08/29/2004 WED 14:00 FAX
AMENDrnNT ONE
TO THE
CITY OF RICHMOND WASTEWATER TREATMENT PACLLITY
CAPITAL IMPROVEMENTS, OPERATIONS,
MAINTENANCE AND MANAGEWNT AGREEMENT
BY AND BETWEEN
THE Crn OF RICHMOND, CALI-FORNIA
AND
VEOLIA WATER NORTH AMJZRICA OPERATING SERVICES, INC. (J?/K/A U.S.
FILTER OPERGTlNG SERVICES, LNC.)
DATED AS OF MAY 15,2002
THIS AIMEmMENT is entered into on the 7& day of &- 2004, by and between THE CITY OF RICHMOND, CALIFORNIA (the "City") and ~LTA WATER NORTH AMERICA OPERATTNG SERVICES, TNC., f&rly l&kvn as US FTLTER OPERATING SERVTCES, INC. (the "Company").
WHEREAS, City and Company entered into the City of Richmond Wastewater Treatment Facility Capita1 Improvements, Operations, Maintenance and Management Agreement dated May 15, 2002 (the "Ageement"), whi~h provides, among other things, for COMPANY to design and construct certain capital improvements at the City's Wastewater Treatment Facility (the "Facilityy') and for Company to operate, maintain and manage the Facility during the term of the Agreement; and
WEWREAS, the City currently owns, operates and maintains a separate sanitary sewage collection system ("Sanitary Collection System"), which consists of a network of an estimated 185 miles of sewer lines with appurtenant manholes, and 13 wastewater liift stations, and a stormwater callection system ("Stormwater Collection System"), which consists of an estimated 94 miles of stormwater main lines, 3,300 catch basins, 1,200 manholes, 6 miles of opm ditch, 6 miles of V ditch and 7 stormwater lift stations (the above Systems hereinafter collectively referred to as the "Collection System"); and
WHEREAS, the operation of the Collection System directly impacts the operation ofthe.
Facility under the Agreement; and
WHEREAS, Article XI of the Agreement provides that the City md the Clrmpany can agree to add additional services to the Agreement as may be mutually agreed to by the parties; and
WHEREAS, the parties now desire for the Company to operate, maintain and manage and perform construction management responsibilities with respect to the City's Collection System.
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.2 . .
NOW, THEREFORE, in mutual consideration herein described and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
1. '1%~ following definitions shall only apply to the Scrvices performed in connection with thc Collection System under this Amendment:
"Amendment Cummencement Date" is October 15,2004, or earlier as mutually agreed, "Capital Irn~rovemmts" means any expenditures for: (1) the purchase of new equipment or facility items that add to or replace elements of the Collection System; (2) the material improvcnlent or upgrade of dl or part of tlic Collection System; anhr (3) repairs tu the Collection System. All expmdtures in connection with Capital Improvements are the responsibility of the City.
"W' or "Cornbind Sewer Overflows" means the two locations in the Richmond system where the Sanitary Collection System is designed to ovcrflow into the Stormwater Colleciion System when the hydradic capacity nf the Sanitary Collection System has been reached, such ar during a storm event.
"Maintenance" means those routine and/or repetitive activities required or recommended by the equipment or facility manufacturer or by the Company to maintain the performance and maximize the service life of the various elements of thc CoUcction Systcm. "Renairs" means those non-muhcfnon-repetihve activities required for operational continuity, safety and performance generally due to failurc or to avert a 3hilure of the equipment or facilities or some component thereof of the Collection System. "SSOs" ..-- or "Sewer System Overflow" means overflows, breaks, blockdgas and backups of the Sanitary Collection System.
2. Operation of the Colle~tion Svstem. Company shall operate, maintain and repair the Collection System consistent with its present condition within the design capacity and operating capabilities of the installed equipment and piping and other components of the Collectiol~ System.
The Company will assume l'ull-risk for the operation, repair and maintenance of the City's existing thirteen (13) sanitary sewer and seven (7) storrnwatw lift slations upvn [he cumpletion of the budgctcd lift station capital improvements described in Exhibit A. Cvmpany shall monitor thc alarms installed at the scwcr and stormwater liwpumping stations and CSOs on a 24-hour-a-day/7-day-a-week basis, and Company shall measure the flow rates at strategic locations within the Collection System Ibllowing curnpletion of the SCADA system upgrade and thc pump station improvements des~ribed in Exhibit A. All liftlpumping stations repair and maintenance (WM) will be tracked using the Company's CMMS system, and Company shall pcrform planned maintenance of all critical equipment included in the Collection System. Thc opcration and maintenance of 09/29/2004 WED 14:00 FAX
the 1iWpumping stations will be included in the Company's overall operations and maintenance budget for the Collection System.
Company shall develop a plan utilizing as guidance the U.S. EPA's Drafi Capacity, Management, Operations & Maintenance (CMOM) guidelines dated March 2004 in m effort to (i) prevent or minimize sanitary sewer overflows or spills, (ii) minimize pump station spills, (iii) achieve the expected life of the managed assets included in the Collection System, (iv) mollitor and improve Collectinn System reliability and performance, and (v) efficiently use the City's fUnds alIocnted to the CvlIection System for operations and maintenance and to improve service reIiability of the Collectinn System (the "Management PIan")- The Management Plan will include the following elements:
Development of proper management, operation and maintenance procedures and performance measurements for thc Collection System.
This will be a~complished through the development of cleaning and televising strategies per the annual cleaning and televising frequencies proposed in this offering as well as the devdnprnent of a Hot Spas list for areas requiring more frequent maintenance until corrective measures can be implemented. AIso included will be written emergency response procedures for various emergencies, which couId arise from time to time.
1.1.1 Implementation of asset management and long-term planning geared to provide adequate system capacity for base and peak flows in the Collection System. This will be ac~omplished as described more thosuughly below through:
A. Use of WS software
B. Flow dala collection through basin monitoring
C. Rainfall modeling
D. GIS Mapping
E. A System Evaluation and Capacity Assurance Plan
F. A written summary of the Company's Management Plan
G. Documentation that all feasible steps to stop and mitigate impacts of Sanitary Sewer Overflows (SSOs) have been taken. This will be on a phased basis as Company accepts responsibility for the system maintenance per the proposed cleaning and televising schedule and will be subject to City approval for capital repairs and replacements.
Development of procedures to notify parties with reasonable putcntial of being exposed to pollutants from SSOs. This will bc the development of SOP'S for the Company to pruvide notification per regulatory requirements to the local State Water Board, local Health Deparlmeni: and the City of Richmond in the event of a Sanitary Sewer overflow. This will be done in ~oopcration with the City of Richmond Tndustrial Pretreatment Program (WP) group 08/28/2004 WED 14:01 FAX
who oversee all regulatory issues for the Collection System and csos.
H. Performance of rigorous self-audits through the Company's peer audit program to assess the quality of the Company's Management Plan.
H. Completion of a Company Management Plan summary report on an annual basis and providing that report to the City. At the City of Richmond's choosing, these rqorts may be supplied to regulatory agencies asfif this component of the CMOM is adopted.
2.2.3 The above services and Plans will be developed and performed based on the U.S. EPA's preliminary CMOM guidelines. In the went that the final CMOM rules or guidelines differ materialIy from the U.S. EPA's preliminary CMOM guidelines or thc services and Plans developed and pefiormed by the Company after the Effective Date of this Amendment, the parties will treat such material difierences as a Change in Law.
2.3 Maintenance of the Collection System wiIl be performed by the Company as part of the Annual Fee slated herein on a priority basis, with emergency itcms mmpleled first, and scheduled Maintenance performed in nccordance with the Company's Management Plan and the need and the date received.
2.4 Company shall develop and implement a plan to d13ciently use the City's capital hnds available for the C~llection System to reduce the City's current infiltratiodinflow (VI) problems as shown in Exhibit A. The exact allocations are subject to modification upon agreement between the City and Company.
2.5 Company shall assume responsibility for all rclevant customer service requirements related to the operation of the Collection System including response to routine and emergency calls and new service tap inspections. The Company shall coordinate its responses with the City's insurance and claims administration program to maintain consistency between the two programs.
2.6 Company will prcpare a plan for inspecting and maintaining the manholes in the Collection System on a four-year cycle. This work will be coordinated with the system cleaning program, and the manhole work will include replacing worn manhole rings and covers and adjusling manhole rings and covers for road construction. Data and information from the manhole inspection and m-aintenance reports will be used as the basis for identifying manholes that are in need of capital replacement or rehabilitation. The Annual Fee includes the labor and overhead needed to raise or lower 260 manholes per year. Funds tbr manhole matmials will be charged against the City's Capital Improvements budget.
2.7 Company wilI wvrk with the City to provide updated data and information showing sewer mains, manholes and lift stations for the City's Geographic Information System (GIs), including completion of electronic mapping and the Sanitary Collectic~n Systenl database,
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2.8 Company will maintain the easements for the lift/pump station easements, by mowing, clearing brush, controlling litter and performing Maintenance where needed at the lift stations.
2.9 In addition to regular line cleaning, the Company will be responsible fm cleaning so-called '?lot Spots" areas of the Collection System that persistently contribute tu averflows and other incidents. The Company will use the City's Hot Spots list a$ a starting point for identifying and cleaning problem areas. If: as part of this process combined with cleaning and televising, additional Hot Spots are identified, the Company will revise the list and supply a copy to the City on a monthly basis fir review. This review wiIl give the City an understanding of where the Hot Spots are, a$ well as those that can be controlled through regular cleaning (with a schedule for doing so) and those that can only be mitigated through capital improvements. Such. Hot Spots will be prioritized to a capital improvements list. An example of the latter would be where an 8" line chokes down to a 6" line.
2.1 0 Company will perform all repair and maintenance activities relating to the City's vehicles listed in Exhibit "E" as part of the Annual Fee; provided, however, City shall be responsible for replacing any such vehicles as deemed necessary by the parties.
2.1 1 Section 3.5(3) of the Agreement is hereby amended to read as fulullows; "(3) retain responsibility to perform meter reading and maimnance, enforce the Industrial Pretreatment Program, perform all regulatory duties, sampling analysis and reporting associated with the Starmwater Collection System and CSOs and perform long-tcrm Collection System and Service Area Planning;"
3. Capital Tmpr~vements. Company will assist the City in performing Capital Improvements to the Collection Systems as follows:
3.1 Company shall provide the City with turn-key services to implement a cornpreherlsive Sanitary Collection System rehabilitation program, utilizing the EPA's draft CMOM Program as guidance. The cost of the program will be paid by the City, with inilial fbnds derived fronl the 1999 Bond Issue of which approximately $22 million remains to be obligated. The methodology of the turn- key services is described below and generally includes scope deterniination, engineering services for the purpose of soliciting quotations from contractors, the solicitation of quatations from pre-qualified, invited, sub-contractors, execution of the construction work, and construction and project management and inspection.
3.2 Exhibit A is a pre1iminm-y CP broadly showing how the City couId invest the remaining $22 nillion of the 1999 sewer revenue bonds, including those funds previously obligated by the City for the program described in Exhibit B. This is an 09/29/2004 WED 14:02 FAX
estimate for allocation purposes and depending on the needs of each specific defined project, funds can be moved from one line item to another to meet the needs of the City.
As soon as possible, but not later than sixty days aC1er the effective date of this Amendment, Company will evaluate the CoIIeaion System capital projects already identified by the City and will provide a budget level project mst estimate along with firm pricing for engineering services with the intent of preparing detailed scope documents and drawings to solicit contractor pricing. The next step will be to obtain constru&ion pricing using the prqared documents. Company will work with pre- qualified sub-contractors by invitation only. Subcontractor selection will be made by Company based on the best overall subcontractor, aficr sub-conkdctm bids are summarized for and reviewed with thc City. The Company will then execute the projects in a tirncly manna- while the study and evaluation work discussed below is being coalpIeted.
3.4 Company shall serve as constructiot~ program manager for all Capital Improvement work, including conducting the competitive bidding process.
Company shall develop requirements for the pre-qualification of bidders, with an emphasis on Iocal firms, to perform capital work. Company shall review and award contracts to implement the Capital Improvements work.
3.5 Within nine (9) months of the commen~ement date of this Amendment, Company shall prepare and submit to the City, an interim CTP, with the express purpose of informing the City of the Collection System repairs/rehabilitationdreplacements that have been discovered during the initial stages of the work. Following the same procedure described in Section 3.2 above, Ccrmpany will conduct engineering design, soli~it quotes fiom sub-contrardors and meet with the City to select the sub-contractor to proceed with the work.
3.6 Within IS months of the commencement date of this Amendment, Company shall complete a comprehensive Capital Tmprovement Plan (CP) for the wastewater collection lines, manholes, sewage lift stations, stormwater pumping stations and rolling slock utilized to maintain these systems. The CP will consist of two parts: (i) those Capital Improvements that have becn identified for funding and completion with the remaining dollar balance of the 1989 sewer revenue bond; and, (ii) any additional Capita1 lrnprovements that should be made farmuIated into a five-year capital plan updated annually and reviewed by the City. -
3.7 Upon completion of the CIP, Company will continue with the recommended and prioritized capital work following the protocoI described in Section 3.2 above until the 1999 Bond Funds are expended. Should additional finding be necessary to complete the recommended and prioritized work, at the City's discretion, Company will work with the City to explore options for additional funding. 09/29/2004 WED 14:02 FAX
3.8 Company has performed a preliminary review of the condition of the 1ifWpumping stations. Most of them require Capital Improvements to bring them up to industry standards. Two need ta be replaced in their entirety. The Company's budget estimate for tl~e required Capital Improvements to the 1iWpumping stations is $3.2 million, which includes installation of emergency generators at each station as needed but excludes the Company's overhead and profit. Within 120 days of commencement: of this Amendment, the Company will complete the due diligence necessary to finalize the scope of work and pri~ing far the above Capital Improvements. Upon approvaI of the final scope of work and pricing by the City, the Company will complete all lift station Capital Improvements within 18 months. The Company will not assume full R&M risk for the lift/pumping stations until the Capital Zmprovements are completed. As the Capital Improvements for each pump station are completed, Company shall assume full R&M risk for the pump station under the Annual Fee subject to the terms of this Amendment.
3.9 The City will retain Company to perform an initial cleaning and Closed-Circuit Television (CCTV) inspection of the Collection System during the first two years of the Amendment.
3.10 Company will subsequently prepare a Systcm Cleaning Plan for cleaning all parts of the Collection Systcm on a four-year cycle, after the initial cleaning performed during the first two years. Problem areas will be cleaned on an as-needed basis, and hydraulic rodding will be used to clean facilities that are impacted by roots and grease. High pressure cleaning and vacuuming will be the primary preventive maintenance method used Ibr the Sanitary Collection System. The System Cleaning Plan will be updated every thee years in order to incorporate system additions. In additioq data and information from thcse cleaning rneports will be used to identify lines that are in need of capital replacement or rehabilitation.
Company may use an herbicide chemical treatment application for certain types of rout intrusions in sanitary sewer mains.
3.11 Company will use the City's CCTV irispection equipment to perForm inspections of problem areas or to perform routine inspections in the Collection System and to assess the internal condition of the overall wastewater collection lines and other appurtenances on a ten-year cycle after the initial televising performed during the fkst two years. Thcse inspections will be thoroughly documented in order to support the Company's operations and the City's Capital Tmprovoxnect Program (CIP). CCTV inspection will also be used to identify damaged pipe, rt~ot intrusion, grade problems, and grease buildups, as well as to pinpoint infiltration and illegaI inflows.
3.12 Company will work with the City to prepare annual budgets for repairing the Collection System. All repairs to thc Collection Systm shdl be paid for by the City as part of the City's CIP.
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3.13 During the third year of the Amendment, the parties will transfer the Enhanced Sanitary and Stormwater Program of the Capital Improvements work described above to the operations budgets included within the Annual Fee with appropriate changes to the Annual Fee as reflected in Exhibit C. Until such time, all Capital Improvements described above shall continue to be paid far by the City as part of the City's CTP.
4. Com~msation. Company's compensation for performing the Services described in this Amendment shall be as follows:
4.1 Company shall be paid an Annual Fee as shown in Exhibit C for operating and maintaining the Collection SyWem during the term of the Agreement. The Annual Fee shall be subject to adjustments as set forth in S~hedulc 5 of the Agreement.
The adjustments shall be made on the same schedule as the adjustments to the Facility Service Fee starting July 1, 2005.
3.1 The following items shall be considered Pass-Through Costs under Shedule 10 of the Agreement: electricity.; provided, however, Schedule 8 of' the Agreement shall not apply to such Pass-Through Costs.
4.3 Within 18 months of the Amendment Commencement Date, the City and Company may deveIop incentives whereby Company savings in the Annual Fee may be shared between the City and the Company.
4.4 Company shall be. paid by the City for Capital Improvement work based on monthly progress payments for the work completed and materials stored per industry standard, including Company's overhead and profit. Monthly invoices will be submitted with appropriate documentation to validate the amount requested.
Emplovees. On or before the commencement of the services described in this Amendment, the Company shall compIete its intmiewing of all current City employees involved with such sclvices whcther or not represented by collective bargaining representatives (the "City Employees") who are interested in and apply for a position with the Company. City Employees who apply for mployrnent with the Company shall be offered positions providing comparable wages and bencfits to their current City positions with the City. All City Employees may be required to take and pass Iawful drug testing as a condition of employment. Additionally, City Employees may be required to take a medical examination, the results of which shall not be a factor in their employment. During the first three (3) years of the Contract Term, he Company shall employ all City Employees hired as its employees in connection with the services performed under this Amendment.
5. I Orientation and Career Planning. Within the first two (2) weeks of starting to pedorm services under this Amendment, the Company shaIl conduct a Company orientation and career planning workshop or workshops at the Company's role 09/29/2004 WED 14:03 FAX
cost and expense for City Employees. The workshop($) shall apprise City Employees hired under this Section of applicable legal requirements relative to their employment rights, and shall orient the City Employees to the Company's managerrlent, operation and maintenance policies and approaches (and its plan for providing such services under this Agreement), its career planning policy, its hiring program and criteria and its compensation and benefits plans.
Comu~~Iovment. The Company shall provide City Employees hircd under this Section with a totd package of compensation and benefits comparable to nr better than compensation and benefits provided by the City for a minimum of thrce years following the Commencement Date. The Company acknowledges that it has agreed to recognize and bargain in good faith with the City Employees' collective bargaining representatives, if applicable, to determine he specific terms md conditions of employment to which such City Employees wilI be subject. All City Employees hired under this Section shall receive year for year credit for years employed by the City for purposes of eligibility and vcsting in the Company's benefits programs. A11 City Employees and dependents currently covered by the City's health insurance program shall be covered during the employment of the City Jimployees under the Company's health insurance program without disqualification for pre-existing conditions.
5.3 Continued Employment. During the three-year period described in Section 5.2 above, he Company shall make available training and development provisions for then existing personnel to transition to future operations. The Company may reduce staffing numbers following the thee (3) year period with preferred approaches being voluntary attrition, buyouts, relocation and transfers rather than layoffs. Tnvoluntary layoff's of City Employees hired by the Company are not permissible during the three year period described above. Employees may be terminated for cause or work-related p~fumnce at any time. Notwithstanding the foregoing, the Company's commitment to employ a City EmpIoyee under this Section 5 shall end upon the earlier of (i) the end of the three year period following the start of services under this Amendment; (ii) said City Employee reaching retirement age or (iii) earlier as mutuaIIy agreed by the City Employee and the Comlpa~ly. Notwithstanding any other terms of this Amendment or the Agreement to the contrary, nothing in this Amendment or the Agrcement shaIl be construed to obligate the Company to maintain minimum stflng levels for services provided under this Amendment or the Agreement unless such stafEng levels are required to meet the performance requirements of the contract or the applicable legal and regulatory requirements.
5.4 City wilI offer to buy-out the current full-time employees of the Collection System (see Exhibit D attached hereto) similar to the buy-outs that occurred in connection with the Facility. The buy-outs shall be no greater than 12 months of full-time salary and 6 months of City-provided COBRA benefits for each eligible employee as shown in Exhibit D. Cumpany shall reimburse the City for amounts paid by the City to the ment Collection System employees in connection with such buy-outs. 09/29/2004 WED 14:03 FAX
I
I
6 Industrial Pre-Treatment Standards. The Annual Fec paid to Carnpany for operation and maintenance of the Collection System assumes that 5111 customers and users of the City Collection System that utilize and/or make discharges into the Collection System shall meet federal, state and Iocal pre-treatment standards and Applicable Law. City agrees to indemnify, defend and hold Company hmlcss from any and all claims, damages and losses to the eKtent that the same are caused by the faiIure of such customers/users tn comply with any or all applicable federal, state and local pre-treatment standards and Applicable Law.
Sewer System Overflows. Company shall establish a program to minimize claims and deal effectively with customers that do file claims against the City. Within 90 days of the commencement date of the Company's Services under this Amendment, Company shall establish (i) a routine, normal scwer line preventative maintenance program, and (ii) corrective procedures to be implemented in the event of any personal injury or property damage resulting from a sewer back-up. The program and procedures described in the previous sentence shall include a provision requiring the prompt notification of appropriate City personnel. Emergency calIs for service from residences and businesses will be received and responded to 24 hours per day, 7 days per week, 365 days per year.
Company will respond to CoIlection System pump station emergencies, and SSOs, and be on-site within two hours from receiving notice of such SSO occurrences. The approach that wilI be used in these responses will follow the protocol defined here:
6.0 If the cause of the SSO is identified as a broken or blocked service lateral, Company personnel on site will then notify the appropriate City code mforcement officiaI as appropriate per City protocol and the customer of the problem. The customer will be responsible fir repairing the break or clearing the bIockage and making the necessary repairs. If cleanup on public property is required, Company will perform this work on a time and inaterials basis and submit supportive documentation with an awompanying invoice to the City, which the City will pay unless the Company is determined to be at fault under Section 8 below.
6.0 Repairs made to the Collection stern of 525,000 or greater, excepting amcrgency repairs, shall require the Company to submit a description of the work and a fixed cost to the City, prior to performing the work. The City shall provide approval of such requests within five (5) business days of receipt. In the case of an emergency, a dcscription and invoice of the work performed will be provided within five (5) business days of completion of the emergency work. The Company shall make all reasonable efforts to notify the City of the need for emergency repairs prior to starting the work but the inability to contact the City shall not prevent thc work finm being completed.
7.3 If the cause of the SSO is identified as a broken pipe or blockage on the City's portion of the Collection System, thcn the Company person on-site will mange to have the broken pipe repaired or the blockage cleared, and the area cleaned up. Tf the cause is a pump station failure, Company will take immediate action to get the 09/29/2004 WED 14:04 FAX
facility back in service. In either event, the Company shall (i) document the approximate date and time of the problem; (ii) determine Ihr: extent of the personal injury or property damage, if any; and (iii) provide notice to City's insurance carrier of the potential loss cIaim and (iv) make necessary calls and reports to regulatory agencies. The City will be icsponsible for thc cost of repairs and any claims unless thc Company is determined to Be at fault under Section X bdow.
7.4 Company will keep a log of dl SSO occurrences and provide a monthly summary to the City.
7.5 If a citizen fiIes a claim against City or Company, Company will notify the City, or the City shall notify the Company, and a third-party insurance carrier ~nutually agreeable to the City and Company, which will make a determination of liability and whethel- or not to pay the claim filed by the citizen. The City will be responsible for the cast of repairs and any such claims, if the claim is related to a main line failure or interruption, unless the Company is determined 10 be at fault under Section 8 below.
Except to the extent provided in Section 8 below or to the extent caused by the negligence or willfhl misconduct of Company, aficr completing the prucedure set forth in this Section, Company shall have no furhw responsibiIity or liability to the citizen or City for the personal injury or property damage caused by the sewer back-up or the consequences thereof.
8. Comva~esponsibilit~ for SSO O~currences. Company will reimburse the City and assume responsibility for SSO occurrences as follows:
8.1 As described in this Amendment, Company will inspect (through CCTV) on a ten-year cycle, clean a specific podion of the Collection System on a four-year cycle and will repair problems discovered during such inspection and cleaning in accordance with provisions of the Capital Improvement; Program. Company shall. not have any responsibility for SSO occurrences .until the particular section of the Collection System has been inspected, cleaned and repaired if necessary at least once during the term of the Agreement. Thereafter, the Company's responsibility will be determined in accordance with Section 8.2 bclow,
8.2 After a section of the Collection System has been inspected, cleaned and repaired if necessary by the Company, the Company's responsibility for a SS~ occurrence in that section of the Collection System will be determined by a third party insurance adjustcr (the "Adjuster") that is selected by mutual agreement of the parties and paid for by the Company's insurance provider. The Adjuster shall be familiar with the terms of this Agreement and shall investigate the $SO or claim.
Such investigation shall include as appropriate relevant information provided by the partics, visits to the SSO site and interviews with &'act witnesses. The Adjuster shall then issue a recommendation, which shall be final ten days after issuance 09/29/2004 WED 14:04 FAX
unless the City andlor the Company have a good faith objection to the recommendation. If the Adjuster's recommendation becomes final and the Company's fault is determined to be the sole cause of the SSO, the costs for repairing and remedying the SSO and any attendant claims shall be pa.id directly by the Company or its insurance carrier (or reimbursed to the City as appropriate).
If the Adjuster's recommendation becomes final and Company's fault is not determined to be the sole cause, the costs for repairing and remedying the SSO and any attendant claims shall be paid directly by the City or its insurance carrier less the partion if any, that is determined to be attributable to the fault of the Company.
The City shall retain ownership of the Collection System and maintain overall ownership responsibility for Collection System. The City shall continue to maintain insurance coveri~ig claims arising from the Collection System, and the City shall continue administering, defending and resolving claims under such insurance progq including making payment in ~lemcnt thereof $ubje~t to the right ta reimbursement fiom Company as provided in Sections 7 and 8 above. In no event will Company be construed as the owner of the Collection System for purposes of asserting or responding to claims arising from the ownership of the Collection System, including, without limitation, strict IiabiIity claims.
8.2.2 Examples of circumstances under which the Company may be determined to be responsible for a SSO occurrence and claim are;
- The Company has not cleaned the portion (after the initial cleaning, televising and repair of the section) of the Collection System experiencing the SSO in the required frequency and there was a blockage in the main line as a
- The Company's action directly resulted in the particular damage to the property such as hydraulic pressurization of a gravity line by the Company that causes damage.
- The failurc ofa lift station related to a mechanical failure of the Iift station that does not constitute an UncontrollabIe Circumstance under the Agreement (after initial capital improvements have been completed).
8.2.3 Examples of circumstances under which the Company will not be determined to be responsible for an SSO occurrence and claim are:
- Dcbris has been discharged or disposed of into the Collection System that results in o $SO occurrence (whether the responsible party is identified or not).
- Grease or other viscous substance causing plugs in the Collection System where the Collection System has bean cleaned by the 08/29/2004 WED 14:04 FAX
Company in the agreed upon frequency (whder thc responsible party is identified or not).
- Any backup or blockage (whether or not the cause or responsible party is determined) where the CoIlection System has been cleaned by the Company in the agreed upon frequency.
- Manhole lid breaks/flips/open holes and vehicle damage or pedestrian accidents unless the Company has been notified of such event, has not responded within two (2) hours and has failed to remedy the problem within a reasonable time period.
- SSO property damage and compliance related to flows exceeding the hydraulic capacity of the system or due to shcturaI failure of the Collection System or design flaws of the CoIIection System. - Structural failures of the Collection System piping and appurtenances.
.. Design flaws of the Collection System where the full hydraulic capacity of the system wouId result in property damage (example:
a basement flow drain at the 50% elevation or the Collection System line).
- Any damage related to service line plugging or failures.
8. Defects and Undiscovered Adverse Conditions. If during the investigations performed by the Company dwkg the fir~2 two years of this Amendment (i) the Company discovers information about the condition of the Collection System that materially differs fiom the information provided to Company prior to execution of this Amendment and (ii) such informatian substantialIy impacts the ability of the Company to meet the performance objectives described herein or causes a material increase in the operating and maintenance costs incurred by the Company to meet such performance objective, the Company shall be entitled to an equitable adjustment of each and every performance objective impacted by such new information and/or an equitable adjustment in the Annual Fee.
10.1 City shall fund all necessary Capital Improvements required hereunder, including without limitation, Capital Improvements needed to repair or replace the Collection System or to maintain the Collection System in a physical condition that is adequate to provide the service far which the Collection System was designed and constructed. Priority shall be given to meeting regulatory requirements, including safety and health requirements. Any Ioss, damage, or injury resulting from the City's failure to fund and construct Catal Improvements, whether reasonably requested by Compaq ur otherwise, shall be the sclle responsibility of the Cily .
10.2 City shall keep in force all warranties, guarantees, easements, permits and licenses that City may have with respect to the Collection System. 09/29/2004 WED 14:05 FAX
10.3 City shall pay all sales, excise, vulr~mrn, property, franchise, oc~upational and disposal taxes, or other taxes associated with the Capital Improvements program, if any, other than taxes imposed upon Company's net income andor payroll taxes for Company employees. In the event Company is required to pay any sales tax or use taxes on he value of the services provided by Company hereunder or lhe services provided by any subcontractor of Company, such payments shall be reimbursed by City, unless City hrnishes a valid and properly executed exemption certificate relieving City and Company of the obligation for such taxes.
Jn the event City hishes an exemption certificate which is invalid or not applicable to services by Company, City shall indemnify Company for any taxes, interest, penalties, ad increment costs, expenses or fees which it may incur as a result of Company's reliance on such certificate.
10.4 Consistent with the Company's Safety and Security Plan, the City shall provide the Collection System with appropriate devices to protect against any losses resulting from the theft, damage, or unauthorized use of property owned by the City and shall accept liability for such losses, cxcept to the extent such losses are directly caused by the negligent acts or omissions of Company.
10.5 City shall provide far Company's exclusive use of a11 City vehicles and equipment presently used for operating the Collection System. City shall provide Company with maintenance records, current upon the commencement date of this Amendment, on all such vehicles. City shall continue to provide and maintain a11 property insurance, registrations and Iicenses for City's vehicles and equipment used in connection with the Collection System as listed in Exhibit E.
10.6 Company shall be entitled to an equitable adjustment of its perfixmance obligations and compensation in the event that the condition of the Collection '
System is materially different than during the period between the initial. inspection of the Collection System by Company and the commencement date of the Amendment.
30.7 City shall provide all traffic control I-equired for the cleaning, televising, repairing and rnaintemn~e of the Collection System as required by the Company, including Police Service as needed to pruvide a safe working condition for those engaged in such work and the general public.
9.7 City shall provide and pay for disposal costs, including landfill tipping fees, for all material, removed fbm the City's Collection System as a result of cleaning, maintaining, televising or repair of the system.
9.7 City shall provide equipment and funding for odor control and corrosion control systems recommended by the Company and approved by the City. Such equipment may consist of chemical scrubbers, bio-filters, liquid chemical addition or other systems as tnay be needed to eliminate or control odors and corrosion originating in the Collection System.
09/29/2004 WED 14:05 FAX
I
9.7 City shall provide all permitting and regulatory monitoring and reporting reluted to the CSO discharges and all storm water discharges (currently provided by the City Induslrial Pretreatment Propnl staff). City shall, retain all responsibility and liability for the CSO discharges and all storm water discharges sub-ject to the Company's agreement hersunder to operate the flow monitoring deviccs related to the CSO as part of the overdl operation of the Collection System.
10.11 Early Termination - Should thc City decide to terninate this Agreement with Company prior to the end of its term for any reason, City shall pay to Compmy the amount shown in Exhibit F to reimburse the Company the costs of start-up, mobilization and dernobili~ation for the work described in the Amendment in addition to any other amount owed to Company by the City under the Agreement.
11. Effective Datc, Start Date and Term. This Amcndrnent shall talce effect upon thc date first entered above unless otherwise provided for herein. Company shall begin c~perations of the Collection System on October 15, 2004, or earlier as mutually agrced and the Company shall continue such operations until the Agreement is terminated in accord-dnce with the lcms of the Agreement.
Ap~lication of Terms. 'l'he performance and compensation rights and obligations contained in this Amendment am exclusive and shall control with respect to the Collection System services to be performed under this Amendmcnt. Unless otherwise specifically agreed to by the parties in this Amendment, nothing in the Agreement pertaining to the Facility shall reduce the compensation owed to Company for performing the Collection System services described in this Amendment or increase the costs to Company of performing thc Collection System serviccs described in this hmcndrnenl.
Subject to the above requirement, the terns of the Agreement shall apply equally to the services performed under this Amendmcnt, including wihout limitation, the terms of Articlcs VII pertaining to Liability, Insurance, Uncontrollable Circumstances and Indemnification thc tcrms of Article VITT uT the Agreemelit pertaining to Events of Default,, Remedies and Termination. Unless otherwise stated herein, the provisions of Articles IV, V and VT and Schedulc 8 of the Ageernent shall not apply to Collection System services performed undcr this Amendment,
13, All terms of the Ageernent not ~pecifically amended or modified by this instrument shall rcmain unmodified and in full force and effect. The terms of this Amendment rgrescnt the entire agreement bctween the City and the Company with respect 20 the Collection System and supersede all prior verbal or written representations, statements, understandings or agreements with respcct to the subject matter of this Amendment. Any waiver, modification or amendment of the terns of this Amendment shall he effective vnly i fin writing and sigued by an authorized representative of each party hcrcto.
WHEREFORE, both partics indicate their ~pprovd of this Amendment by their signature below and each party warrants that dl. action necessary to bind the parties to the terms uT this Agreement has been taken.
09/29/2004 WED 14:05 FAX
City of Richmond, California Veolia Water North America Operating Services, Inc.
BY:; B
Print Name: R~QM d tf~ YCq Pri
u
Title: Hrr~i-har Llry IYflN~re~ Title: JBni f' / Cn - I 0 09/29/2004 WED 14:06 FAX
Task Description
NXEIBrn A
CAPITAL IMPROVEMENT PLAN
Totals
Sewer System Investigations (Pre-Engineering, Exhibit
A B)
$7 93.21 1
B Enhanced Sanitary and Stormwater Program $5,887,594
The following tasks represent some of the primary components that a sanitary and stormwater program a city the size of Richmond should consist of.
Only those items that am necessary far the ongoing operation of the two systems will be transferred to the operating budget as funds become available:
State-of-the art equipment
Deferred maintenance
Regular system cleaning and televising
Deferred system cleaning and televising
Vehicle replacement
C Capital Work to be Performed
09/29/2004 WED 14:08 FAX
PROPOSAL TO PROVIDE ENGTNEERlNG SERVICES
JUNE 11,2004
09/29/2004 WED 14:08 FAX
EXHJEIT C
ANNUAL FEE
Annual Fee at Amendment Commencement Date
Annual Fee Starting 24 Months Mer Amendment
Commencement Date, (including the transfer of
elements of the Enhanced Sanitary and Stormwater
Program included in Exhibit A to the. Annual Fee)
.- -
$1,334,190
$2,997,671
09/29/2004 WED 14:06 FAX
EXBlBTT D
EMPLOYEES ELIGIBILE ROR BUY-OUT OF'F'ER PER SECTION 5.4 Costs Based on Richmond Sanitary 8 Storm Collections
Staff Information as of March 8,2004
51.7% City benefrt rate includes vacation, sick leave, holiday, medical, dental, vision, professional development, retirement (employer and employee costs). LTD. Life insurance 8 workmans comp. 4 N
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