Agency and, VWWOS agrees to be liable for, and to timely pay any such taxes; provided, however, that in the event the payment of any taxes are required by VWWOS during the Term, the Service Fee shall be increased by the amount of such taxes. h) Environmental Conditions. The Site has been, and continues to be, in material compliance with all Environmental Laws. There have been no past, and there are not pending or threatened, claims, complaints, notices or requests for information received by the City with respect to any alleged violation of any Environmental Law at or relating to the Facility or Site or with respect to any potential liabilities with respect to Environmental Conditions at, on, in, under or affecting the Facility or the Site. The City is unaware of any Environmental Conditions that exist at on or under the Site that would give rise to liability under any Environmental Law. i) Land Use and Zoning. The Facility and the Site comply with the City' s General Plan, zoning ordinance, and other land use regulations of the City with respect to the Facility and the Site and any other Applicable law relating to land use or zoning.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATtNG SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Article 11. INSURANCE
Section 11. 1 Required Insurance
Starting on and after the Effective Date, VWWOS shall, at its own expense, secure and maintain in effect during the Term the following insurance:
a) Workers Compensation Insurance in accordance with Applicable Law. b) Commercial General Liability Insurance that names the City Indemnified Parties as additional insureds, including contractual liability coverage for amounts of$ 10 million per occurrence for death, bodily injury and property damage. The policy shall contain no endorsements limiting coverage for explosion, collapse or underground hazard, products and competed operations, or contractual liability.
c) Commercial Automobile Liability Coverage including non-owned automobile liability coverage, with a coverage limit of$ 5 million per accident for death, bodily injury and property damage. The City Indemnified Parties shall be named as additional insureds on this policy. d) Environmental Impairment Liability written on a form acceptable to City providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be$ 20 million per claim and aggregate. The City Indemnified Parties shall be named as additional insureds on this policy.
e) ( 1) All insurance in support of this Agreement shall be provided by VWWOS by and through its corporate insurance program. All indicated limits are merely minimum amounts of coverages to be available for the benefit of the City under this Agreement and the Parties acknowledge that VWWOS maintains coverage in amounts greater than such limits. Nothing herein is intended to ( i) make available to the City any such insurance other than as set forth in this Agreement; or( ii) limit the amount of insurance maintained by VWWOS in its independent judgment, in compliance with Prudent Industry Practices, or otherwise necessary in VWWOS' s view for the proper management of the risks intrinsic in this Agreement and otherwise in its business. The VWWOS- provided insurance shall be primary and non- contributory to any insurance held by a City Indemnified Party. All coverage described and the limits indicated are in excess of the costs of defense. All insurance coverage provided pursuant to this Agreement shall not prohibit the VWWOS Indemnified Parties from waiving the right of subrogation prior to a loss. Each Party hereby waives all rights of subrogation against the other Party. All insurance coverage and forms provided in support of this Agreement are subject to review and approval by City for compliance with the standards of this Agreement and, in the event of dispute with respect to the adequacy of any coverage or form, the Parties shall resolve that dispute pursuant to Article 15 of this Agreement. Notwithstanding the foregoing, the Environmental Impairment Liability insurance may be written by a non- admitted insurer. 2) In the event any insurance provided by this Agreement is eroded by claims or otherwise by more than fifty percent ( 50%) from the initial policy limits, VWWOS will notify the City of that fact in writing and meet and confer in good faith regarding steps to be taken to ensure that the coverages required by this Agreement remain available for the benefit of the City. 3) The cost of insurance provided by VWWOS under this Agreement provided for the protection of the City and VWWOS shall be the" Premium." The Premium shall be the total and only payment by the City for all insurance, losses and cost of defense and no adjustment shall be made for actual loss experience. Premiums shall include the sum of" fixed costs premiums," " limited expected losses," " limited allocated loss adjustment expense," and "limited claims service fees," all as defined below. " Fixed costs premiums" shall mean actual premiums paid for the applicable policy period to insurers for the required insurance under this Agreement.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Fixed costs premiums for all required lines other than workers compensation will be based on the percentage of revenues that VWWOS services under this Agreement for which insurance is provided bears to total revenues of VWWOS for the applicable policy period. As respects workers compensation, the premium is based on the percentage of payroll that this project bears to total payroll of VWWOS during the applicable policy period. Such premium shall include surplus lines fees and other taxes as may be applicable. " Limited Expected Losses" shall be a non- adjustable loss fund for the applicable policy period to be computed based on the percentage of revenues that this project bears to the total revenues of VWWOS multiplied by the total allocated corporate loss funds of VWWOS. " Limited Allocated Loss Adjustment Expenses" shall be a non- adjustable amount for the applicable policy period to be computed based on the percentage of revenues that this project bears to the total revenues of VWWOS multiplied by the total allocated loss adjustment expenses of VWWOS. As used herein, allocated loss adjustment expenses include estimated expenses for fees chargeable to a specific claim filed in connection with legal and medical services and necessary expenses of a third- party client approval. " Limited Claims Services Fees" shall mean a non- adjustable amount to be computed based on the percentage of revenues that this project bears to the total revenues of VWWOS multiplied by the total allocated claims services fee for VWWOS. The City acknowledges and agrees that any information provided to the City by VWWOS, or derived by the City from such information provided by VWWOS, to substantiate the Premium hereunder is Confidential Information subject to the provisions of Article 9 of this Agreement and shall not be divulged to any third parties without the express written consent of VWWOS, in its sole and absolute discretion, and need not be disclosed under the Public Records Act by virtue of Government Code Sections 6254( k) and 6254. 15. City further agrees that VWWOS may make data regarding its non- public, internal costaccounting and revenue information available for inspection by the City or its agents, but not copying or retention, at a location in California specified by VWWOS.
Section 11. 2 Additional Insurance Requirements
All insurance companies underwriting the insurance policies required by this Article must be California admitted insurers with an A. M. Best rating of not less than A:VII. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, terminated or cancelled and shall not be reduced in coverage or limits except after thirty( 30) days prior written notice to the City. If excess or umbrella liability insurance is used to meet limit requirements, that excess or umbrella policy shall provide coverage at least as broad as specified by this Agreement for the underlying coverages and shall include a drop- down provision providing primary coverage above any deductible or self- insured retention for liability not covered by primary insurance but covered by the excess or umbrella policy. Coverage shall be provided on a" pay on behalf" basis, with defense costs payable in addition to policy limits. VWWOS' s obligations to provide insurance under this Article shall not diminish in any respect City obligations to the VWWOS Indemnified Parties under Article 12.
Section 11. 3 Certificates of Insurance
VWWOS shall provide City certificates evidencing such insurance on or before the Effective Date and annually thereafter.
Section 11. 4 O& M Performance and Payment Bond
During the term of this Agreement, VWWOS will maintain a performance and payment bond in the amount of one ( 1) year's Service Fee securing faithful performance by VWWOS of its obligations under this Agreement with respect to operation, maintenance, repair and replacement of the Facility and the payment by VWWOS of subcontractors and suppliers for work and materials in the operation, maintenance, repair and replacement of the Facility.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 11. 5 Unavailable Insurance
If any of the coverages required in this Section 12 ( or any of the required terms of such coverages, including policy limits) become unavailable as determined under a commercial reasonableness standard, the Parties shall meet and confer in good faith regarding steps to be taken including procurement of such insurance as is available on commercially reasonable terms, to ensure that the City continues to receive the benefit of the risk- transfer program provided in this Section to the extent it is feasible to do so. Any disagreement which arises in those meet- and- confer discussions shall be resolved pursuant to Article 15 of this Agreement.
Section 11. 6 City Insurance
City shall, at its cost, maintain property damage insurance or self- insurance for the Facility for the full replacement cost thereof, and for all property, including vehicles owned by City and operated by VWWOS under this Agreement. Alternatively, City may give VWWOS written direction to provide such insurance and, if it is possible for VWWOS to do so at commercially reasonable cost, VWWOS shall do so and may pass the cost of that insurance through to the City without markup. If City provides such insurance, any such property, including vehicles, not insured commensurately with its replacement value shall be the financial responsibility of the City. To the extent the City provides insurance rather than selfinsurance, each policy of insurance provided in compliance with this Section shall include a waiver of subrogation in favor of the VWWOS Indemnified Parties. The provisions of Section 11. 2 and Section 11. 3 shall apply to insurance provided by the City in the same manner as they apply to VWWOS' s insurance obligations. The City' s provisions of insurance under this paragraph shall not diminish in any respect VWWOS' s obligations to the City Indemnified Parties under Article 12.
Article 12. LIABILITY AND INDEMNITY
Section 12. 1 VWWOS Indemnity
a) VWWOS shall defend indemnify and hold harmless City, its officers, employees and agents ( the" City Indemnified Parties") from and against any Losses that arise out of, or result from, and are related to the breach of any representation made by VWWOS in this Agreement; or any negligent or willful acts or omissions by the VWWOS Indemnified Parties with respect to performance of VWWOS' s obligations under this Agreement, except to the extent that any such Losses arise from the grossly negligent or willful actions of the City Indemnified Parties. b) VWWOS' s liability under Section 12. 1 or elsewhere under this Agreement ( in each case, whether arising under breach of contract, damages, indemnity, tort, strict liability, or any other theory of law or equity) shall not exceed $ 15 million cumulatively and in the aggregate for the duration of this Agreement; provided that the foregoing limitation shall not apply( i) to the extent that any Losses result from the gross negligence or willful misconduct of VWWOS in the material breach of VWWOS' s obligations under this Agreement or ( ii) to Losses for which this Agreement requires insurance coverage in an amount in excess of$ 15 million, to the extent of such insurance.
UNDER NO C/RCUMSTANCES SHALL VWWOS/ NDEMN/ F/ED PART/ES BE L/ABLE TO THE C/ TY
INDEMN/ F/ED PART/ ES FOR ANY/ NCIDENTAL, CONSEQUENT/ AL, SPEC/ AL, PUN/ T/ VE, OR
OTHER DAMAGES OTHER THAN ACTUAL D/RECT DAMAGES, REGARDLESS OF WHETHER
SUCH DAMAGES AR/ SE UNDER BREACH OF CONTRACT, TORT, STR/ CT L/ AB/ L/ TY, OR ANY OTHER THEORY OF LAW OR EQU/ TY. The foregoing limitation shall also apply to insurance required under this Agreement and shall preclude recovery therefrom for incidental, consequential, special, punitive or other damages as between the VWWOS Indemnified Parties and the City Indemnified Parties.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 12. 2 Duties to Insure and Indemnify Independent Except as expressly provided in Section 12. 1, procurement of insurance by VWWOS shall not be construed as a limitation of VWWOS liability or as full performance of VWWOS' S duties to indemnify, hold harmless and defend under this Agreement. VWWOS' S promises to insure and to defend, indemnify and hold harmless are intended to be wholly independent.
Section 12. 3 City Indemnity
City shall defend, indemnify and hold harmless the VWWOS Indemnified Parties from and against any Losses that arise out of, or result from, and are related to the breach of any representation made by the City in this Agreement; the negligent or willful acts or omissions by City, its agents, employees or contractors, except to the extent that such Losses arise from grossly negligent or willful acts or omissions of the VWWOS Indemnified Parties.
UNDER NO CIRCUMSTANCES SHALL THE City INDEMN/ F/ED PART/ES BE LIABLE TO THE
VWWOS/ NDEMNIF/ ED PART/ES FOR ANY/ NC/ DENTAL, CONSEQUENT/ AL, SPECIAL, PUN/ TIVE,
OR OTHER DAMAGES OTHER THANACTUAL D/ RECT DAMAGES, REGARDLESS OF WHETHER
SUCH DAMAGES ARISEUNDER BREACH OF CONTRACT, TORT, STR/CT LIAB/L/ TY, OR ANY OTHER THEORY OF LAW OR EQUITY.
Section 12. 4 Environmental Indemnity
Except to the extent such liability was caused by the negligence of the VWWOS Indemnified Parties, City shall defend, indemnify and hold harmless the VWWOS Indemnified Parties from and against any Losses arising out of or related to any Environmental Conditions on, in, under, across or at the Facility or the Site. To the extent such liability arising out of an Environmental Condition was caused by the negligence of a VWWOS Indemnified Party, VWWOS shall, to the extent of its negligence, indemnify the City Indemnified Parties from and against any Losses arising out of or related to Environmental Conditions on, in, under, across or at the Facility or the Site.
Section 12. 5 Procedures for Notice and Defense
The following procedures shall govern any claims for indemnification under this Agreement:
a) Notice. The party claiming a right to indemnification shall promptly give the indemnifying party written notice of any Losses or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. The notice shall describe with reasonable detail the nature of such Losses or claim to the extent known and shall include copies of any written documentation from the party asserting such claim.
b) Assumption of Defense. The indemnifying party shall have the right to assume the defense of any such claim with counsel reasonably acceptable to the other party. Upon assumption of such defense by the indemnifying party, the indemnified party may participate in the defense of such claim at the indemnified party' s sole expense.
c) Conduct of Defense. Upon assuming the defense of any claim covered by an indemnity, the indemnifying party shall keep the indemnified party reasonably informed of the status of such matter. The indemnifying party shall have the right to compromise and settle any such claim, providing that the indemnifying party shall make no admission of liability or fault on the part of the indemnified party without the indemnified party' s written permission.
Section 12. 6 Survival
The provisions of this Article 12 shall survive the expiration or termination of this Agreement.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Article 13. UNCONTROLLABLE CIRCUMSTANCES
Section 13. 1 Uncontrollable Circumstance
Neither party shall be liable to the other for breach, default or delay in performance of any of its obligations under this Agreement ( other than an obligation to make payment when due) in the event such party is rendered unable, wholly or in part, to carry out its obligations as the result of an Uncontrollable Circumstance. Such party shall be excused from performance only during the period and to the extent that the affected party, acting with all due diligence and dispatch is prevented from performing by the Uncontrollable Circumstance.
Section 13. 2 Obligations In Event of Uncontrollable Circumstance As a condition for being relieved of its obligations due to an Uncontrollable Circumstance, the party claiming excuse from such Uncontrollable Circumstance (" Excused Part') shall:
a) Promptly give written notice to the other party of the occurrence of such Uncontrollable Circumstance.
b) Use its reasonable efforts to eliminate or mitigate the effect of such Uncontrollable Circumstance.
c) Promptly give written notice to the other party when such Uncontrollable Circumstance has been eliminated or has ceased to prevent the Excused Party from fulfilling such obligations. d) Proceed to fulfill such obligations as soon as reasonably practicable after the Uncontrollable Circumstance has been eliminated or has ceased to prevent the Excused Party from fulfilling its obligations.
Section 13. 3 Amendment of Agreement for Uncontrollable Circumstance If any Uncontrollable Circumstance prevents the performance by VWWOS or City for more than ninety( 90) days, then the Parties shall negotiate in good faith to amend the provisions of this Agreement to address such Uncontrollable Circumstance and, failing such agreement, shall resort to the provisions of Article 15 to determine the necessary amendment( s) or whether a termination should occur because the Parties cannot accomplish the essential purposes of this Agreement on commercially reasonable terms and, if a termination occurs, the manner terms and conditions of such termination.
Article 14. DEFAULT AND REMEDIES
Section 14. 1 City Events of Default
The following occurrences or failures shall constitute events of default by the City( a" City Event of Default") under the terms of this Agreement:
a) City' s failure, neglect or refusal to pay any compensation or other undisputed payment due under this Agreement, which continues for fifteen ( 15) days after written notice to City. b) City' s unexcused failure to keep and perform any of City' s obligations or covenants under this Agreement or the breach of any warranty or representation by City under this Agreement, which failure or breach continues for forty- five ( 45) days after written notice thereof by VWWOS to City, unless the nature of the failure or breach is such that more than forty-five ( 45) days is required for its cure and City has commenced such cure within such 45- day period and thereafter diligently prosecutes the same to completion.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
c) City shall ( 1) make an assignment for the benefit of creditors; ( 2) file or acquiesce in a petition in any court (whether or not pursuant to any statute of the United States or of any state in bankruptcy, reorganization, composition, extension, arrangement or insolvency proceedings, or make an application in any such proceedings for, or acquiesce in, the appointment of a trustee or receiver for it or overall or any portion of its property; or( 3) be subject to any petition filed against City in any court ( whether or not pursuant to any statute of the United States or of any state) in any bankruptcy, reorganization, composition, extension, arrangement or insolvency proceedings where: ( x) City shall thereafter be adjudicated as bankrupt or insolvent, or( y) such petition shall be approved by any such court, or ( z) such proceedings shall not be dismissed, discontinued or vacated within thirty( 30) days after such petition is filed.
Section 14. 2 VWWOS Remedies for City Events of Default a) In the event of a City Event of Default under Section 14. 1( a) or Section 14. 1( c), VWWOS shall have the right to terminate this Agreement, sue for damages, seek specific performance and to pursue any other remedy at law or equity. If VWWOS terminates this Agreement, VWWOS shall reasonably cooperate with the City for a period of up to one hundred eighty( 180) days to attempt to avoid material adverse interruption of the operation of the Facility provided that VWWOS receives: ( i) payment of all undisputed amounts payable to VWWOS under this Agreement at the time of termination, including amounts that have accrued or been invoiced prior to the termination date; ( ii) any unpaid sums due with respect to any maintenance, repair or replacement items approved hereunder as of the termination date or for such other amounts as are due and payable under Article 7; ( iii) advance payment on a monthly basis of the Cost of the Work VWWOS reasonably expects to perform during such 180- day period, plus fifteen percent ( 15%), which sum shall in no event exceed one hundred fifteen percent ( 115%) of the Compensation; and ( iv) repayment of the outstanding balance of any repair, replacement or maintenance item funded by VWWOS and to be repaid by the City via the Compensation or otherwise over time, provided that the City agrees in writing to VWWOS' s funding of a repair, replacement or maintenance item prior to VWWOS' s providing that funding ( provided, however, that the City acknowledges and agrees that$ 52, 115 for certain safety equipment and start- up expenses has been funded by VWWOS and is being amortized monthly via the Service Fee on a straight- line basis during the Term). b) In the event of a City Event of Default under Section 14. 1( b), VWWOS shall have the right to sue for damages, seek specific performance and to pursue any other remedy at law or equity; provided, however, that VWWOS shall be obligated to continue performance of its obligations under this Agreement and may terminate this Agreement only in the event that such Event of Default causes VWWOS to ( i) incur material additional costs and expenses to perform the Services and such costs and expenses are not reimbursed within the time periods set forth in Section 14. 1( a); or( ii) undertake any action that violates Applicable Law or any Governmental Approval.
Section 14. 3 VWWOS Events of Default
An event of default by VWWOS (" VWWOS Event of Default") shall occur upon:
a) VWWOS' s unexcused failure to satisfy its Performance Guarantee; b) VWWOS' s unexcused failure to keep and perform any of VWWOS' s other obligations or covenants under this Agreement; or
c) a material breach of any other warranty or representation by VWWOS that materially adversely affects its ability to perform the Services;
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERAT NG SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
which failure or breach continues for forty-five days ( 45) ( or for a breach of the Performance Guarantee under subparagraph ( a) above, fifteen ( 15) Business Days) after written notice thereof by City to VWWOS, unless the nature of the failure or breach is such that more time is required for its cure and VWWOS has commenced such cure within such 45- or15- business- day- period and thereafter diligently prosecutes the same to completion.
Section 14. 4 City Remedies for VWWOS Event of Default
In the event of a VWWOS Event of Default:
a) Termination. City may terminate this Agreement upon written notice to VWWOS in which event the remaining provisions of this Section shall be applicable. b) Performance Bond. VWWOS shall forfeit the full face value of the payment of the performance bond provided by VWWOS pursuant to this Agreement. The Parties agree and acknowledge that the amount of the actual damage incurred by City as a result of such VWWOS event of default would be extremely difficult and impracticable to determine; and that the proceeds of the payment and performance bond shall be in the nature of liquidated damages, and that the amount so collected from the payment and performance bonds represent the Parties' reasonable estimate of such damages.
c) Cooperation. VWWOS shall reasonably cooperate, at City expense with the City for period of one hundred eighty ( 180) days to attempt to avoid material adverse interruption of the operation of the Facility. VWWOS shall be entitled to payment of those costs and expenses which it actually and reasonably incurs in such event.
d) Accrued and Unpaid Compensation. On or before the effective date of the termination of this Agreement, City shall pay VWWOS ( i) all undisputed amounts payable to VWWOS under this Agreement as of the time of termination, including amounts which have accrued or been invoiced prior to the termination date; and ( ii) the outstanding balance of any repair, replacement or maintenance item funded by VWWOS and to be repaid by the City via the Compensation or otherwise over time, provided that the City agrees in writing to VWWOS' s funding of a repair, replacement or maintenance item prior to VWWOS' s providing that funding ( provided, however, that the City acknowledges and agrees that$ 52, 115 for certain safety equipment and start- up expenses has been funded by VWWOS and is being amortized monthly via the Service Fee on a straight- line basis during the Term).
e) Transfer of Facilities. Upon termination and payment of the amounts described in subparagraph ( d) above, VWWOS shall quitclaim to City all of its rights and interests to the Facility and VWWOS shall transfer to City the full possession control use and occupancy of the Facility and the Site.
f) Proprietary Components and Products. VWWOS agrees to supply to City, at VWWOS' s standard list price, any proprietary components or products necessary for the completion and continuing operation and maintenance of the Facility subject to the continued availability of such components and products. In the event that VWWOS no longer produces any proprietary component or product, and if an alternative component or product having the same function and use which are compatible with the Facility are not obtainable by the City at reasonable cost, VWWOS agrees to provide City with specifications and shop drawings for such proprietary component or product to permit City to fabricate or procure such component or product. City shall pay VWWOS for all costs and expenses reasonably incurred in providing such specifications and shop drawings. g) Intellectual Property. VWWOS shall assign or grant to City a non- exclusive and irrevocable license with respect to all Intellectual Property required to maintain and operate the Facility.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Such license shall be transferable to any person engaged in maintenance and operation of the Facility, but such license shall allow use of such Intellectual Property only with respect to the Facility; and no such Intellectual Property shall be used for any other purpose. City shall not be required to make any royalty payments for such license. All Intellectual Property provided by VWWOS to City shall be treated as Confidential Information subject to the provisions of this Agreement, and City shall be responsible for the compliance with the terms and conditions of such license by any person or entity to whom or which the City transfers that Intellectual Property. h) Labor and Other Contracts. To the extent assignable and transferable, and if deemed by City to be to the benefit of the City or any subsequent operator of the Facility, VWWOS shall assign and transfer to City any labor, maintenance, or supply contracts relating to the Facility that have been entered into by VWWOS. Upon such assignment, City shall assume all of VWWOS' s obligations arising on and after the date of such assignment under any such assigned contracts and VWWOS shall have no further obligations therefor.
i) Damages. In lieu of termination and the recovery of liquidated damages as provided in this Section and subject to the limitations set forth in Section 12. 1, City shall have the right to seek recovery of the actual and direct damages incurred by City as the result of such Event of Default.
UNDER NO CIRCUMSTANCES SHALL VWWOS BE LIABLE FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES OTHER THAN ACTUAL DIRECT
DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER BREACH OF CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LAW OR EQUITY. The foregoing limitation shall also apply to insurance required under this Agreement and shall preclude recovery therefrom for incidental, consequential, special, punitive or other damages as between VWWOS Indemnified Parties and the City Indemnified Parties Section 14. 5 Effect of Termination
The termination of this Agreement as the result of a City Event of Default or VWWOS Event of Default shall not abrogate, impair, release or extinguish, any obligations or liability of the defaulting party that may have accrued under this Agreement, prior to the date of termination, or which, by express provision hereof survive termination, including any debt, obligation or liability which resulted in the City Event of Default or VWWOS Event of Default that was the cause of termination.
Section 14. 6 Remedies Cumulative
Except as otherwise provided in this Article, the remedies granted to VWWOS and City under this Article shall be cumulative, and action or inaction on one shall not be deemed to constitute an election or waiver of any other right or remedy to which a party may be entitled as to that or any other Event of Default.
Section 14. 7 Remedy for Breach of Performance Guarantee In addition to the City' s rights under Section 14. 4, an unexcused breach by VWWOS of its Performance Guarantee shall require VWWOS to pay any fines and penalties imposed by a Governmental Agency( other than the City) arising out of such breach; provided, however, that VWWOS shall be entitled to contest such fines and penalties before such Governmental Agency in accordance with Applicable Law and City shall take no action to prejudice VWWOS' s contest rights.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Article 15. DISPUTE RESOLUTION
Section 15. 1 Dispute Resolution Process
Any claim controversy or dispute arising out of or relating to this Agreement, or to the threatened, alleged or actual breach thereof by either party, shall be resolved exclusively as hereinafter set forth to the extent permitted by California Government Code, Section 5956. 6.
Section 15. 2 Invocation
The resolution procedures shall be invoked when either party sends a written notice to the other party of the occurrence of a claim, controversy or dispute, or of the threatened, alleged or actual breach of this Agreement. The notice shall describe the nature of the dispute and the party position with respect to such dispute.
Section 15. 3 Technical Representatives
The Parties shall expeditiously conduct consultations or a meeting between technical representatives designated by each party in an effort to resolve the dispute informally.
Section 15. 4 Reference to Management Representatives
If the technical representatives appointed by each party are unable to resolve the dispute within fifteen ( 15) days, the dispute shall be submitted in writing to management representatives designated by each party. The designated representative of VWWOS shall be at least a Vice President or his or her designee; and the designated representative of City shall be the City Manager or his or her designee. The designated management representatives shall attempt to resolve such dispute through consultation and negotiation, within thirty( 30) days after such submittal ( or such longer period as mutually agreed by the Parties). The management representatives may request the assistance of an independent mediator if they believe that such a mediator would be of assistance to the efficient resolution of the dispute.
Section 15. 5 Binding Arbitration
If the management representatives cannot resolve the dispute as set forth herein, the matter shall be resolved in accordance with the following arbitration procedures unless otherwise required by Government Code Section 5956. 6( b).
Section 15. 6 Arbitration Notice
Upon the occurrence of a dispute, and failure of the Parties to resolve such dispute through the informal processes, either party may initiate the arbitration process by giving written notice to the other party( the" Arbitration Notice").
Section 15. 7 Appointment of Arbitrators
Within thirty( 30) days of the Arbitration Notice, the Parties shall either agree upon the appointment of a single, mutually- approved arbitrator, or if the Parties are unable to agree upon a single arbitrator, each of the Parties shall designate an arbitrator, and the arbitrators so designated by VWWOS and City shall within fifteen ( 15) additional days, agree upon a third, independent arbitrator. If the arbitrators are unable to agree upon a third arbitrator, the City or VWWOS may petition a court of competent jurisdiction to select such third arbitrator. The Parties shall cooperate to retain the arbitrator( s) upon terms and conditions mutually satisfactory to the Parties as soon as practicable after selection of the arbitrator( s). Each arbitrator shall be a lawyer licensed to practice law in the State of California with at least five ( 5) year' s experience in law applicable to municipal utilities.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 15. 8 Fees
Unless otherwise ordered under Section 15. 10, the fees of the arbitrator shall be paid in equal shares by VWWOS and City.
Section 15. 9 Discovery
For a period of thirty( 30) days following the appointment of the arbitrator( s) ( or such longer period as the Parties may mutually agree or the arbitrator( s) may direct), the Parties shall have the right to engage in such discovery relevant to the matters in dispute as is allowed pursuant to State law.
Section 15. 10 Arbitration Rules
The arbitrators shall decide such disputes pursuant to the American Arbitration Association commercial arbitration rules in force at the time of the arbitration. The arbitrator( s) shall be required to make a final determination, not subject to appeal, within thirty( 30) days from the receipt of such dispute by the arbitrator( s), and the Parties shall be bound by the terms of such final determination. The determination by the arbitrator( s) shall be made in writing and shall contain written findings of fact, and may be specifically enforced by a court of competent jurisdiction. The arbitrator( s) shall determine a fair and equitable allocation of the reasonable expenses of the Parties incurred in connection with the resolution of any dispute hereunder. Each party shall bear its own attorneys' fees and expenses, unless the arbitrators( s) shall determine that the action or defense of the losing party was frivolous, in which event the arbitrator( s) shall determine a fair and equitable attorneys' fees and expenses to be paid by the losing party to the prevailing party which shall not exceed the fees and expenses actually incurred by the prevailing party with respect to the dispute.
Section 15. 11 Independence
The arbitrator( s) shall retain independence of all Parties to this Agreement, and neither party shall engage or attempt to engage the services of the arbitrators for any other purposes without prior written notice to the other party.
Article 16. ASSIGNMENT AND DELEGATION
Section 16. 1 City Assignment
City shall not assign this Agreement or transfer sell or convey any portion of the Facility or the Site without the consent of VWWOS, which consent shall not be unreasonably withheld; and no such assignment shall relieve the City of its obligations hereunder.
Section 16. 2 VWWOS Assignment
VWWOS shall have the right to assign this Agreement, without City' s consent, ( i) to an Affiliate that has the technical and financial ability to perform VWWOS' s obligations hereunder; or( ii) in conjunction with a merger, consolidation or sale of substantially all of the assets of VWWOS. VWWOS shall provide prior written notice to City of any such transfer along with evidence of the technical and financial ability of the transferee. VWWOS may also collaterally or assign this Agreement and/ or its right to any payments hereunder, but not its obligations to perform services hereunder, to one or more lenders providing financing to VWWOS or any Affiliate. Any other transfer of VWWOS' s right title and interest in this Agreement shall be null and void unless authorized by the City in writing in advance which authorization may be granted or withheld in the City' s absolute discretion. No such assignment, however, shall alter an assignee' s obligations hereunder to accomplish the Performance Guarantee to perform hereunder for the compensation provided hereby, or otherwise to perform as VWWOS would be required to perform in the absence of the Assignment.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 16. 3 Notice of Assignment
In the event of any such assignment permitted by this Article the assignor shall give prompt written notice to the other party.
Article 17. ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS Section 17. 1 Notices
All notices required or desired to be given hereunder to either party shall be effective if given by personal delivery, certified or registered mail, postage prepaid, return receipt requested, by nationally recognized overnight delivery company, or by telecopy ( with telephone confirmation of receipt), if addressed or the following addresses or telecopy numbers:
If to VWWOS:
Veolia Water West Operating Services, Inc.
4160 Temescal Canyon Road, Suite 311
Corona, CA 92883
Attn: President, West Region Email: larry. cook@veolia. com With copies to:
Veolia Water West Operating Services, Inc.
53 State Street, 14th Floor
Boston, MA 02109
Attn: General Counsel
Email: general. counselNA@veolia. com
If to City:
City of Lathrop
City Clerk
390 Towne Centre Drive
Lathrop, CA 95330
With copies to:
City of Lathrop
Department of Public Works
390 Towne Centre Drive
Lathrop, CA 95330
City of Lathrop
City Attorney
390 Towne Centre Drive
Lathrop, CA 95330
Any party may change its address for the purpose of this Section by giving written notice of such change in the manner required by this Section. Notices delivered personally or by telecopy with telephone confirmation of receipt shall be deemed given as of actual receipt. Mailed notices shall be deemed given as of three ( 3) days after mailing. Notices given by overnight delivery company shall be deemed given as of the date and time of delivery indicated on the delivery company' s receipt.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 17. 2 Compliance with Laws and Regulations
In performing all of their respective obligations under this Agreement, VWWOS and City shall at all times comply with all Applicable Laws including the requirements of Labor Code Section 1720 et seq. as made applicable by Government Code Section 5956. 8.
Section 17. 3 Non- Discrimination in Employment
a) Non- Discrimination Obligation. VWWOS shall comply with all Applicable Laws which prohibit discrimination against any applicant for employment or employees and will take affirmative action to ensure compliance. Such affirmative action shall apply to, but not be limited to, recruitment and recruitment advertising; hiring; promotion; upgrading; transfer; selection for training, including apprenticeship; demotion; layoff; and termination. As required by Applicable Law, VWWOS will post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.
b) Advertisements. As required by Applicable Law, VWWOS shall state in all solicitations or advertisements for employees placed by or on behalf of VWWOS that all qualified applicants will receive consideration for employment in accordance with all laws and regulations which prohibit discrimination and without regard to factors such as age, race, color, religion, sex, sexual orientation, national origin, or disabilities.
Section 17. 4 Further Assurances
City and VWWOS each agree to execute and deliver any instruments and to perform any acts that may be necessary or reasonably requested in order to give full effect to the provisions of this Agreement.
Section 17. 5 Governing Law
The Parties agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the Parties, and shall also govern the interpretation of this Agreement. Venue for any action to enforce the provisions of this Agreement shall lie in San Joaquin County, California.
Section 17. 6 Partial Invalidity; Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in fu l force without being impaired or invalidated in any way and to that end the provisions hereof are severable.
Section 17. 7 Waiver
The failure of either party to enforce any right under this Agreement shall not be construed as a waiver of its right to enforce that or any other right hereunder in the future.
Section 17. 8 Entire Agreement
This Agreement, including the Exhibits hereto, supersedes any and all other agreements, whether oral or in writing, between the Parties hereto, and contains all of the covenants and agreements between the Parties regarding the subject matter of this Agreement. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any party or anyone acting on behalf of any party that are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Specifically, VWWOS and City agree that this Agreement supersedes that certain " Wastewater Plant Operation and Maintenance Agreement Between US Filter Operating Services Inc. and the City of Lathrop, California" dated for convenience April 29, 2003, and amendments, which shall be of no further force and effect as of the Effective Date of this Agreement.
Section 17. 9 Modification and Amendment
Neither this Agreement nor any of the terms hereof may be terminated, amended, modified, waived or supplemented orally, but only by an instrument in writing executed by both Parties.
Section 17. 10 Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
Section 17. 11 Execution in Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall be deemed to be one and the same instrument.
Section 17. 12 Joint Drafting
The document embodying this Agreement is the product of the joint efforts of the Parties and is not drafted solely by any of them. Any ambiguity created herein shall not be construed against any party as drafter of the document.
Section 17. 13 No Third- Party Beneficiaries
This Agreement shall not confer any rights or remedies upon any person other than the Parties hereto and their respective successors and permitted assigns. VWWOS shall have no liability or obligations to those property owners and developers under this Agreement or otherwise with respect to the Facility or its operation and maintenance.
Section 17. 14 Assistance of Counsel
Each party to this Agreement warrants to each other that it had the assistance of counsel or had counsel available to it, in the negotiation for, and execution of this Agreement.
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT BETWEEN VEOLIA WATER WEST OPERATING SERVICES, INC. AND CITY OF LATHROP, CALIFORNIA IN WITNESS WHEREOF the Parties have hereunto entered into and executed this Agreement, by their duly authorized representatives, as of the date first above written.
VEOLIA WATER WEST OPERATING SERVICES, CITY OF LATHROP, a municipal INC., a Delaware corporation corporation
By: By:
Name: Stephen J. Salvatore
Title: City Manager
ATTEST:
By:
Name:
Title:
By:
Teresa Vargas
City Clerk
APPROVED AS TO FORM:
By:
Salvador Navarrete
City Attorney
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit A: Definitions
Abnormal Substances" means substances or materials that are not identified in the Influent Specifications or were not reasonably anticipated as being in the Influent by an operator of the Facility.
Affiliate" means any corporation, limited liability company, partnership or other entity which directly or indirectly controls, is controlled by, or is under common control with VWWOS.
Aqreement" means the" Wastewater Plant Operation and Maintenance Agreement between Veolia Water West Operating Services, Inc. and City of Lathrop, California." Applicable Law" means any law, rule, code, regulation, consent decree, consent order, consent agreement, permit, determination, judgment or order of, or Governmental Approval issued by, any Governmental Agency having jurisdiction applicable to any activities associated with the operation, maintenance, repair, replacement, or modification of any part of the Facility or associated with any other obligations of the parties under this Agreement.
Arbitration Notice" has the meaning set forth in Section 15. 6 of this Agreement.
Billinq Statement" has the meaning set forth in Section 7. 2 of this Agreement.
Biosolids" means sewage sludge generated at the Facility.
Business Dav" means any day other than a Saturday, Sunday or a day on which the City of Lathrop or commercial banking institutions are authorized or required by law, regulation, or executive order to be closed in the State.
Capital Proiect" means a permanent physical expansion or improvement to the Facility, including but not limited to the procurement and installation of additional equipment and facilities, or the replacement of existing equipment or facilities with new or improved equipment or facilities.
Capital Proiect Adiustment" has the meaning set forth in Section 4. 27( b)( iii) 3) of this Agreement.
Capital Proiect Contractor" has the meaning set forth in Section 4. 27( b)( iii) of this Agreement.
Chanqe in Law" means any of the following events occurring after the Contract Date:
1. Adoption, modification or repeal, or official change in interpretation, of any Applicable Law, including the NPDES Permit or WDRs; or
2. the modification or imposition of any material conditions, restrictions or limitations in any Governmental Approval, which imposes limitations, additional costs or burdens with respect to the operation, repair, maintenance and replacement of the Facility or the Parties' other obligations under this Agreement.
C" means the City of Lathrop, California.
City Emplovees and Aqents" has the meaning set forth in Section 9. 4 of this Agreement.
Citv Event of Default" has the meaning given in Section 14. 1 of this Agreement.
Citv Fiscal Year" means the period from July 1 of one calendar year to June 30 of the next.
Page A- 1
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Citv Indemnified Partv" means any, some, or all of the City and their respective officers, agents and employees.
CIWQS" means the California lntegrated Water Quality System, the online portal for submittal of NPDES Permit- required reports.
Compensation" means the compensation payable to VWWOS under Article 7 of this Agreement.
Confidential Information" has the meaning set forth in Section 9. 2 of this Agreement.
Contract Date" means the date stated in the first sentence of this Agreement in which the phrase is used.
Corrective Maintenance and Repairs" means those non- routine, non- repetitive activities required for operational continuity, safety, and performance, reasonably necessary to respond to or avert failure of the Facility, equipment installed at the Facility, or any component thereof.
Cost of the Work" means costs reasonably incurred in the proper performance of services with respect to repair, maintenance, or replacement item under this Agreement (" the Work"). Such costs shall include the items set forth below:
1. Cost of all rented and purchased materials, supplies and equipment used in conjunction with or incorporated in the Work, including the costs of transportation thereof;
2. Payments made by VWWOS to subcontractors or employees on Site or suppliers for portions of the Work performed pursuant to subcontracts or at the direction of VWWOS;
3. Sales, use or similar taxes related to the Work and for which VWWOS is liable under this Agreement;
4. Rental costs of machinery and equipment;
5. Costs of labor for VWWOS and its subcontractors and any other party performing Work at the direction of VWWOS or its subcontractors as set forth in this Agreement;
6. Costs of any fees associated with Governmental Approvals with respect to the work incurred by or on behalf of VWWOS and its subcontractors and suppliers; and
7. Costs incurred in the performance of the Work if and to the extent approved in accordance in writing by City as provided in Section 4. 8 and Section 4. 9 of this Agreement.
Cost of the Work shall not include any of the following:
i) Salaries or other compensation of VWWOS' s personnel at VWWOS principal office and branch offices to the extent those personnel are not set forth on Exhibit L to this Agreement or whose services do not constitute the performance of the Work ( it being the intent of the Parties that those individuals described on Exhibit L to this Agreement shall be included in the Cost of the Work for time spent in conjunction with the Work);
ii) General office expenses of VWWOS' s principal and branch offices that would not have been incurred but for the performance of the Work;
iii) Overhead or general expenses of any kind;
Page A- 2
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
iv) Costs associated with, in any way, either directly or indirectly, the negligence of any VWWOS Indemnified Party, including the correction of non- conforming materials and equipment negligently supplied, or repairing any damage to person or property; and v) Costs incurred as part of VWWOS' s warranty obligations.
Effective Date" means the date set forth in the preamble.
Effluent" means any water discharged from the Facility at the Points of Effluent Delivery as a result of treatment of Influent.
Effluent Specifications" means the Effluent specifications in Exhibit C- 1 and Exhibit C- 2 of this Agreement, as applicable.
Emerqencv Preparedness Plan" shall mean the plan required by Section 4. 13.
Environmental Condition" means the presence of any Regulated Substance on or at the Site, including, but not limited to, the presence in surface water, groundwater, soils or subsurface strata or the migration of such a Regulated Substance from or to the Facility.
Environmental Law" means any Applicable Law relating to ( i) the protection of public health, safety, natural resources or the environment; ( ii) the manufacturing, handling, generation, storage, treatment, processing, transportation, release, discharge, emission or disposal of Regulated Substances; ( iii) Environmental Conditions; or( iv) the protection of human health and safety.
Environmental Laws include, without limitation, the Comprehensive Environmental Response Compensation and Liability Act ( 42 U. S. C. § 9601 et seq.), the Hazardous Materials Transportation Act ( 49 U. S. C. § 1801 et seq.), the Resource Conservation and Recovery Act ( 42 U. S. C. § 6901 et seq.), the Federal Water Pollution Control Act ( 33 U. S. C. § 1251 et seq.), the Clean Air Act ( 42 U. S. C. § 7401 et seq.), the Toxic Substances Control Act ( 15 U. S. C. § 2601 et seq.), the Oil Pollution Act ( 33 U. S. C. § 2701 et seq.), the Emergency Planning and Community Right-to- Know Act ( 42 U. S. C. § 11001 et seq.), the Occupational Safety and Health Act ( 29 U. S. C. § 651 et seq.), the Safe Drinking Water Act ( 42 U. S. C. § 300f et seq.); and regulations adopted pursuant thereto; and counterpart state and local laws, and regulations adopted thereto, as they exist on the Contract Date or are thereafter amended.
Excused Partv" has the meaning set forth in Section 13. 2 of this Agreement.
Exit Evaluation" has the meaning set forth in Section 8. 2 of this Agreement.
Exit Performance Test" has the meaning set forth in Section 8.2 of this Agreement.
Facilitv" means the City of Lathrop Consolidated Treatment Facility as represented by the process flow diagram and site plan in Exhibit I.
Facilitv Capacitv" means hydraulic and treatment capacity of the Facility.
Fee- Covered Expenses" shall have the meaning set forth in Section 6. 1( a) of this Agreement.
Governmental Aqencv" means any legislative executive judicial or administrative department board commission court agency or other instrumentality of the federal, State or local government.
Governmental Approval" means any permit, license, approval, authorization, consent or other authorization which is required under Applicable Law for the operation and maintenance of the Facility or for the performance of any of the obligations under this Agreement.
Page A- 3
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Influent" means the untreated wastewater from the Service Area that enters the Facility at the Points of Influent Delivery.
Influent Specifications" means the Influent Specifications as set forth in Exhibit B of this Agreement.
Intellectual Propertv" means any patents, copyrights, trade, secrets, icensed software, proprietary technology or systems, or other intellectual property.
Kev Personnel" means any officer or supervisory employee of VWWOS who will have any role in the performance of VWWOS' s obligations under this Agreement.
Laboratory QA/ QC Proqram" means a quality assurance/ quality control program for sampling and analyses, meeting the standards set forth in Exhibit F of this Agreement.
Lien" means mechanic' s lien or materialman' s lien, mortgage, pledge, security interest, lien, encumbrance, lease, disposition of title or other charge of any kind.
Losses" means any losses, claims, suits, actions, demands, charges, expenses, costs ( including costs of defense, settlement and reasonable and actual attorney' s fees and costs), liabilities, obligations, fines and penalties.
Material Adverse Effect" means ( i) a material adverse effect upon the properties, assets, credit rating, or financial condition of the City, taken as a whole; ( ii) a material adverse effect on the ability of City to perform its obligations set forth in this Agreement; or (iii) any material event or circumstance which calls into question or threatens the validity or enforceability of this Agreement by VWWOS against City.
Monitorinq EquipmenY' means the equipment to maintain and operate the Facility as described in Section 4. 4 of this Agreement.
Monitorinq Requirements" means the sampling, testing and analysis requirements for Influent and Effluent as described in Exhibits D of this Agreement.
Non-Specification Influent" has the meaning set forth in Section 4. 3 of this Agreement.
NPDES Permit" means National Pollutant Discharge Elimination System ( NPDES) Permit No.
CA0085359, Order R5- 2022- 0004, Waste Discharge Requirements for the City of Lathrop, Consolidated Treatment Facility, San Joaquin County, adopted by the Central Valley Regional Water Quality Control Board adopted on February 17, 2022, and any amendments thereto, and any successor permits.
OSHA Compliance Proqram" means the program required by Section 4. 15 of this Agreement.
Parties" means Veolia Water West Operating Services, Inc., a Delaware corporation, and the City of Lathrop, California, a municipal corporation.
Performance Guarantee" has the meaning set forth in Section 4.2 of this Agreement.
Points of Effluent Deliverv" has the meaning set forth in Exhibit L.
Points Influent Deliverv" has the meaning set forth in Exhibit L.
Premium" means the cost of insurance provided by VWWOS as described in Section 11. 1( e)( 3) of this Agreement.
Page A- 4
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Preventive and Predictive Maintenance" means routine or repetitive activities required by the equipment or Facility manufacturer or VWWOS consistently with Prudent Industry Practices to maintain the reasonably expected service life of the Facility and equipment and other components thereof.
Prime Rate" means Prime Rate published from time-to-time by the Bank of America NT& SA ( or such other lending institution acceptable to VWWOS and the City) for short- term loans to industrial borrowers having the highest credit rating.
Prudent Industry Practices" means those methods, techniques, standards and practices which, at the time they are employed and in light of the circumstances known or believed to exist at the time, are generally accepted as reasonably prudent in the municipal wastewater treatment industry as practiced in the United States.
Requlated Substance" means any pollutant, contaminant, hazardous, substance, hazardous material, toxic substance, toxic pollutant, solid waste, municipal waste, industrial waste, or hazardous waste, petroleum or petroleum- derived substance, asbestos, or polychlorinated biphenyls, that is defined as such in, is subject to regulation under, or may form the basis for any requirement for investigation or remediation under any Environmental Law.
Release" means any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching, or migration of any Regulated Substance into the environment ( including ambient air, surface or ground water, and surface or subsurface strata), including the movement of any Regulated Substance in or through the air, soil, surface water, or groundwater or property.
Replacement Cap" has the meaning set forth in Section 4. 8 of this Agreement.
Responsible Officer" means the City Manager of Lathrop or his or her designee.
Services" means the services that VWWOS is to provide pursuant to this Agreement.
Service Area" means the area served by the sewage collection system delivering Influent to the Facility.
Service Fee" has the meaning set forth in Section 7. 1 of this Agreement.
Site" means the real property on which the Facility is located.
Site License" has the meaning set forth in Section 5. 2 of this Agreement.
State" means the State of California and its departments, boards, commissions and agencies.
Term" has the meaning set forth in Section 2. 1 of this Agreement.
Uncontrollable Circumstances" means any act, event, or condition beyond the reasonable control of a party( or the party' s employees, agents or subcontractors) which materially affects the ability of that party to perform any obligation under this Agreement ( except an obligation to make payment when due), including a Change of Law, strikes, lockouts or other labor disturbances, earthquake, flood, hurricanes, or other natural disaster, acts of God, war ( whether or not war has been declared), terrorism ( including unexpected delays arising from security measures relating to terrorism or the threat of terrorism), civil insurrection, quarantine, radiation or radioactive contamination, or other circumstances beyond a party' s reasonable control. " Uncontrollable Circumstances" also include the following acts, events or conditions, to the extent they meet the Page A- 5
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
standards set forth immediately above delimiting acts, events or conditions which constitute Uncontrollable Circumstances."
i) the suspension, termination, interruption, denial, failure to issue, delay in issuance, modification or failure of renewal of any Governmental Approval necessary to the operation and maintenance of the Facility; and
ii) such other items as are expressly specified in this Agreement as being " Uncontrollable Circumstances."
Uncontrollable Circumstances" also includes:
a) Violations of the City' s Industrial Pretreatment Program discharge limits which are of such a quantity and quality so as to cause substantial disruption in the operations or biologicai activity of the Facility.
b) Receipt of Non- Specification Influent at the Facility which is of such a quantity and quality so as to cause substantial disruption in the operations or biological activity of the Facility.
User Fees" has the meaning set forth in Section 6. 1 of this Agreement.
VWWOS" Veolia Water West Operating Services, Inc.
VWWOS Event of Default" has the meaning set forth in Section 14. 3 of this Agreement.
VWWOS Indemnified Partv" means any, some or all of VWWOS, its parent, affiliates, subcontractors, and their respective officers, employees and agents.
WDRs" means Order R5- 2016-0028- 01, Waste Discharge Requirements and Master Recycling Permit for City of Lathrop, Lathrop Consolidated Treatment Facility, San Joaquin County, adopted by the Central Valley Regional Water uality Control Board adopted on April 21, 2016, amended on April 6, 2018, and any amendments thereto, and any successor permits.
WDRs Monitorinq and Reportinq Proqram" means Revised Monitoring and Reporting Program R5- 2016- 0028- 03 REV3 for City of Lathrop, Lathrop Consolidated Treatment Facility, San Joaquin County, issued by the Central Valley Regional Water Quality Control Board Executive Officer on May 3, 2021, and any amendments thereto.
Page A- 6
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit B: Influent Specifications
The following specifications apply to samples taken at the Facility' s influent piping manifold:
Parameter Unit 2. 5 MGD Capacity ADWF
BOD @ ADWF Lbs/ day 8, 757
BOD @ PDF Lbs/ day 14, 011
TSS @ ADWF Lbs/ day 7, 089
TSS @ PDF Lbs/ day 11, 342
TKN @ ADW F Lbs/ day 1, 251
TKN @ PDF Lbs/ day 2, 002
Page B- 1
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit C- 1: Effluent Specifications for Surface Water Discharge VWWOS shall operate the Facility such that Effluent for surface water discharge meets the following requirements at the locations described below:
1. Limits in the following table at the effluent composite sampler Parameter Units Average Monthly Average Weekly Maximum Daily Biochemical Oxygen Milligrams per 10 15
Demand ( BOD) 5- Liter( mg/ L)
day@20° Celcius
Total Suspended Solids mg/ L 10 15
TSS)
Ammonia ( Total as mg/ L 1. 1 2. 5
Nitrogen)
Nitrate plus Nitrogen mg/ L 10 22
Total as Nitrogen)
Dibromochloromethane µg/ L 15 27
DBCM)
Dichlorobromomethane µg/ L 36 71
DCBM)
Bromoform µg/ L 17 34
Chloroform µg/ L 130 260
2. pH at the effluent pH analyzer:
6. 5 Standard Units ( SU) as an instantaneous minimum
8. 5 SU as an instantaneous maximum
3. Percent Removal: the average monthly percent removal of 5- day biochemical oxygen demand ( BODs) and total suspended solids ( TSS) shall not be less than 85% at the effluent composite sampler.
4. '` Total Residual Chlorine. Effluent total residual chlorine shall not exceed at the applicable dechlorination analyzer:
i. 0. 011 mg/ I as a 4 day average and
ii. 0. 019mg/ I as a 1 hour average
Page C- 1
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
5. '` Total Coliform Organisms. Effluent Total coliform organisms shall not exceed the following with compliance measured after disinfection at the coliform sample port:
i. 2. 2 most probable number per 100 milliliters ( MPN/ 100mL), as a 7- day median ii. 23 MPN/ 100mL, more than once in a 30- day period; and iii. 240 MPN/ 100mL, at any time.
6. Filter Effluent, measured downstream of the confluence point of the three filters but prior to chlorination, does not exceed the following:
i. 0. 2 NTU more than 5 percent of the time within a 24- hour period; ii. 0. 5 NTU at any time
Notwithstanding the foregoing, items marked with an asterisk (*) shall not take effect until the dechlorination facility passes the acceptance testing, as set forth in Exhibit M.
For surface water discharge, Veolia will use Prudent Industry Practices to minimize the quantity of chlorine used to meet the requirements of this Exhibit C- 1 above, given the capabilities of the Facility and the treatment process; provided that Veolia will prioritize meeting the above requirements over minimization of chlorine.
Page C- 2
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLtA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit C- 2: Effluent Specifications for Land Discharge VWWOS shall operate the Facility to produce Effluent for land discharge that meets the following requirements at the locations described below:
1. Limits in the following table at the effluent composite sampler.
Constituent Limit Basis of Compliance
Determination
BOD5 10 mg/ L Monthly average
Total dissolved solids 950 mg/ L Flow- weighted annual average Total nitrogen 10 mg/ L Flow- weighted annual average
2. Filter Effluent turbidity, measured downstream of the confluence point of the three filters but prior to chlorination, does not exceed the following:
i. 0. 2 NTU more than 5 percent of the time within a 24- hour period; ii. 0. 5 NTU at any time
3. Prior to discharge to the recycled water storage ponds, disinfected effluent shall not exceed the following limits for total coliform organisms, measured at the coliform sample port:
a. The 7- day median concentration of total coliform bacteria measured in the disinfected effluent shall not exceed a most probable number MPN of 2. 2per 100 milliliters.
Compliance with this requirement will be determined using the median result of the seven most recent sampling events.
b. The number of total coliform bacteria shall not exceed an MPN of 23 per 100 milliliters in more than one sample in any 30 day period
c. The number of total coliform bacteria shall not exceed MPN of 240 per 100 milliliters at any time
d. The free chlorine residual contact time ( CT) shall not be less than 60- mg- min/ L and a minimum free chlorine model contact time of 32 minutes shall be maintained at all times.
CT is a product of free chlorine residual concentration in mg/ L and the free chlorine modal contact time in minutes
Wastewater measured at the effluent composite sampler shall not have a pH less than 6. 0 or greater than 9.
Page C- 3
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit D Monitoring Requirements
VWWOS shall monitor the operation of the Facility and shall measure and analyze the chemical content, physical properties, volume and flow rate of Influent entering the Facility and Effluent discharged from the Facility, and the Biosolids to reasonably demonstrate whether Influent meets the requirements of Exhibit B and whether Effluent is in compliance with the requirements of Exhibit C- 1 and Exhibit C- 2.
Page D- 1
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit E: Monitoring Equipment
Required monitoring equipment shall be provided consistent with Prudent Industry Practices and, at a minimum, include the items below:
Influent and Effluent composite samplers.
Sample collection tubing and bottles.
Hand- held field meters for measuring dissolved oxygen, electrical conductivity, temperature and pH for NPDES Permit MRP sampling that utilizes a U. S. Environmental Protection Agencyapproved algorithm/ method, calibrated and maintained in accordance with the manufacturer' s instructions. A calibration and maintenance log for each meter shall be maintained at the Facility.
Sample collection equipment and supplies, such as protective gloves.
Page E- 1
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit F: Standards for Quality Assurance and Quality Control Program VWWOS maintains a written Quality Control and Quality Assurance ( QA/ QC) Program in accordance with Prudent Industry Practices, which will be updated as reasonably required to ensure the integrity of the sampling testing and process procedures.
Page F- 1
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit G: Computerized Maintenance Management System
VWWOS shall maintain an electronic Computer Maintenance Management System ( CMMS) to generate work orders and maintain records on the Facility. Preventive maintenance work orders shall be generated by the CMMS system based on manufacturers' recommendations and as modified by VWWOS after consultation with City to reflect VWWOS' s operating experience. Work order maintenance records shall document the labor hours, cost, and cost of materials used. Monthly and annual work order summaries shall be reported to City. VWWOS shall conduct all activities to maintain and enforce new and existing equipment warranties and guarantees.
VWWOS shall use the CMMS to maintain asset inventory information. The CMMS or separate software shall be used to maintain a system of inventory control. The following information shall be maintained in the CMMS:
Inventory identification and description
Location identification
Manufacturer, make, model and numerical id
Unit and unit cost
Supplier and manufacturer contact information
Spare parts list
Preventive maintenance requirements
VWWOS shall use the CMMS to ( i) maintain information in compliance with Rule 34 of the General Accounting Standards Board, ( ii) update that information not less than annually in conjunction with City' s financial audit of all City financial activity, and ( iii) provide an annual report to the City in time for its use by City auditors with respect to that audit.
Page G- 1
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit H: Corrective Maintenance and Repair Monthly Report On a monthly basis, on the 15' h day following the calendar month for the reporting period, VWWOS shall provide a summary report indicating all corrective maintenance and repairs conducted during the month. The reports shall consist of reports generated by the Computerized Maintenance Management System ( CMMS) as supplemented ( electronically altered, or by additional reports) to provide, at a minimum, the following information:
All initiated corrective work requests/ orders during the month. including date and description All corrective work orders completed/ closed during the month, including dates, description of problem, description of work accomplished, material cost and labor information.
All corrective work orders on which work progressed during the month, in terms of costs or labor expended.
A listing, with estimated costs, of major corrective maintenance planned or anticipated during the upcoming month.
A summary of maintenance cost expenditures to date, in comparison with budgeted costs, including projections through the end of the current contract year.
Page H- 1
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit I: Facility Process Flow Diagram and Site Plan
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Page I- 1
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit J: Facility and Site Security Requirements
The Services shall include:
Monitoring of all entrances and exits with motion detectors and video surveillance.
Securing access to the Facility and other structures on the Site with card locks or other devices approved by City, allowing access only by VWWOS and appropriate City staff, or their designees.
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AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit K: Service Fee
The monthly Service Fee, as of July 1, 2022, shall be $ 138, 761. 67.
All future amounts to be adjusted for inflation in each subsequent year as of July 1 of that year as set forth in Section 7.2( b) of the Agreement.
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AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit L
Points of Influent and Effluent Delivery
Points of Influent Delivery: At the points A1 through A6, as depicted on the following Diagram L- 1.
Points of Influent Deliverv: At the points B1 and B2 as depicted on the followinq Diaqram L-2.
Additional Veolia Valves: At the points B1 and 62 as depicted on the following Diagram L- 3.
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AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
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AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
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Page L- 3
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
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AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Exhibit M
VWWOS Acceptance Testing Procedures
The following are tests to be performed by VWWOS staff, the outcome of each of which must be acceptable to VWWOS, acting reasonably and consistent with Prudent Industry Practices:
1. Check control strategy and automatic operation of all gates from filtrate storage to chlorine contact basin. Verify that all gates are fully functional and control strategy allows for automatic adjustment to accommodate changes in flow and shutdown/ diversion as applicable. Failure to accommodate the necessary flow range or inability to transition for shutdown/ diversion will require adjustment to the control strategy prior to acceptance.
2. Check flow pacing operation of chlorine dosing.
a. This check should be performed multiple times during the day and on multiple days to verify flow pacing of chlorine during diurnal flow variations b. Calculate daily chlorine usage using the daily flow and check against the drawdown in the hypochlorite storage tank to validate chemical tracking c. Check operation of the chlorine dose trim loop by varying chlorine dose/ residual setpoints multiples times in a day as well as on multiple days.
d. Collect separate grab samples close to each chlorine analyzer/ probe and compare analyzer/ probe reading to onsite residual chlorine test results for verification. This testing also needs to be conducted multiple times in a day and on multiple days. e. Following the above checks, adjust the chlorine dose setpoint below the compliant contact time requirement to check the automatic operation of the compliance valves to the ESB.
If the system does not adjust accurately or timely to provide for the proper dosing for any of the above items, the control strategy will need to be adjusted and perform to meet acceptable disinfection limits .
3. Check control strategy of the dechlorination system and verify the flow pacing strategy adjusts timely and accurately. Checks should be performed as noted in Items 2a. through 2d. above for chlorination. Following checks on flow pacing strategy, the following additional checks should be performed to verify the trim strategy and ensuing residual chlorine. The trim strategy verification should be conducted on multiple days and at various chlorine dosages that will provide a broad range of residual chlorine concentration in the influent to the dechlorination basin. This verification should be carried out in a sequential manner to verify operation under various flow and load conditions. Each of the steps should be checked over a period of 24 hours to cover diurnal variations in flow and load.
a. Set the chlorine dosage at the design set point of 12 mg/ L. Set the bisulfite dosage to the dosage specified at 1. 3 mg/ mg C12 residual.
i. Monitor residual chlorine in influent to dechlorination, bisulfite feed rate, and chlorine residual at the midway probe in the dechlorination basin to ensure reaction is taking place at an acceptable rate to meet effluent residual allowances on a repeatable basis.
ii. Monitor changes in bisulfite feed rate as trimming occurs. Compare bisulfite usage with actual drawdown to validate dosage tracking
iii. Monitor chlorine residual in the effluent from dechlorination against compliance values. Randomly verify probe/ analyzer readings to results from grab sample analysis using onsite tests. Verify that effluent residual chlorine concentrations are below permit limits under all flow and load conditions. Failure to do so will result in changes need to the control loop prior to acceptance. b. Adjust chlorine dosage to a set point of 10 mg/ L. Keep the bisulfite dosage at 1. 3 mg/ mg.
Repeat steps i. through iii. in a. above.
c. Adjust chlorine dosage to a set point of 8 mg/ L. Keep the bisulfite dosage at 1. 3 mg/ mg.
Page M- 1
AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Repeat steps i. through iii. in a. above.
d. Repeat b. and c. at higher chlorine dosage rates of 14 mg/ L and 16 mg/ L. Failure to meet the reaction rate and acceptable treatment to comply with the NPDES permit will require a change to the control loop. The trim loop should automatically adjust bisulfite dosage based on midway residual chlorine concentration. If necessary to meet effluent residual chlorine levels increase bisulfite set point gradually by steps of 0. 1 mg/ mg until the required residual is met. Do not exceed the maximum bisulfite dose rate of 15 mg/ L which could lead to deoxygenation. If the process does not function within the dosage requirements ( 2mg/ L Min, 15 mg/ L max) and meet the effluent criteria in the NPDES permit for chlorine residual ( instantaneous grab), the system will not be accepted until such time as this can be achieved on a consistent basis.
Following the successful completion of the above tests, Veolia will continue to monitor the dechlorination system for a functionality testing period of at least one ( 1) year prior to full acceptance of the system, which will allow for checking the automatic operation of the various valves and gates. In addition, this period will allow for verification of alarms, etc., during normal operations as well as fluctuations in external factors such as seasonal changes. In order to achieve full acceptance of the Facility and effectiveness of the starred guarantee items in Exhibit C- 1, the Facility must achieve continuous operations for at least thirty consecutive days with no unexplained or unresolved functioning of the system ( including, but not limited to, under/ over dosing or lack of response to fluctuations in the flow/ demand for the chlorine or sodium bi- sulfite) ( the" Operating Conditions") during each quarter of the testing year( January to March, April to June, July to September, and October to December). If the Facility does not achieve the Operating Conditions for a particular quarter, then the guarantee for the starred items will not become effective until the Operating Conditions are met in the same quarter in a subsequent year.
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AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
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